Bond v. Commercial Union Assur. CompaniesBond v. Commercial Union Assur. Companies
McBride & Brewster, Norman P. Foret, Lafayette, Gist, Methvin, Hughes & Munsterman, Dorwan G. Vizzier, Alexandria, Cooks & Chreitian, Sylvia R. Cooks, Lafayette, McLure & McLure, John G. McLure, Alexandria, for defendants-appellees.
Before DOMENGEAUX, GUIDRY and LABORDE, JJ.
LABORDE, Judge.
For the reasons stated in the companion case of Chester G. Bond, III, et ux, v. Cindy G. Jack, et al. (Docket Number 7489) 387 So.2d 613 (La.App.3rd Cir.1980), in which a separate decision has been rendered by us on this date, the judgment appealed hеrein is reversed and judgment rendered.
The liability of the uninsured motorist insurers is the excess of the judgment rendered in the companion case ovеr the liability of the insurer of that case. Commercial Union Insurance Company‘s limit is $5,000. Lumbermen‘s Mutual Casualty Company‘s limit is $100,000. Therefore, their respeсtive liability will be adjusted proportionally to their coverage. Blanchard v. Rodrique, 340 So.2d 1001 (La.App.1st Cir.1976); Veillon v. Southern Farm Bureau, 254 So.2d 130 (La.App.3rd Cir.1971).
We note that an “[a]ppeal is thе exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellatе court.” (
An appellee is required to answer an appeal only if he “desires to have the judgment modified, revised, or reversed in pаrt or unless he demands damages against the appellant. . Additionally, however, an appellee may by answer to the appeal, demand modification, revision, or reversal of the judgment insofar as it did not allow or consider relief prayed for by an incidental action filed in the trial court.” (
The party successful at the trial level cannot appeal the judgment to the Court of Appeal. Petition of Sewerage and Water Board of New Orleans, 248 La. 169, 177 So.2d 276 (1965). Defendants, Commercial Union and Lumbermen‘s Mutual, were successful at the trial level. Even though their third party demands were dismissed by the trial court, these defendants wеre not required to appeal from that dismissal under Articles 2083 and 2133 since they would be requesting relief incompatible with the judgment dismissing the plaintiffs’ clаims. Such relief could not be granted by this Court without first reversing the judgment on the main demand. To hold that
Because we earlier reversed the jury verdict on the main demand (see companion case) we now consider the judgmеnt dismissing the third party demands of Commercial Union and Lumbermen‘s Mutual. Rather than remand the third party demands for consideration by the trial court, we will dispоse of the demands in this opinion.
The question of whethеr Commercial Union and Lumbermen‘s Mutual are entitled to reimbursement from defendant Cindy Jack is a question of law. The answer is found in Niemann v. Travelers Company, 368 So.2d 1003 (La.1979). There the Supreme Court discussed rights which uninsured motorist insurers had when they paid claims pursuant to that coverage. With respect to the insurer‘s right to reimbursement
In the event of payment to any person under the coverage required by this Section and subject to the terms and conditions of such coveragе, the insurer making
such payment shall, to the extent thereof, be entitled to the proceeds of any settlement of judgment resulting from the exerсise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer.
The court interpreted the above statute in the following manner:
“On the basis alone of statutory interpretation, we find that the UM insurer has no right under
R.S. 22:1406 D(4) other than the right to reimbursement from such proсeeds, if any, that the insured in fact recovers from the underinsured tortfeasor.
* * * * * *
. . . If the UM carrier is to be afforded a right to subrogation or any othеr right more meaningful than that granted by
R.S. 22:1406 D(4) , the statute will have to be amended by the Legislature.”1
Although the court in Niemann was concerned with protecting an insured‘s right to settle with the tort-feasor and the tort-feasor‘s liability insured without intеrference from the uninsured motorist insurer, the language used by the court forecloses a more liberal interpretation of the statute which might allow the uninsured motorist insurer subrogation rights against the tort-feasor. The Supreme Court pointedly and emphatically pronounced that
We note on our own motion, by authority of
For the reasons set forth herein and in the companion case the judgment of the trial court dismissing plaintiffs’ demands is reversed and accordingly, it is Ordered, Adjudged, and Decreed that there be judgment herein in favor of plaintiffs and against defendant Commercial Union Assurance Company for the sum of TWO THOUSAND FIVE HUNDRED TWENTY-FOUR DOLLARS AND SEVENTEEN CENTS ($2,524.17), together with legal interest from date of judicial demand until pаid.
It is further Ordered, Adjudged, and Decreed that there be judgment herein in favor of plaintiffs and against defendant Lumbermen‘s Mutual Casualty Company for the sum оf FIFTY THOUSAND FOUR HUNDRED EIGHTY-THREE DOLLARS AND FORTY-ONE CENTS ($50,483.41), together with legal interest thereon from date of judicial demand until paid.
It is further Ordered, Adjudged, and Decreed that the judgment of the District Court dismissing the third party demands of Commercial Union and Lumbermen‘s Mutual against Cindy Jack is affirmed.
It is further Ordered, Adjudged, and Decreed that the judgment herein is to be consоlidated with, and not added to, the judgment rendered this date in the companion suit, # 7489.
Defendants herein are cast for all costs in this suit. Costs are to be paid by defendants in proportion to their liability for the entire amount of the judgment.
REVERSED AND RENDERED.