Vicknair v. Hibernia Bldg. Corp., Nos. 85-C-0913

• Court: Supreme Court of Louisiana
• Writing for the Court: MARCUS; LEMMON; LEMMON
• Citation: 479 So.2d 904
• Parties: Beverly Vicknair, Wife of/and Floyd VICKNAIR, and Floyd Vicknair as Administrator of and for the Use and Benefit of the Minor, Eric Vicknair v. HIBERNIA BUILDING CORP. and United States Fidelity & Guaranty Co., et al. 479 So.2d 904
• Decision Date: 02 December 1985
• Docket Number: Nos. 85-C-0913,85-C-0917

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479 So.2d 904 Beverly Vicknair, Wife of/and Floyd VICKNAIR, and Floyd
Vicknair as Administrator of and for the Use and
Benefit of the Minor, Eric Vicknair
v.
HIBERNIA BUILDING CORP. and United States Fidelity &
Guaranty Co., et al. Nos. 85-C-0913, 85-C-0917. 479 So.2d 904 Supreme Court of Louisiana. Dec. 2, 1985.

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Robert Ford, Hammett, Leake & Hammett, New Orleans, for defendant-applicant in No. 85-C-0913.

Frank D'Amico, Vincent J. Glorioso, Jr., New Orleans, for plaintiff-respondent in No. 85-C-0913.

Frank D'Amico, Vincent J. Glorioso, Jr., New Orleans, Counsel for plaintiff-applicant;

Robert D. Ford, Hammett, Leake & Hammett, New Orleans, Counsel for defendant-respondent;

MARCUS, Justice.

On November 3, 1976, a fire alarm sounded in the Hibernia Bank Building, and an announcement was made instructing everyone in the building to exit using the stairs. The fire alarm was allegedly set off when employees of Broadmoor Corporation, an independent contractor doing renovation work in the building, caused an unmarked fire alarm wire to be broken. At that time, Beverly Vicknair was eight months pregnant. She was employed on the nineteenth floor, and forced to descend twenty-one flights of stairs (nineteen floors and two mezzanines). Later that day, Beverly noticed that she had begun spotting some blood. The spotting continued the following day and then stopped. On November 9, 1976, she gave birth to her son, Eric, who was not due until late December 1976. At birth, Eric was cyanotic and required resuscitation. He was diagnosed as having Hyaline Membrane Disease, a respiratory disorder caused by immaturity of the lungs which is common in premature infants. Throughout his childhood, Eric has had a high number of respiratory illnesses, including asthma and allergic airway disease.

Plaintiffs filed suit on October 25, 1977 against Hibernia Building Corporation. Later, on January 31, 1979, plaintiffs amended their petition to add Broadmoor as a defendant. After a jury trial, a verdict was returned finding Hibernia not to be negligent, but finding Broadmoor to be

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negligent and liable for the following damages: $5,980 to Floyd Vicknair for medical expenses incurred by his wife and son; $5,000 to Beverly Vicknair for her physical and mental pain and suffering; $50,000 to Floyd Vicknair as administrator of his minor son for the past, present and future pain and suffering of Eric. The trial judge entered a judgment in conformity with the verdict; Hibernia was dismissed from the suit.

Broadmoor appealed. Plaintiffs answered the appeal, but did not separately appeal that portion of the judgment dismissing Hibernia from the suit. Broadmoor also filed an exception of prescription in the appellate court pursuant to La.Code Civ.P. art. 2163. Broadmoor alleged that since Hibernia was found to be free of negligence, Hibernia and Broadmoor were not joint tortfeasors, and the filing of the suit against Hibernia did not interrupt prescription as to Broadmoor. Broadmoor was not joined as a defendant until more than one year after the incident took place.

On the basis of the exception of prescription, the court of appeal reversed the judgment of the trial court, finding that it could not decide the fault of Hibernia because that party was not before the court. It remanded the case for a trial of the prescription issue. ¹ Plaintiffs' application for rehearing was granted by the court of appeal. Meanwhile, plaintiffs and Broadmoor applied to this court for writs. We granted both applications, setting aside the rehearing granted by the court of appeal as not having been timely applied for, ² and vacating the judgment of the appellate court. We remanded the case to the court of appeal for decision. ³

On remand, the court of appeal found that the failure of the trial judge to provide instructions to the jury on alternative theories of Hibernia's liability, in addition to negligence, was reversible error. It remanded the case to the trial court for a new trial. ⁴ Plaintiffs and Broadmoor again applied to this court. We granted both applications to review the correctness of the court of appeal decision. ⁵

There are three issues presented by this litigation. First, we must consider the merits of the peremptory exception of prescription filed by Broadmoor. To decide this issue, we must determine whether the fault of Hibernia is before us, though Hibernia has a final, definitive judgment in its favor. If so, then it must be decided whether Hibernia was, in fact, at fault. If the fault of Hibernia is found to be before us, and if Hibernia is found to be at fault, then the timely filed suit against Hibernia would have interrupted prescription as to Broadmoor, and the exception of prescription would be without merit. If there is not merit to the exception, then the fault of Broadmoor would have to be reviewed. Finally, if Broadmoor is found to be liable, it must be determined whether the amount of damages awarded against Broadmoor was proper.

Exception of Prescription

Plaintiffs did not amend their petition to make Broadmoor a defendant until after the one-year prescriptive period had run. La.Civ.Code arts. 3536, 3537 (current version at La.Civ.Code art. 3492). Hibernia was found by the jury not to be at fault; plaintiffs did not appeal that portion of the judgment. Plaintiffs only answered the appeal taken by Broadmoor. Therefore, the judgment in favor of Hibernia and against plaintiffs is final and definitive. La.Code Civ.P. arts. 1841, 1842. Under La.Code Civ.P. art. 2133, an appellee, by answering an appeal without filing an appeal on his own behalf, may seek relief from any portion of the judgment rendered against him in favor of appellant. The article does not, however, give an answer the effect of

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an appeal with respect to any portion of the judgment rendered against appellee in favor of a party not an appellant. Shelton v. Aetna Casualty & Surety Co., 334 So.2d 406 (La.1976). In contrast to Shelton, plaintiffs by their answer to Broadmoor's appeal do not seek to alter any portion of the judgment rendered against them in favor of Hibernia (a party who is not an appellant). Rather, they seek to relitigate the fault of Hibernia to determine whether Broadmoor is liable. Therefore, art. 2133, as interpreted in Shelton, does not bar review of Hibernia's fault.

Broadmoor's argument that the issue of Hibernia's fault cannot be relitigated in the suit between Broadmoor and plaintiffs is truly an argument that some form of collateral estoppel should apply. Collateral estoppel is a doctrine of issue preclusion alien to Louisiana law. Developed in the common law, the device precludes the relitigation of issues actually decided in a prior suit between the parties on a different cause of action. Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978). There are different theories on whether "mutuality" or identity of the parties is required. Welch, supra. However, collateral estoppel or issue preclusion is not a valid defense in Louisiana. Safeco Insur. Co. of America v. Palermo, 436 So.2d 536 (La.1983); Welch, supra.

Furthermore, res judicata does not apply in the instant case. In Louisiana, relitigation of the object of a judgment is barred when there is: (1) identity of the thing demanded; (2) the same cause of action; and (3) the same parties appearing in the same quality. La.Civ.Code art. 2286 (current version at La.R.S. 13:4231); Safeco Insur. Co. of America, supra; Dornak v. Lafayette General Hospital, 399 So.2d 168 (La.1981)....