Trahan v. Liberty Mut. Ins. Co.

• Decision Date: 29 May 1975
• Docket Number: No. 55683,55683
• Citation: 314 So.2d 350
• Parties: Jeanette Jean TRAHAN et al. v. LIBERTY MUTUAL INSURANCE COMPANY and the Insurance Company of North America.
• Court: Louisiana Supreme Court

Page 350

314 So.2d 350

Jeanette Jean TRAHAN et al. v. LIBERTY MUTUAL INSURANCE COMPANY and the Insurance Company of North America.

No. 55683.

Supreme Court of Louisiana.

May 29, 1975.

Rehearing Denied June 20, 1975.

Richard E. Gerard, Scofield, Bergstedt & Gerard, Lake Charles, John G. Torian, II, Davidson, Meaux, Onebane, Donohoe, Bernard, Torian & Diaz, Lafayette, for defendants-applicants.

Thompson & Sellers, Roger C. Sellers and Durwood W. Conque, Paul G. Moresi, Jr., Broussard, Broussard & Moresi, Abbeville, for plaintiffs-respondents.

CALOGERO, Justice.

On February 19, 1970, four men, Josef Chrzanowski, John Hollier, Obra Suire and Lennis Landry, were killed when a slab of salt fell upon them in a salt mine owned and operated by Diamond Crystal Salt Company on Jefferson Island, Louisiana. Widows of each decedent filed suit for themselves and on behalf of their minor children against six named executive officers of Diamond Crystal ¹ and their liability insurers, Liberty Mutual Insurance Company and The Insurance Company of North America. These four suits were consolidated for trial and appeal. A jury verdict was returned absolving all defendants of liability. That verdict was affirmed by the Court of Appeal and writs were denied by this Court. Trahan v. Liberty Mutual Insurance Company, 273 So.2d 331 (La.App.3rd Cir.), cert. denied, La., 275 So.2d 791 (1973).

Within a year of the final judgment in the initial suits, second suits were filed by two of the original plaintiffs on behalf of themselves and their minor children against the same insurers, Liberty Mutual and I.N.A. Jeanette Jean Trahan, widow of John Hollier, alleged that the fatal accident was the result of negligence of an insured, Josef Chrzanowski. Oliva Nunez, widow of Obra Suire, alleged that the accident was the result of the negligence of two insureds, Chrzanowski and John Hollier.

Defendants filed peremptory exceptions of prescription and res judicata. The District Court sustained the prescription exception. As a result it did not consider the res judicata exception. The Court of Appeal reversed, finding no merit in either exception and ordered the case remanded for trial on the merits. Trahan v. Liberty Mutual Insurance Company, 303 So.2d 606 (La.App.3rd Cir. 1974); Nunez v. Liberty Mutual Insurance Company, 303 So.2d 616 (La.App.3rd Cir. 1974).

We granted writs upon application of the defendant insurers. Trahan v. Liberty Mutual Insurance Company, 305 So.2d 538 (La.1975); Nunez v. Liberty Mutual Insurance Company, 305 So.2d 538 (La.1975).

These two suits were consolidated in the District Court, Court of Appeal and in this Court. We are this day rendering a separate opinion in the second suit. See Nunez v. Liberty Mutual Insurance Company, La., 314 So.2d 356.

We find merit in the exception of prescription and accordingly reverse the judgment of the Court of Appeal.

Tort actions prescribe in one year. La.C.C. art. 3536. Thus, the instant suit filed March 1, 1974 (Mrs. Suire's companion suit was filed December 6, 1973), approximately four years after the accident, is not timely, absent a suspension or interruption of prescription.

The question posed is whether the first suit, insofar as it was against the defendant insurance companies as liability insurers of six named executive officers, interrupted prescription so that plaintiff Jeanette Jean Trahan Hollier may now sue the same defendant insurers, this time as liability insurers of Chrzanowski. ²

Plaintiff argues that prescription on the instant suit was interrupted by the first suit against the defendant insurers and the six named executive officers, relying upon R.S. 9:5801 and La.C.C. art. 2097:

'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.' R.S. 9:5801, as amended by Act 31 of 1960.

'A suit brought against one of the debtors In solido interrupts prescription with regard to all.' La.C.C. art. 2097.

Turning first to the interruption of prescription founded upon R.S. 9:5801 ('All prescriptions affecting The cause of action therein sued upon are interrupted . . .') plaintiff asserts that the cause of action of both suits is identical. Thus the first suit on that cause of action served to interrupt prescription on the instant suit. Defining the cause of action as 'the situation or set of facts which entitles a party to sustain an action,' Hope v. Madison, 192 La. 593, 606, 188 So. 711, 715 (1939), plaintiff argues that 'both . . . (claims) are asserted as wrongful death actions resulting from the accident in the salt mine caused by the negligence of relators' insureds: only the defendants named are different.' The argument is also made that 'the sole jurisprudential limitation on the application of LSA-R.S. 9:5801 is that the defendant is timely put on notice that damages are being claimed as a result of its negligence, Mid-States Insurance Company v. Fireman's Fund Insurance Company, 240 So.2d 908 (La.App.4th Cir. 1970). This notice requirement, it is argued, was fulfilled by the first suit. ³ Further plaintiffs argue that 'when read fully and in the proper perspective, R.S. 9:5801 requires only that the prescription under scrutiny must Affect in some concrete manner the cause of action sued upon . . . (T)he inquiry must be made as to whether the prescription under discussion can be said to Affect in a concrete way the cause of action stated in the original suits. Certainly, it cannot be denied that the claims now before the court are related to the original claims in this respect at the very least.' Thus plaintiff's interpretation of the first clause of R.S. 9:5801 would accent the word 'affect' rather than the words 'the cause of action therein sued upon.'

Defendants argue that the causes of action of the two suits are different and thus R.S. 9:5801 is not applicable. They further deny that the first suit put them on notice that damages were being claimed based upon the negligence of Chrzanowski (Chrzanowski and Hollier as relates to Mrs. Suire's claim).

The first question to be answered is whether in the first suit plaintiff sued on the same cause of action asserted in the second. If so, then under R.S. 9:5801 prescription would have been interrupted and the second suit timely.

To answer this question, we must determine precisely the meaning of 'a cause of action.' In Hope v. Madison, 192 La. 593, 606, 188 So. 711, 715 (1939) the following definition was given:

'A cause of action is An act on the part of a defendant which gives rise to a plaintiff's cause complaint; 'the existence of those facts which give a party a right to judicial interference in his behalf'; 'the situation or state of facts which entitles a party to sustain an action'.

"When used with reference to the pleadings by which the cause of action is alleged, the phrase signifies the facts upon which the plaintiff's right to sue is based, and upon which The defendant's duty has arisen, coupled with the facts which constitute the latter's wrong.' Quotations from 2 Words & Phrases, First Series, Cause of Action, p. 1017.' (Emphasis provided)

In an excellent Comment, 'Res Judicata--Matters Which Might Have Been Pleaded,' 2 La.L.Rev. 347, 355 n. 46 (1940) the author has collected various definitions of Cause by French scholars in considering whether a prior judgment, Between the same parties, in the same capacities and for the same object, is res judicata. ⁴

Also pertinent to this discussion is the distinction noted in National Surety Corporation v. Standard Accident Insurance Company, 247 La. 905, 914, 175 So.2d 263, 266 (1965) that the demand of a suit is not synonymous with the cause of action therein. The demand is the object of the suit. The cause of action is the state of facts which gives a party a right to judicially assert an action against the defendant. La.C.C.P. art. 891 further sets forth this distinction in detailing the required averments of the petition. 'It (the petition) . . . shall contain a short, clear, and concise statement of the object of the demand and of the material facts upon which the cause of action is based . . ..'

There is a similarity between the two suits in that the object or demand of both suits is the same, damages for the wrongful death of plaintiff's husband.

The causes of action, however, are different, a cause of action being An act by a defendant which gives a plaintiff a a right to invoke judicial interference on his behalf. A cause of action in tort has no identity independent from the defendant upon whose fault it is based. ⁵ In the first suit the cause of action was based upon, and it encompassed, only the negligence of the six named executive officers. In the second suit, the cause of action is based upon the negligence of Chrzanowski.

Asserted in that first suit was a right of action (in connection with the wrongful death), not a cause of action, against Liberty Mutual and INA, the insurers of the six. ⁶

The first suit gave defendants no notice that plaintiff was claiming damages as a result of the negligence of its insured Chrzanowski. That suit was based solely on the alleged negligence of the six named executive officers. Mid-States Insurance Company v. Fireman's Fund Insurance Company, Supra, is inapplicable.

The following cases have been cited by the Court of Appeal and relied upon by plaintiff: Hidalgo v. Dupuy, 122 So.2d 639 (La.App.1st Cir. 1960); Hayes v. Muller, 243 So.2d 830 (La.App.3rd Cir. 1971); Pearson v. Hartford Accident and Indemnity Company, 281 So.2d 724 (La.1973); Andrepont v. Ochsner, 84 So.2d 63 (La.App.Orl.1955); and Simmons v. Travelers Insurance...