Palmer v. Walker

• Decision Date: 12 January 2010
• Docket Number: No. 09-CA-756.,09-CA-756.
• Parties: James PALMER v. Christopher WALKER, Brandon J. Enterprises, LLC d/b/a Scooters Chicken Delivery and United American Indemnity, Ltd. d/b/a United National Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

31 So.3d 443

James PALMER
v.
Christopher WALKER, Brandon J. Enterprises, LLC d/b/a Scooters Chicken Delivery and United American Indemnity, Ltd. d/b/a United National Insurance Company.

No. 09-CA-756.

Court of Appeal of Louisiana, Fifth Circuit.

January 12, 2010.

Harold M. Wheelahan, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.

Mickey S. Delaup, Stephanie L. Cook, Attorneys at Law, Metairie, LA, for Defendants/Appellees.

31 So.3d 444

Panel composed of Judges CLARENCE E. McMANUS, JUDE G. GRAVOIS, and MARC E. JOHNSON.

MARC E. JOHNSON, Judge.

The Plaintiff, James Palmer, appeals a judgment in an automobile accident case that granted a peremptory exception of res judicata and/or motion for summary judgment filed by Defendants, Brandon J. Enterprises, L.L.C. d/b/a Scooters Chicken Delivery (Scooters), and United National Insurance Company (UNIC). We affirm.

At the time of the accident in September of 2007, Defendant, Christopher Walker, was returning to his employer's restaurant after making a delivery when his vehicle struck the Plaintiffs car. Walker was in the course and scope of his employment with Scooters, a restaurant located in Jefferson Parish. The accident happened when Walker swerved into the left turning lane of Louisiana Highway 45 from the adjacent lane. Walker's vehicle struck the passenger side of the Plaintiffs vehicle causing Plaintiffs damages. Walker was in a car owned by Jessica Sail, who was insured by Unitrin Specialty Insurance Company (Unitrin).

In March of 2008, the Plaintiff settled his claims against Sail and Unitrin for $10,000.

In August of 2008, the Plaintiff filed suit against the Christopher Walker, Scooters, and Scooters' insurer UNIC. In April of 2009, Scooters and UNIC filed a motion for summary judgment and/or an exception of res judicata citing the compromise and settlement agreement between the Plaintiff, Sail and UNIC. They contended that the Plaintiff failed to reserve his rights against them in the settlement and compromise agreement; thus they were released as well.

A hearing on the motion and/or exception was held in July of 2009. The trial judge rendered a judgment in favor of Scooters and UNIC on July 30, 2009, finding that the Plaintiff compromised all his claims in regard to the accident.

On appeal, the Plaintiff asserts that the trial judge erred by failing to recognize that an obligee need not expressly reserve any rights against solidary obligors as a reservation of rights against solidary obligors is presumed by law. Secondly, he contends that the trial judge erred by not considering evidence of the obligee's intent in confecting the agreement.

The pertinent language of the release states that:

For the Sole consideration of ... I/we hereby release and discharge Jessica Sail and __________ FINANCIAL INDEMNITY COMPANY, together with all other persons, firms, and corporations from any and all claims, demands, damages, consequential damages, actions and judgments which I/we now have or may have, in law or in equity, arising out of any and all personal injuries, damages, punitive damages, expenses, and any loss or damage resulting or to result from an accident occurring on or about 9/15/2007 at or near Marrero, LA. Emphasis added.¹

A summary judgment motion is the appropriate procedure to use when the matter has been compromised and settled. Brown v. Drillers, Inc., 630 So.2d 741, 747 n. 7 (La.1994). Furthermore, a plea of res judicata may be raised by motion for summary judgment when there is no genuine issue as to any material fact. R.G.

31 So.3d 445

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