Perkins v. Scaffolding Rental and Erection Service, Inc., 90-CC-0647
| Decision Date | 22 October 1990 |
| Docket Number | No. 90-CC-0647,90-CC-0647 |
| Citation | 568 So.2d 549 |
| Parties | George L. PERKINS and Ruth Perkins v. SCAFFOLDING RENTAL and ERECTION SERVICE, INC., et al. 568 So.2d 549 |
| Court | Louisiana Supreme Court |
Page 549
v.
SCAFFOLDING RENTAL and ERECTION SERVICE, INC., et al.
Page 550
A. Lane Plauche, Jeffrey M. Cole, Plauche, Smith & Nieset, Lake Charles, for Conoco Inc. defendant-applicant.
Joe A. Brame, Brame, Bergstedt & Brame, Lake Charles, for Scaffolding Rental & Erection Serv. defendant-applicant.
Robert L. Beck, Jr., Alexandria, for Ruth & George Perkins, plaintiffs-respondents.
Sidney L. Shushan, Guste, Barnett & Shushan, New Orleans, Counsel for Scaffolding Rental and Erection Service Inc., et al., defendants-applicants.
Lee Gallaspy, Baton Rouge, Raggio, Cappel, Chozen & Berniard, Lake Charles, for Globe Indem. Co. Other.
MARCUS, Justice. *
George L. Perkins was employed as a pipe-fitter by J.W. Contractors, Inc. when he alleged he was injured in a fall from scaffolding. Perkins and his wife sued Scaffolding Rental and Erection Service, Inc., Safway Steel Products, a division of Figgie International, Inc. ("Safway"), and Conoco, Inc. alleging that the accident occurred at Conoco's refinery and that his injuries, including a fractured right femur, "were caused by the defective, deteriorated, improperly installed and dangerous condition of the scaffolding and/or appendages thereto." Damages sought included pain and suffering, mental anguish, medical expenses, lost earnings, and loss of consortium. Conoco filed a peremptory exception of no cause of action. The trial judge sustained the exception and ordered plaintiffs to amend their petition within ten days to state a cause of action against Conoco, failing which the petition would be dismissed with prejudice. Plaintiffs failed to amend the petition. Subsequently, the trial judge rendered a judgment dismissing Conoco with prejudice. Plaintiffs did not appeal, and the judgment became definitive.
Two years after the suit against Conoco was dismissed, Safway filed a third party petition against Conoco seeking indemnification and contribution from Conoco in the event Safway was held liable to plaintiffs. Safway alleged that any defect in the scaffolding "resulted from improper erection and maintenance of the scaffold, [which] should have been detected by [Conoco if it] had properly performed its duty as owner of the premises to inspect the scaffold prior to its use by any workers on [its] premises." Conoco filed an exception of no cause of action on the ground that previously it had been dismissed with prejudice from the suit. The trial judge overruled the exception. Conoco applied for supervisory writs to the court of appeal which granted the application. Finding that Safway's third party demand failed to state a cause of action against Conoco for indemnity or contribution, the court reversed the judgment of the trial court, maintained the exception of no cause of action, and allowed Safway twenty days to amend its petition to state a cause of action against Conoco based upon indemnity. 1 On Safway's application to this court, we granted certiorari to review the correctness of that ruling. 2
The sole issue for our determination is whether third party plaintiff (Safway) has a right of contribution against alleged co-tortfeasor (Conoco) when plaintiffs' action has been dismissed with prejudice against Conoco by a definitive judgment based on an exception of no cause of action. Before answering this question, we must determine whether Safway's sole source of contribution is subrogation and, if so, whether plaintiffs have any rights to subrogate to Safway since their claims against defendant (Conoco) were dismissed with prejudice.
The right to contribution is set forth in article 1804 of the civil code which provides in pertinent part: "A solidary obligor
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who has rendered the whole performance, though subrogated to the right of the obligee, may claim from...To continue reading
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