Safeco Ins. Co. of America v. Palermo

• Decision Date: 16 November 1982
• Docket Number: No. 82,82
• Citation: 422 So.2d 1375
• Parties: SAFECO INSURANCE COMPANY OF AMERICA v. Lesley PALERMO. CA 0049.
• Court: Court of Appeal of Louisiana — District of US

Page 1375

422 So.2d 1375

SAFECO INSURANCE COMPANY OF AMERICA v. Lesley PALERMO.

No. 82 CA 0049.

Court of Appeal of Louisiana,

First Circuit.

Nov. 16, 1982.

Carolyn Pratt Perry, Franklin, Moore & Walsh, Baton Rouge, for plaintiff-appellant.

Robert J. Vandaworker, Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendant-appellee.

Before PONDER, SAVOIE and ELLIS, JJ.

ELLIS, Judge:

This suit arises out of an automobile accident, between an automobile owned by Victor Glaviano and operated by Nick Glaviano, and an automobile owned by Peter Palermo and operated by Lesley Palermo. The accident happened when the Glaviano vehicle stalled on State Highway No. 1, and was subsequently struck from the rear by the Palermo vehicle.

After the accident, Southern Farm Bureau Casualty Insurance Company, Palermo's collision insurer, paid $3,662.01 in collision damages and $660.28 in medical payments under its policy. Thereafter, Southern Farm sued Victor and Nick Glaviano and Safeco Insurance of America, their liability insurer, as subrogee of its insured, to recover the amounts paid under the Palermo policy. Neither Peter nor Lesley Palermo were parties to that suit. After trial on the merits, judgment was rendered in favor of Southern Farm and against Victor and Nick Glaviano and Safeco for $4,322.29. Safeco paid the judgment as liability insurer of the Glavianos.

Thereafter, this suit was filed against Lesley Palermo, alleging that his negligence in failing to see the Glaviano vehicle was a contributing cause of the accident and that he was therefore liable for contribution of half of the amount paid to satisfy the judgment, under Article 2103 of the Civil Code.

To the petition, Mr. Palermo filed peremptory exceptions of no right of action, no cause of action, res judicata and law of the case, alleging all of the foregoing circumstances. After a hearing, the exceptions were maintained by the trial judge, and the suit dismissed. From the judgment of dismissal, Safeco has appealed.

The allegations of the petition, which must be accepted as true for the exception of no cause of action, clearly set forth a cause of action in contribution under Article 2103 of the Civil Code against Lesley Palermo. No question is raised as to the capacity of plaintiff or his interest in the matter. The peremptory exceptions of no cause of action and no right of action are without merit.

The peremptory exception of res judicata is based on the judgment rendered in the first case. Under Article 2286 of the Civil Code, three elements must appear if the exception of res judicata is to be maintained: identity of parties, identity of cause and identity of the thing demanded. Mitchell v. Bertolla, 340 So.2d 287 (La.1976). Lesley Palermo was not a party...