Wells v. Hartford Acc. & Indem. Co.

• Court: Court of Appeal of Louisiana
• Writing for the Court: GUIDRY
• Citation: Wells v. Hartford Acc. & Indem. Co., 437 So.2d 295 (La. App. 1983)
• Decision Date: 10 August 1983
• Docket Number: No. 83-184,83-184
• Parties: William E. WELLS, et ux., Plaintiffs-Appellees-Appellants, v. HARTFORD ACCIDENT & INDEMNITY CO., et al., Defendants-Appellants-Appellees, State of Louisiana, Through the Department of Transportation and Development, Defendant-Appellee-Appellant.

Page 295

437 So.2d 295

William E. WELLS, et ux., Plaintiffs-Appellees-Appellants, v. HARTFORD ACCIDENT & INDEMNITY CO., et al Defendants-Appellants-Appellees State of Louisiana, Through the Department of Transportation and Development, Defendant-Appellee-Appellant.

No. 83-184.

Court of Appeal of Louisiana Third Circuit.

Aug. 10, 1983.

Rehearing Denied Sept. 26, 1983.

Writ Denied Dec. 9, 1983.

Gist, Methvin, Hughes & Munsterman, David A. Hughes, Alexandria, for defendants-appellants-appellees.

Fuhrer, Flournoy & Hunter, Leonard Fuhrer, Alexandria, for plaintiffs-appellees-appellants.

John C. Young, Baton Rouge, for defendant-appellee-appellant.

Before GUIDRY, FORET and PICKETT ^*, JJ.

GUIDRY, Judge.

This is a joint action by petitioners, William E. Wells and Barbara Wells, seeking recovery of damages they sustained in an automobile collision. Made defendants in this suit are Rapides Parish Police Jury (hereafter the Parish); its liability insurer, Hartford Accident & Indemnity Co. (hereafter Hartford); and the State of Louisiana, through the Department of Transportation and Development (hereafter the State).

Immediately prior to the filing of this suit, Mr. and Mrs. Wells settled their claims and granted a release to Mrs. Givonna Todd, the driver of the other automobile involved in the collision; her husband, Larry G. Todd; and their insurer, Dairyland Insurance Company (hereafter Dairyland). By way of amended answers, the defendants pleaded the above mentioned receipt and release from the Wells to the Todds and their insurer as a bar to plaintiffs' suit. The Parish also filed an exception of res judicata based on the same ground which was overruled. The plaintiffs subsequently filed a motion for summary judgment on the issue of whether defendants could avail themselves of the receipt and release under the circumstances. ¹ After trial on the merits, the trial judge found that: (1) the Parish, the State and Givonna Todd were each guilty of negligence which was a proximate cause of the accident; (2) each of the three defendants was at fault to the extent of thirty-three and one-third (33 1/3%) percent; and, (3) although the defendants and Givonna Todd were solidarily liable to the Wells, the receipt and release granted by the Wells to the Todds did not operate to discharge the defendants from their liability to the Wells. Judgment was rendered in favor of Mrs. Wells and against defendants in solido in the principal amount of two-thirds ( 2/3) of $136,715.74 or the sum of $91,143.83 and in favor of Mr. Wells and against the defendants in solido in the principal amount of two-thirds ( 2/3) of $235,827.76 or the sum of $197,231.97. From this judgment, the Parish and its insurer appeal suspensively and the State appeals devolutively presenting the following issues:

(1) Whether the trial judge erred in concluding that the defendants were not released by the plaintiffs' release of the Todds and Dairyland.

(2) Whether the trial judge erred in finding the Parish and/or the State at fault.

The plaintiffs have also appealed presenting additional issues as follows:

(3) Whether the trial judge erred in finding Mrs. Todd at fault.

(4) Whether the trial judge erred in failing to award lost earnings, past and future to Mrs. Wells.

(5) Whether the trial judge erred in failing to award future medical expenses to Mr. Wells.

FACTS

Five miles north of Pineville, Hooper Road, a road maintained by the Rapides Parish Police Jury, forms a T-intersection, from the East, with Louisiana Highway 3225 which was formerly U.S. Highway # 71. This T-intersection is controlled by a "STOP" sign posted on Hooper Road directing traffic on Hooper Road to stop and yield the right of way to traffic on Louisiana Highway # 3225.

On December 18, 1981, at approximately 3:50 p.m., William and Barbara Wells were proceeding in a northerly direction on Louisiana Highway # 3225 approaching its intersection with Hooper Road. At the same time Givonna Todd was proceeding in a westerly direction on Hooper Road approaching its intersection with Louisiana Highway # 3225. As the two vehicles proceeded in this manner, Givonna Todd, upon first seeing the stop sign, instead of braking, elected to run the stop sign. She thus proceeded into the intersection and collided with the Wells' vehicle.

Hooper Road is a winding blacktop road with many curves. It becomes straight a short distance prior to the T-intersection allowing a vehicle to pick up speed. At the time of the accident, only a stop sign warned of this intersection and this sign was defaced and obscured by tree limbs. The trial court concluded from the evidence that the Parish and the State were guilty of negligence in failing to adequately warn of this dangerous intersection. As a result of the accident, both Mr. and Mrs. Wells sustained severe multiple injuries.

By receipt and release executed March 30, 1982, Barbara Wells acknowledged receipt of payment of $10,310.00 and William Wells acknowledged receipt of payment of $15,553.50 by Dairyland Insurance Company and in consideration of those sums granted a release to Larry G. Todd, Givonna Todd and their insurer, Dairyland Insurance Company. The release provides in pertinent part as follows:

"... We do hereby release, acquit and forever discharge Larry G. Todd and Givonna Todd and Dairyland Insurance of and from any and all actions, causes of action, claims, demands, damages, costs, loss of services, expenses and compensation on account of, or in any way growing out of, and any and all known and unknown bodily injuries and property damage resulting or to result to either or both of us from an accident that occurred on or about the 18th day of December, 1981, at or near Tioga LA. near Alexandria LA... This release contains the ENTIRE AGREEMENT between the parties hereto, and the terms of this release are contractual and not a mere recital."

A full copy of the release referred to is annexed to this opinion as Appendix I. This suit was filed on April 12, 1982.

It is the contention of the defendants that the negligence of Givonna Todd was the sole cause of the accident. Alternatively, they contend that if they are found to be joint tortfeasors with Mrs. Todd, since the above release does not expressly reserve the creditors' rights against them, under C.C. Art. 2203, as solidary obligors, they were also discharged by the discharge of Mrs. Todd. We first consider this alternative contention.

EFFECT OF RELEASE ON THE DEFENDANTS

The trial judge found that defendants were co-tortfeasors with Mrs. Todd, but concluded that the release, either on its face or according to the true intentions of the parties did not effect a discharge of anyone other than the Todds and Dairyland. In so concluding, he stated in his written reasons for judgment as follows:

"The Court finds that the release, either on its face or according to the true intention of the parties to it, does not have the effect of releasing anyone other than the parties named therein, the Todds and Dairyland. The release was executed as part of a partial settlement negotiated between plaintiffs' counsel and a representative of Dairyland Insurance Company; the entire consideration for the release was paid by Dairyland; the present defendants played no part in arriving at the partial settlement, paid no consideration toward the partial settlement and did not even know of its existence until it came to light indirectly during the course of this litigation.

Unlike the standard broad, general form of release commonly used in settling automobile liability claims, the release in this case was limited and specified that only the Todds and Dairyland were to be released. This distinguishes it from those cases in the jurisprudence dealing with the type of release containing the 'catch-all' language purporting to release all other possibly liable parties.

Moreover, even if the release might possibly appear on its face to have included parties not named, such was clearly not the intent of the parties to the release. In connection with their motion for summary judgment, plaintiffs introduced strong, convincing and unrebutted evidence that it was always their specific intention and the intention of the Todds and Dairyland to do nothing more than settle with the latter and to reserve full rights against all other parties, including defendants herein. Thus, were it to be considered significant for the release to contain a reservation of rights against the defendants herein, the Court has no hesitancy in finding that the failure of the release to contain some sort of reservation of rights was due to a mutual error of fact on the part of both the plaintiffs on the one hand and the Todds and Dairyland on the other.

Therefore, the Court will interpret the release according to its true intent only, which was to reserve all rights against the State of Louisiana, the Rapides Parish Police Jury and the latter's insurer, Hartford Accident and Indemnity Company."

We assume for now the correctness of the trial court's determination that the defendants are joint tortfeasors with Mrs. Todd.

The provisions of LSA-C.C. Art. 2203 apply to debtors ex delicto as well as to debtors ex contractu. Reid v. Lowden, 192 La. 811, 189 So. 286 (1939); Hoffpauir v. Kansas City Southern Railroad Company, et al., 219 So.2d 29 (La.App. 3rd Cir.1969); Clay v. State Farm Mutual Automobile Ins. Co., 330 So.2d 380 (La.App. 3rd Cir.1976). That article provides as follows:

Art. 2203. Remission as to one codebtor in solido

"The remission or conventional discharge in favor of one of the codebtors in solido, discharges all the others, unless the creditor has expressly reserved his right against the latter.

In the latter case, he can not claim the debt without making a deduction of the part of him to whom he has made the remission."

Without mentioning this article, the trial judge, in finding that the release on its face did not...