Wall v. American Emp. Ins. Co.

• Decision Date: 23 June 1980
• Docket Number: No. 66301,66301
• Citation: 386 So.2d 79
• Parties: James L. WALL et al. v. AMERICAN EMPLOYERS INSURANCE COMPANY et al. Jeff L. BUTLER et al. v. AMERICAN EMPLOYERS INSURANCE COMPANY et al.
• Court: Louisiana Supreme Court

Page 79

386 So.2d 79

James L. WALL et al. v. AMERICAN EMPLOYERS INSURANCE COMPANY et al.

Jeff L. BUTLER et al. v. AMERICAN EMPLOYERS INSURANCE COMPANY et al.

No. 66301.

Supreme Court of Louisiana.

June 23, 1980.

Jenifer Ward Clason, Shaw & Shaw, Homer, for plaintiffs-applicants.

William J. Doran, Jr., William T. Kivett, Doran & Kivett, Baton Rouge, for defendants-respondents.

CALOGERO, Justice.^*

We granted writs in these consolidated cases to resolve the following issues:

1) Should plaintiffs' awards of damages against the Claiborne Parish Police Jury have been reduced by the Court of Appeal by two-thirds because of plaintiffs' pre-trial settlements with and restrictive releases of two co-defendants and their insurers?

2) Should the damages awarded by the Court of Appeal be increased?

These consolidated actions for damages for wrongful death and for personal injury to guest passengers arose out of a two-car collision which occurred in July of 1966 in Claiborne Parish at the intersection of two rural blacktop roads maintained by the parish police jury as part of the parish road system. Brenda Prothro, the seventeen year old driver of one vehicle, and her three passengers, were travelling north on the Harris-Beck Road; Mrs. Eunice Vize, with six passengers, was driving east on the old Minden-Arcadia Road.

The intersection at which the collision occurred was described by the Court of Appeal as follows:

"Several stop signs which once had been maintained facing north-south traffic on the Harris-Beck Road were knocked down or removed by persons unknown at least a month before the accident. Grass and weeds had grown on the road shoulders at the intersection to the extent that drivers' view of the intersection a safe distance away was obstructed. One stop sign remained at the intersection but it faced southbound traffic on the Harris-Beck Road (Brenda Prothro was northbound) and was located not on the right shoulder of that road, but on the left shoulder. The hazardous nature of the generally uncontrolled, unmarked and obstructed intersection was compounded by a hill which also obstructed the vision of a northbound driver and by a curve which obstructed the view of the eastbound driver. The posted speed limit on each road was 60 M.P.H. Each automobile was travelling 50-55 M.P.H. No signs, however, were posted to warn traffic that an intersection was ahead." 377 So.2d 369, 371 (La.App.2nd Cir. 1979).

Reconstruction of the accident through expert testimony indicated that neither driver was aware of the other vehicle until the collision was imminent. The Vize vehicle which was travelling at approximately fifty miles an hour left skid marks of twenty-two feet and nine inches while the Prothro vehicle travelling at about fifty-five miles an hour left only two feet of skid marks. Testimony indicated that neither driver began braking until well after the point beyond which the collision was no longer avoidable.

As a result of the collision, Brenda Prothro and one of her passengers, Dianne Wall, were killed.¹ Additionally, all of the six passengers in the Vize vehicle Mrs. Blanche Butler, her three minor children, and a minor niece and nephew were injured. An action for the wrongful death of Dianne Wall was filed by her parents, Mr. and Mrs. James L. Wall, plaintiffs herein. A separate action was filed for the personal injuries sustained by the passengers in the Vize vehicle. Named as defendants in each action were Mr. and Mrs. E. L. Prothro, Jr., their insurer American Employers Insurance Company, Mr. and Mrs. H. C. Vize, their insurer State Farm, the Claiborne Parish Police Jury, and the State Department of Highways. The Department of Highways was dismissed from the litigation on exceptions upon a showing that the two roads in question were parish rather than state maintained roads.

Before trial both sets of plaintiffs settled with and gave restrictive releases to Mr. and Mrs. H. C. Vize, the Vize insurer State Farm, Mr. and Mrs. E. L. Prothro and the Prothro insurer American Employers. After much procedural litigation not relevant to the issues at hand and almost twelve years after the accident, the consolidated cases went to trial against the Claiborne Parish Police Jury alone.

At the conclusion of trial the district court found that plaintiffs in their pleadings had judicially confessed the negligence of the two drivers with whom they had settled before trial and that plaintiffs were bound by the allegations in their pleadings. The court further held, however, that the negligence of the two drivers had been proved by a preponderance of the evidence and that any negligence of the police jury in not signing the intersection properly was not a proximate cause of the accident. The trial court accordingly dismissed with prejudice the actions against the police jury.

On appeal the Second Circuit reversed the trial court's finding that the failure of the police jury to sign the intersection properly was not a proximate cause of the accident. That court found that the police jury had a duty to maintain the road and the traffic signs in a reasonably safe condition and to warn motorists of this unmarked intersection. The Court of Appeal further found that the Claiborne Parish Police Jury either knew or should have known that the stop signs at the intersection were down for more than a month before the accident. As a consequence that court found that the police jury's negligence was a proximate cause of the accident and constituted legal fault.

After finding that the police jury was liable for plaintiffs' damages, the Court of Appeal reduced the judgment by two-thirds for the reason that plaintiffs' allegations that the police jury's two co-defendants with whom plaintiffs had settled before trial had been jointly and concurrently negligent were binding. The court held that plaintiffs could not now assert that the two co-defendants with whom they had settled were not joint tortfeasors and thereby defeat the police jury's right to claim a proportionate reduction the in judgment.

The finding by the Court of Appeal that the police jury's negligence was a proximate cause of the accident and constituted legal fault is well-founded and is no longer at issue in this litigation.² What prompted our granting writs in this case was the method by which the Court of Appeal determined that the drivers of the two vehicles were joint tortfeasors.

In reducing plaintiffs' judgments the Court of Appeal did not on the basis of the record find that the drivers of the two vehicles were negligent. Rather it determined as a procedural matter that plaintiffs were bound by their original and unamended pleadings filed at the commencement of the litigation, before settlement with and release of the two drivers and their insurers. In those pleadings plaintiffs had alleged that Brenda Prothro and Eunice Vize were jointly and concurrently negligent and had prayed that they be held liable in solido with the other defendants. Relying on Danks v. Maher, 177 So.2d 412 (La.App.4th Cir. 1965), the court found that the allegations of negligence of the two drivers in the unamended pleadings bound plaintiffs, and that consequently the two co-defendants were joint tortfeasors entitling the police jury to a reduction of the judgment under Harvey v. Travelers Insurance Company, 163 So.2d 915 (La.App.3rd Cir. 1964).

Harvey v. Travelers established the rule that when a plaintiff settles with and releases a joint tortfeasor and thereby deprives the remaining tortfeasor of his right to contribution against the one who has been released, the plaintiff can recover from the remaining tortfeasor only one-half of the damages which he has sustained. In that case plaintiffs filed suit against two drivers involved in an accident. After plaintiff settled with, released and dismissed from the suit one driver, the remaining defendant filed a third party action demanding that the released co-defendant be brought back into the action so that its solidary liability might be determined. He further demanded that if he were found liable, the judgment against him be either reduced by half or that he be given judgment for one-half against the released co-defendant. Upon motion for summary judgment on the third party demand, the trial court dismissed the third party action against the released defendant. The Court of Appeal affirmed, concluding however that the effect of the pre-trial settlement with the released defendant would be to reduce the plaintiffs' recovery if it were determined at trial that the released driver were a joint tortfeasor:

"We conclude, therefore, that where the claimant in a tort action settles with and releases one of two joint tort-feasors, reserving all of his rights against the other, the remaining tort-feasor is thereby deprived of his right to enforce contribution against the one who has been released. And, since the claimant by his own act has deprived the unreleased tort-feasor of this right to enforce contribution, he can recover from the latter only one-half of the damages which he sustained." 163 So.2d at 921.

The court in Harvey, however, stated that it was only if the released co-defendant were determined to be a joint tortfeasor at trial that the reduction in damages would apply:

". . . If it should be determined on the trial of the merits of this case that the (released co-defendant) and the (non-released co-defendant) were both negligent, and thus that they were joint tort-feasors, then in view of the settlement with and release of (one co-defendant) plaintiffs must be decreed to have reduced their claim by one-half, and they would be permitted to recover only one-half of the total amount of their damages from the remaining tort-feasor, . . . (and its insurer). It it should be determined on a trial of the merits that the (released co-defendant) was not negligent and thus that he was not a joint tort-feasor, then the...