Rutkowski v. State

• Decision Date: 14 September 1989
• Docket Number: No. 88-CA-0024,88-CA-0024
• Parties: Regan McBride RUTKOWSKI and Morgan McBride Knight v. STATE of Louisiana, Louisiana Department of Transportation and Development, Mississippi River Bridge Authority, Lexington Insurance Company and its Agents, Continental Casualty Insurance Company. 550 So.2d 257
• Court: Court of Appeal of Louisiana — District of US

Page 257

550 So.2d 257

Regan McBride RUTKOWSKI and Morgan McBride Knight v. STATE of Louisiana, Louisiana Department of Transportation and Development, Mississippi River Bridge Authority, Lexington Insurance Company and its Agents, Continental Casualty Insurance Company.

No. 88-CA-0024.

550 So.2d 257

Court of Appeal of Louisiana, Fourth Circuit.

Sept. 14, 1989.

Victor E. Stillwell, Jr., Bobby M. Harges, Deutsch, Kerrigan & Stiles, New Orleans, for defendants-appellees.

Stephen L. Huber, Metairie, for defendants-appellants.

Before WARD, WILLIAMS and ARMSTRONG, JJ.

ARMSTRONG, Judge.

Defendant/third-party plaintiff, Liberty Mutual Insurance Company (Liberty), appeals from a judgment sustaining an exception of no cause of action in favor of defendant/third-party defendant, Modjeski & Masters (M & M). We now reverse.

On the night of May 27, 1986, Yvonne S. McBride was driving in the left-hand lane of the Greater New Orleans Mississippi River Bridge, headed toward New Orleans. An unidentified vehicle headed in the same direction, traveling in the right hand lane, suddenly veered into Mrs. McBride's lane and struck her car. She was propelled across the center emergency lane of the bridge and struck an oncoming vehicle head on. Mrs. McBride died from the injuries sustained in the accident. The unidentified vehicle was never located.

Decedent's two daughters instituted this action against Liberty (decedent's uninsured motorist carrier), the State of Louisiana, Through the Department of Transportation and Development, the Mississippi River Bridge Authority, the insurers of these agencies, Modjeski & Masters (an engineering consultant partnership), and its insurer. Plaintiffs alleged that M & M was negligent in failing to recommend that a median barrier be installed on the bridge.

Liberty filed third-party demands against all other defendants, including M & M, seeking indemnity and contribution for any amounts paid to plaintiffs as a result of the fault of these third-party defendants. M & M filed an exception of no cause of action as to the third-party demand of Liberty which was sustained by the trial court. Liberty now appeals.

Liberty contends that the trial court erred in finding that it had no cause of action against M & M for contribution or indemnity. Liberty claims that it and M & M are solidarily bound with the uninsured hit-and-run motorist for the damages sustained by plaintiffs. Therefore, Liberty argues, as a solidary co-obligor, M & M is liable to it for any amounts it pays to plaintiffs as the result of M & M's fault. It is clear that if Liberty is correct, it has a cause of action against M & M.

M & M cites La.R.S. 22:1406(D)(1)(a) which mandates that liability insurers provide uninsured motorist coverage in their policies for "the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom ..." It also cites La.R.S. 22:1406(D)(4) which states:

"In the event of payment to any person under the coverage required by this Section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer."

M & M argues that the subrogation rights of UM insurers are limited by La.R.S. 22:1406(D)(1)(a) and 22:1406(D)(4) to only the amounts paid by them to insureds for damages incurred as the direct result of the delicts of uninsured motorists. It contends that Liberty has no rights of recovery from any tortfeasor except the uninsured motorist, and then only by way of the subrogation provided under La.R.S. 22:1406(D)(4). It dismisses the notion that Liberty is a solidary obligor with the uninsured motorist and the other joint or co-tortfeasors such as would allow it a right of contribution for amounts paid to plaintiffs. We disagree.

In Hoefly v. Government Employees Insurance Company, 418 So.2d 575 (La.1982), the Louisiana Supreme Court examined the issue of whether a UM insurer and an uninsured motorist tortfeasor were solidarily bound to repair the damage to the UM carrier's insured--the tort victim. The narrow issue was whether prescription was interrupted as to the UM insurer by the filing of suit against the uninsured motorist tortfeasor. The court answered both questions in the affirmative, holding that the UM insurer was solidarily bound with the tortfeasor because each was bound to do the same thing, repair the damage incurred by the victim through the fault of the uninsured motorist.

In Fertitta v. Allstate Insurance Company, 462 So.2d 159 (La.1985), the Supreme Court explicitly affirmed its holding in Hoefly, seemingly using more expansive language. The court stated:

"We reaffirm Hoefly. An obligor who, because of some provision of law, is liable to repair the damages caused by the tortfeasor is solidarily liable with the tortfeasor, despite the independent sources of liability and despite statutory and policy conditions limiting liability to some extent. Both are obliged to the same thing, because that which each is bound to do--to repair the tort damage--is essentially one and the same thing. This is the essential requirement for a determination of solidarity.... Because two debtors are solidarily bound, the creditor can demand performance of the entire obligation from either obligor as if he were the sole debtor." (emphasis ours)

Therefore, Liberty is solidarily liable with the uninsured and unidentified motorist for the full amount of the damages incurred by plaintiffs. But is the UM insurer also solidarily bound with the joint or co-tortfeasors of the uninsured motorist?

The holdings of the Supreme Court in Hoefly and Fertitta were based on repealed La.C.C. art. 2091 which provided, "[t]here is an obligation in solido on the part of the debtors, when they are all obliged to the same thing, so that each may be compelled for the whole, and when payment which is made by one of them, exonerates the other toward the creditor." The substance of repealed La.C.C. art 2091 is now contained in La.C.C. art. 1794. The Revision Comment notes that the new article restates the principle contained in the old, and does not change the law.

La.C.C. art. 2324, as in effect at the time of the accident in the instant case, provided that "[p]ersons whose concurring fault has caused injury, death or loss to another are ... answerable, in solido ..." These joint tortfeasors, being bound in solido, are each liable for the full amount of damages suffered by the tort victim. Here, if liability is established, M & M and the "phantom" motorist would be liable in solido for the plaintiffs' damages caused by their concurrent fault, even though their fault resulted from different acts or breaches of different obligations. Duplechain v. Clausing Machine Tools, 420 So.2d 720 (La.App. 4th Cir.1982); Cavalier v. City of New Orleans, 273 So.2d 303 (La.App. 4th Cir.1973).

Subject to policy limitations, under Hoefly, supra, and Fertitta, supra, and La.C.C art. 2324, as in effect at the time of the accident in the instant litigation, Liberty, the UM insurer, would be required to pay the full amount of plaintiffs' damages just as the "phantom" motorist could have been required to do had he been located and made a party to this action. Thus, the "phantom" motorist, M & M, and Liberty are each bound to do the same thing, recompense the plaintiffs' the full amount of damages caused by the concurrent fault of the two joint tortfeasors.

Louisiana state appellate courts in at least two circuits, including this one, have held that UM insurers are bound in solido with the uninsured motorist tortfeasor and a joint tortfeasor for the tort victim's damages. See Harris v. Guitterez, 469 So.2d 1135 (La.App. 4th Cir.1985) and Farnsworth v. Lumberman's Mutual Casualty Co., 442 So.2d 1340 (La.App. 3rd Cir.1983). Hoefly, supra, was cited as authority in both decisions. Even though in both of these cases the joint tortfeasor was also a motorist, the result should be the same where, as in the instant case, the joint tortfeasor is a non-motorist.

An en banc panel of this court reconsidered the principal enunciated in Harris v. Guitterez, supra, in light of the facts of this case. A majority of the panel found Harris still good law, and applicable in the instant case.

Considering the law and jurisprudence, and the facts as set forth in plaintiffs' petition, Liberty, M & M, and the uninsured motorist are bound in solido for the full amount of damages sustained by plaintiffs as the result of the concurrent fault of the two joint tortfeasors.

The legislative aim of the uninsured motorist statute is to promote full recovery for damages incurred by innocent automobile accident victims. Holding the UM insurer liable in solido with the tortfeasor uninsured motorist as well as any joint tortfeasors furthers this goal. The object of the legislation is to compensate the innocent victim. If the defendants are bound in solido the UM insurer will likely be more inclined to tender a settlement to its insured, knowing that it can seek contribution from the other solidary co-obligors proportionate to their share of fault. La.C.C. art. 1804 and Revision Comment (b). Though all solidary co-obligors are usually named as defendants, the victim-insured need only sue one of them if he so chooses. La.C.C. art. 1795. The burden will then be on that one defendant to bring in as third-party defendants any solidary co-oblibors. While this may have the incidental effect of providing the UM insurer and tortfeasors the right of...