125 So. 3d 546
La. Ct. App.2013Background
- Plaintiffs sued St. Bernard Parish and Lake Borgne Basin Levee District (LBBLD) for uncompensated commandeering of private land after Hurricane Katrina (removal of ~97,931 cu. yds. of soil).
- St. Bernard issued a commandeering order and entered cooperation agreements with USACE; LBBLD issued authorizations and allegedly agreed to compensate property owners.
- Plaintiffs voluntarily dismissed LBBLD with prejudice early in the case; LBBLD was later dismissed from the active plaintiff list but contested later joinder.
- Years later St. Bernard moved for leave to file a third-party demand against LBBLD (and USACE) seeking contribution and contractual indemnity; the trial court granted leave.
- LBBLD sought supervisory review arguing leave was improper because (1) comparative-fault law eliminates contribution among non‑intentional tortfeasors, (2) a defendant dismissed with prejudice cannot be made a third‑party for contribution, and (3) an indemnity claim is premature absent judgment against the third‑party plaintiff.
- The appellate court granted LBBLD’s writ application but denied relief, holding the trial court did not abuse its discretion in allowing St. Bernard to implead LBBLD on its contractual indemnity theory (and limited tort contribution based on the procedural posture).
Issues
| Issue | Plaintiff's Argument (St. Bernard) | Defendant's Argument (LBBLD) | Held |
|---|---|---|---|
| Whether trial court abused discretion by granting leave to file a third‑party demand after answer was filed | Leave was proper under La. C.C.P. arts. 1033 and 1111; trial court has broad discretion and impleader promotes judicial economy | Leave was improper because Plaintiffs dismissed LBBLD with prejudice and procedural rules do not create a substantive right to join a dismissed defendant | Trial court did not abuse discretion; leave was proper given delay and judicial‑efficiency concerns |
| Whether tort contribution claim against LBBLD survives after Plaintiffs dismissed LBBLD with prejudice | Contribution allowed if solidary liability exists (intentional conduct alleged) | Comparative‑fault rule (Art. 2324(B)) abolishes solidarity for nonintentional torts; dismissal with prejudice releases LBBLD so contribution is precluded | Court concluded negligence/contribution claims based on prior dismissal are precluded; solidary liability only if intentional conduct properly pled (court assumed contractual claim for procedural ruling) |
| Whether a third‑party indemnity claim is premature before the third‑party plaintiff is cast in judgment | Indemnity claim may be impleaded even if contingent; Article 1111 and federal Rule 14 analog support early impleader to avoid multiplicity of suits | Indemnitor not liable until indemnitee pays or sustains loss (Suire) — thus indemnity is premature | Court found persuasive authority allowing impleader of contingent contractual indemnity; indemnity claim not premature for procedural joinder purposes |
| Whether Plaintiffs’ dismissal with prejudice bars St. Bernard’s independent contractual indemnity claim against LBBLD | St. Bernard: Plaintiffs’ release does not extinguish St. Bernard’s separate contractual indemnity cause of action | LBBLD: Plaintiff’s release eliminates any basis to pursue LBBLD via contribution or related claims | Court held Plaintiffs’ dismissal does not bar St. Bernard from pursuing a separate contractual indemnity claim against LBBLD |
Key Cases Cited
- Dumas v. State ex rel. Dept. of Culture, Recreation & Tourism, 828 So.2d 530 (La. 2002) (discusses effect of La. C.C. art. 2324(B) on contribution and solidarity)
- Wall v. American Employers Ins. Co., 386 So.2d 79 (La. 1980) (settlement/release by plaintiff can eliminate right of contribution against released tortfeasor)
- Suire v. Lafayette City-Parish Consolidated Government, 907 So.2d 37 (La. 2005) (indemnitor liability requires that indemnitee actually pay or sustain loss)
- Jeub v. B/G Foods, Inc., 2 F.R.D. 238 (D. Minn. 1942) (federal Rule 14 allows impleader of contingent indemnity claims to avoid multiplicity of suits)
- DiBenedetto v. Noble Drilling Co., 23 So.3d 400 (La. App. 4 Cir. 2009) (Article 1033 does not authorize joinder of a previously dismissed defendant)
- Reggio v. E.T.I., 15 So.3d 951 (La. 2008) (indemnity is a separate substantive cause of action from the underlying tort)