Trahan v. Liberty Mut. Ins. Co.

• Decision Date: 16 October 1974
• Docket Number: No. 4715,4715
• Citation: 303 So.2d 606
• Parties: Jeanette Jean TRAHAN et al., Plaintiffs-Appellants, v. LIBERTY MUTUAL INSURANCE CO. and Insurance Co. of North America, Defendants- Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 606

303 So.2d 606

Jeanette Jean TRAHAN et al., Plaintiffs-Appellants, v. LIBERTY MUTUAL INSURANCE CO. and Insurance Co. of North America, Defendants- Appellees.

No. 4715.

Court of Appeal of Louisiana, Third Circuit.

Oct. 16, 1974.

Rehearing Denied Nov. 20, 1974.

Writ Granted Jan. 10, 1975.

Broussard, Broussard & Moresi by Paul G. Moresi, Jr., Abbeville, for plaintiffs-appellants.

Davidson, Meaux, Onebane & Donohoe by John G. Torian, II, Lafayette, for defendants-appellees.

Scofield, Bergstedt & Gerard by Richard E. Gerard, Jr., Lake Charles, for defendant-appellee.

Before FRUGE , MILLER and WATSON, JJ.

WATSON, Judge.

The captioned case is consolidated in this court with docket no. 4783, entitled Olivia Nunez, Individually, and as Tutrix of the Minors, Richard John Suire and Bryan Keith Suire v. Liberty Mutual Insurance Co. et al., La.App., 303 So.2d 616, both cases arising from the same accident and involving the same defendants.

Jeanette Jean Trahan sues on behalf of herself and her minor children for damages resulting from the death of their husband and father, John Olson Hollier. She alleges that Liberty Mutual Insurance Company ('Liberty Mutual') and Insurance Company of North America ('INA') are liable, jointly and in solido, as liability insurers for the death of Hollier, resulting from the negligence of Jozef Chrzanowski.

In the consolidated case, Olivia Nunez sues on behalf of herself and her minor children for damages resulting from the death of their husband and father, Obra J. Suire. She alleges that Liberty Mutual and INA are liable, jointly and in solido, as liability insurers for the death of Suire, resulting from the negligence of Jozef Chrzanowski and John O. Hollier.

Hollier and Suire died in an accident on February 19, 1970, in a salt mine at Jefferson Island, Louisiana, owned and operated by Diamond Crystal Salt Company. Also killed were Chrzanowski, who was general mine foreman, and one Lennis Landry.

Timely suits were filed in connection with the deaths of which six executive officers of Diamond Crystal Salt Company were made defendants along with their liability insurers, Liberty Mutual and INA. The original suits attributed the death of Hollier, Suire, Chrzanowski and Landry solely to the negligence of the six executive officers; no allegation was made as to negligence by Hollier or Chrzanowski. However, the defendants alleged contributory negligence on the part of Chrzanowski and Hollier. The original suits were consolidated and tried to a jury which rendered verdicts in favor of all defendants against all plaintiffs. The jury verdicts were affirmed by this court in Trahan v. Liberty Mutual Insurance Company, 273 So.2d 331 (La.App. 3 Cir. 1973); writ denied, 275 So.2d 791. The applications for writs were denied by the Louisiana Supreme Court April 12, 1973.

Suit was then filed in the instant case on March 1, 1974, in connection with the death of John Olson Hollier, asserting a claim against Liberty Mutual and INA on the basis of the negligence of Chrzanowski. Suit was filed in docket no. 4783, in connection with the death of Obra J. Suire, on December 6, 1973, asserting a claim against Liberty Mutual and INA on the basis of the negligence of Chrzanowski and Hollier. Defendants filed exceptions, urging the prescription of one year. LSA-C.C. art. 3536.

On these pleadings, the trial court rendered judgment in both cases sustaining defendants' peremptory exceptions of prescription.

Plaintiffs have appealed, contending that the first suits interrupted prescription as to defendants and that the trial court erred in sustaining defendants' peremptory exceptions. Defendants also filed exceptions of res judicata in the trial court, which were not considered due to the sustaining of the exceptions of prescription. Peremptory exceptions of res judicata on behalf of both defendants have also been filed in this court. Plaintiffs contend that the first suits are not res judicata because defendants are being sued in the instant suits in a different capacity: on the death of Hollier, as the insurers of Jozef Chrzanowski; and on the death of Suire as the insurers of Jozef Chrzanowski and John Hollier . Jozef Chrzanowski was general mine foreman and John Hollier was shift foreman at the time of the accident.

ISSUES

The issues to be considered are: (1) whether the suits timely filed against the two insurance companies as liability insurers of the six executive officers interrupted prescription entitling plaintiffs to now sue the same insurance companies as liability insurers of Chrzanowski and Hollier; and (2) whether the adverse decisions in the original suits are res judicata to plaintiffs' present claims.

PRESCRIPTION

The statute which is applicable to the prescription issue is LSA-R . S. 9:5801 which provides:

All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants, including minors or interdicts, by the commencement of a civil action in a court of competent jurisdiction and in the proper venue. When the pleading presenting the judicial demand is filed in an incompetent court, or in an improper venue, prescription is interrupted as to the defendant served by the service of process. As amended Acts 1960, No. 31, § 1.

Also to be considered is LSA-Civil Code Article 2097, which reads as follows:

Art. 2097. A suit brought against one of the debtors In solido interrupts prescription with regard to all.

For interpretation and application of these statutory provisions, plaintiffs rely principally on the cases of Hidalgo v. Dupuy, 122 So .2d 639 (La.App. 1 Cir. 1960); Pearson v. Hartford Accident & Indemnity Company, 281 So.2d 724 (La., 1973), and Simmons v. Travelers Insurance Company, 295 So.2d 550 (La.App. 3 Cir. 1974); writ refused September 13, 1974, contending that these cases represent authority for overruling the plea of prescription.

Defendants attempt to distinguish these cases on the ground that all involve only a situation where a specific insured was sued timely and his insurer subsequently brought in or the reverse situation where an insurer was cited as the insurer of a specific named individual and subsequently that individual was brought in. We will consider these cases in more detail below.

Hidalgo dealt with a situation where filing of suit in federal court interrupted prescription to make a second suit in state court timely. Counsel for defendants attempts to distinguish Hidalgo on the basis that the first suit in Hidalgo was dismissed on the ground that the action could not be maintained in the federal court and the first suit in the instant case was dismissed after full trial on the merits. However, it was the filing of the first suit in Hidalgo that interrupted prescription.

Hidalgo stands for the proposition that filing suit against a liability insurer in a court of competent jurisdiction interrupts prescription against the insured. The plaintiff, Hidalgo had sued the automobile liability insurer in federal court but his suit was dismissed for reasons not relevant here. His suit in state court against the insured, Dupuy, was filed over three years after the accident but within one year following dismissal in federal court. The Court of Appeal, through (then) Judge Tate, held that prescription had been interrupted.

The rule of Hidalgo is very persuasive when applied to the instant appeal, where the first suits were filed against the insurers claiming damages resulting from the same accident involved in the subsequent suits against the same insurers. If suit against the insurer interrupts prescription as to the insured, then it follows that suit against the insurer interrupts prescription against the insurer itself, unless there is some other valid distinction.

However, defendants contend that although the instant appeal is based on the same accident, it involves claims based on the negligence of employees not alleged to be negligent in the original suits, and therefore, prescription runs. This contention is counter to the decision in Simmons, where this court approved the addition of an additional executive officer as a party defendant on a negligence theory after the prescriptive period.

Defendants' contention is that Liberty Mutual and INA, as insurers of Chrzanowski and Hollier, are being sued in the second suits in a different capacity or as a different legal entity from Liberty Mutual and INA, as insurers of the six executives in the first series of suits. This distinction has been rejected in Andrepont v. Ochsner, 84 So.2d 63 (La.App.Orl.1955), where the court cited prior jurisprudence, saying:

'Thus it appears that all of the cases seem to be based on the theory that the knowledge of the demand, its origin, and basis, are imparted to the defendant even though the original suit was brought against the wrong defendant or against the defendant in an improper capacity, and even when brought by an improper plaintiff. So long as the proper person has been apprised of the demand in any legal capacity, prescription is interrupted.' 84 So.2d 68.

The view expressed in Andrepont was applied to a situation, closely parallel to the instant appeal, where a petition was amended after the prescriptive period had run to allege that an insurer, Travelers Insurance Company, was responsible for the negligence of 'Ethyl employees' in addition to the original allegation that the insurer was responsible for the negligence of 'ethyl Corporation.' Travelers Insurance Company v. Brown, 338 F.2d 229 (5 Cir. 1964). Ethyl Corporation and Travelers, as its insurer, were dismissed from the suit on a summary judgment, but Travelers was held in as insurer of the employees. Travelers' plea of prescription as to the claims against it in the capacity of the employees' insurer was rejected, with the observation that:

'There is no basis for treating Travelers as the insurer of one party as a different legal entity from Travelers as...