Raley v. Carter

• Court: Court of Appeal of Louisiana
• Writing for the Court: ELLIS
• Citation: Raley v. Carter, 401 So.2d 1006 (La. App. 1981)
• Decision Date: 26 May 1981
• Docket Number: No. 14118,14118
• Parties: James RALEY v. James CARTER, et al.

Page 1006

401 So.2d 1006

James RALEY v. James CARTER, et al.

No. 14118.

Court of Appeal of Louisiana, First Circuit.

May 26, 1981.

Rehearing Denied Aug. 5, 1981.

James J. Zito, Baton Rouge, for plaintiff and appellee.

Charles W. Franklin, Franklin, Moore & Walsh, Baton Rouge, for defendants and appellants.

A. Shelby Easterly, III, Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendants and appellees.

Before ELLIS, COLE and WATKINS, JJ.

ELLIS, Judge:

The issues raised by defendant-appellant James Carter as to liability, contributory negligence and quantum are adequately disposed of by the reasons for judgment assigned by the trial judge, which we attach hereto as an appendix and adopt as our own.

The final assignment of error relates to the failure of the trial judge to reduce the judgment rendered herein by 75 per cent because three of the four defendants settled with plaintiff on the morning of the trial, and were released by him.

The record shows that on the morning of the trial, the suit was dismissed, with prejudice, as to F. D. Foster, Leonard W. White and George C. Anderson, all of whom were alleged by plaintiff to have failed in various duties owed him, and consequently to have been solidarily liable with defendant James Carter for plaintiff's injuries. The suit was then tried as to Mr. Carter and his insurer, without objection from either party. No evidence was adduced by either party tending to prove or negate liability on the part of Messrs. Foster, White or Anderson.

It is settled law that, when there are four joint tortfeasors, and three of them are released by the plaintiff, plaintiff can only claim one fourth of the total award made in a suit against the remaining tortfeasor. Article 2100, Civil Code; Harvey v. Travelers Insurance Company, 163 So.2d 915 (La.App. 3rd Cir. 1964). The negligence of those parties released from the suit may remain an issue in the trial, since the remaining tortfeasor is entitled to a reduction of the award only if the parties released are proved to be joint tortfeasors. If they are found not to be liable, the remaining tortfeasor is not entitled to a reduction. Harvey v. Travelers Insurance Company, supra. Wall v. American Emp. Ins. Co., 386 So.2d 79 (La.1980).

In cases in which the point of the liability of the released parties has been raised by supplemental pleadings, or in which the pleadings have been enlarged by the receipt of evidence on the point without objection, courts have placed the burden of proving the negligence of the released tortfeasors on the remaining defendant, despite plaintiff's allegations of their negligence. See Hall v. Hartford Accident & Indemnity Co., 278 So.2d 795 (La.App. 4th Cir. 1973); Wall v. American Emp. Ins. Co., supra.

Under certain circumstances, however, the plaintiff's allegations of negligence and liability on the part of those released from the suit may become binding on plaintiff. In the case of Danks v. Maher, 177 So.2d 412 (La.App. 4th Cir. 1965), there was a settlement with one defendant, during the course of the trial, and the trial was continued as to the other two defendants. When considering the question of whether the released defendant was a joint tortfeasor, the court said:

"Ordinarily, on this question the burden of proof would rest upon the hospital and its insurer for they are the parties who now make that assertion. See Harvey v. Travelers Insurance Co., infra, 922. But here the case was tried practically to its completion before the settlement agreement was entered into and before the motion to dismiss was made. Until then the burden we are discussing was upon the plaintiff and appellants had no forewarning at all that they would be forced to carry such a burden. Under these circumstances it would be manifestly unfair to hold that the burden of such proof rests upon the appellants. However, we believe it unnecessary to make any determination relative to that burden.

"Plaintiff's petition pleads the doctrine of res ipsa loquitur, alternatively alleges joint and concurrent negligence on the part of the doctor and the hospital, and prays only for a judgment in solido against all of the defendants. And in solido judgment could be rendered against all defendants only if the doctor and the hospital are joint tort-feasors. We are of the opinion that plaintiff is bound by her pleadings. Wilson v. Scurlock Oil Company, La.App., 126 So.2d 429. Accordingly, insofar as the present question is concerned, we hold that the doctor and the hospital are joint tort-feasors."

In this case, there is no evidence in the record from which we might determine the negligence or non-negligence of the parties released. The point must necessarily be decided against the party having the burden of proof. As in the Danks case, supra, we are of the opinion that it would be inequitable to place the burden of proving the negligence of the released parties on the remaining defendant, when the settlement and release took place on the morning of the trial. At that trial, plaintiff must have been prepared to make proof of their negligence, whereas the remaining defendant was only prepared to go forward with his own case. Under the circumstances, we find plaintiff to be bound by his pleadings, and that the released defendants are joint tortfeasors.

The trial judge made a total award of $140,878.98 for plaintiff's damages, which we have found to be well within the bounds of his discretion. However, the judgment must be reduced by 75 per cent in the light of our finding above.

The judgment appealed from is therefore amended so as to reduce the amount thereof to $35,219.74, and, as amended, it is affirmed. Costs of this appeal shall be equally shared by the parties hereto. All other costs shall be borne by defendants.

AMENDED AND AFFIRMED.

APPENDIX

This case involves a suit by an employee against a supervisor of his employer, commonly referred to as an "executive officer" liability suit. The plaintiff, James C. Raley, alleges in his petition that on February 4, 1976, he was involved in an accident at the Shell Chemical Plant in Geismar in this Parish. At the time of the alleged accident, the plaintiff claims that he was employed as a millwright by Continental Fremont Company, which was under contract for the construction of a large water purification tank at the Shell Plant site. The plaintiff alleges that at the time of the accident, he was directing a crane operator in lifting and placing certain materials from the outside of, to the inside of the partially constructed tank. While performing his duties, the plaintiff claims that he was required to walk along a catwalk surrounding the tank, and that in doing so, he stepped into an open hole in the catwalk, thereby incurring injuries. In his petition, the plaintiff named the following individuals as defendants, whose negligence he claims caused the said accident which resulted in his alleged injuries and damages: James Carter, job superintendent of Continental Fremont Company; Wes White, safety officer of Shell Chemical Company; and, F. D. Foster, plant manager of Shell Chemical Company. Also named as a defendant was Nationwide Insurance Company, alleged by the plaintiff to be the liability insurer of Continental Fremont Company.

The plaintiff further alleges in his petition that as a result of the said accident, he has sustained serious injuries, including a herniated lumbar disc for which surgery was required. He claims that the said accident has caused him substantial physical and mental pain and suffering and has resulted in his being rendered permanently disabled. He also alleges that the said accident has caused him to lose wages and to incur medical expenses in the past, and that, in the future, he will lose additional wages and incur additional medical expenses.

All of the defendants answered the plaintiff's petition by denying generally that they are liable for the plaintiff's alleged injuries and damages, and alleged that the plaintiff's alleged injuries and damages were caused by his sole negligence, or alternatively, by his contributory negligence.

The plaintiff later amended his petition twice: first to increase the amounts of damages he allegedly suffered in the accident; and second, to name George C. Anderson, project manager of Shell Chemical Company, as an additional defendant to the lawsuit, alleging that Anderson was also liable, along with the other named defendants, for the alleged injuries and damages suffered by the plaintiff as a result of the alleged accident. All defendants denied the allegations of the amended petitions.

Defendant Nationwide Insurance Company, as workmen's compensation insurance carrier for Continental Fremont Company, thereafter filed a petition of intervention, seeking recovery of the workmen's compensation and medical benefits paid to the plaintiff following the alleged accident.

The case was set for trial on its merits on November 8, 1979. On the morning of the trial, the plaintiff and defendants F. D. Foster, Wes White and George C. Anderson, the three employees of Shell who were made defendant, entered into a settlement agreement. Because of said settlement, the plaintiff's suit and the intervention suit of Nationwide Insurance Company were dismissed insofar as the said three individual defendants were concerned.

Also prior to trial, all defendants entered into a stipulation concerning the intervention claim of Nationwide Insurance Company. The written stipulation provided in part that if a judgment was rendered in favor of the plaintiff and against defendants James Carter and/or Nationwide Insurance Company, then the judgment would be reduced by the amount of workmen's compensation and medical benefits previously paid to the plaintiff as set forth in the stipulation. The stipulation further provided that if a judgment was rendered in favor of the plaintiff and against any defendant, then said judgment would...