Brown v. Drillers, Inc.Brown v. Drillers, Inc.
The instant case is a sequel to our recent decision in Daigle v. Clemco Industries, 613 So.2d 619 (La.1993). Daigle repudiates the holding in Schiffman v. Service Truck Lines, Inc., 308 So.2d 824 (La.App. 4th Cir.1974), that a pre-death release of a wrongful death claim is contra bonos mores, and declares that a beneficiary under
Refining Daigle‘s holding that such a predeath release is permissible, we add a requirement that the release instrument unequivocally reflect, while not necessarily by express reference, that the parties clearly contemplated a compromise of future wrongful death claims. For the reasons that follow, we find that the release instrument in the instant case does not. We thus reverse the court of appeal‘s decision dismissing the wife‘s wrongful death claim and remand.
I.
On February 9, 1979, Buel Brown fell from a drilling rig at the Strategic Petroleum Reserve Project in Bayou Choctaw, Louisiana. Seeking recovery for his injuries, Buel Brown filed suit, naming numerous entities as defendants, but serving only the following named defendants: National Union Fire Insurance Company of Pittsburgh, Pennsylvania; Granite State Insurance Company; The Home Indemnity Company; Pacific Employers Insurance Company; Millers Mutual Insurance Association of Illinois; Harbor Insurance Company; Employers Casualty Company; and Drillers, Inc. (hereinafter collectively referred to as “Defendants“). In 1980, the petition was amended to add as a party plaintiff Buel Brown‘s wife, Ruth Brown, seeking loss of consortium damages.1
In September 1982, Buel and Ruth Brown settled their pending suit. In connection therewith, the parties’ attorneys executed a Settlement Agreement, reflecting the terms of the settlement. One of those terms was that upon receipt of the settlement proceeds, both Buel and Ruth Brown would execute a Receipt, Release, Indemnification and Subrogation Agreement in Defendants’ favor (hereinafter referred to as the “Release Agreement“).
On September 8, 1982, both Buel and Ruth Brown, with the advise and assistance of counsel, executed the Release Agreement. That agreement is the crux of this case, and contains the following recital:
That for and in consideration of the sum of NINE HUNDRED THOUSAND AND NO/100 ($900,000.00) DOLLARS, and an annuity of ONE HUNDRED THOUSAND AND NO/100 ($100,000) DOLLARS, payable in twenty (20) years2 this date paid by [Defendants3] to Buel Brown, receipt of
which is hereby acknowledged, said Buel Brown and his wife Ruth Brown do by these presents:
(1) Grant a full release, discharge, and acquittance... to [Defendants] of and from any and all claims, demands, causes or rights of action or suits at law or in equity of whatsoever kind of [sic] nature, which Buel Brown and/or Ruth Brown have or may have against them or against any one or more of them for or because of any manner or thing done, admitted, or suffered to be done by [Defendants], prior to and including the date hereof, particularly on account of or relating in any way to injuries suffered by Buel Brown on or about February 9, 1979, when he fell from a drilling rig at the Strategic Petroleum Reserve Project in Bayou Choctaw, Louisiana, including, but not limited to, the matters asserted in the lawsuit styled “Buel Brown v. Drillers, Inc., et al.” bearing number 23-859 on the docket of the Eighteen Judicial District Court for the Parish of Iberville; the aforesaid amount of NINE HUNDRED THOUSAND AND NO/100 ($900,000.00) DOLLARS, and the ONE HUNDRED THOUSAND AND NO/ 100 ($100,000) DOLLARS annuity paid to Buel Brown, simultaneously with the execution of this instrument being a full and final payment, settlement, and compromise of any and all claims, demands, causes and/or rights of action ... which Buel and/or Ruth Brown, their successors, assigns, employees, agents, and lessees, have or may have against [Defendants]; Buel Brown and Ruth Brown further instruct their attorney to dismiss with prejudice, “Buel Brown v. Drillers, Inc. [supra ],” it being the intent hereof that Buel Brown and Ruth Brown, in consideration of the afore-mentioned payment made to Buel Brown, grant a full and complete release and discharge in connection with the aforesaid matters ... to [Defendants].
Further, the Release Agreement includes an express indemnity provision, requiring that Buel and Ruth Brown hold harmless, defend and indemnify Defendants for any future claims asserted as a result of Buel Brown‘s injuries; particularly, Paragraph 3 of the agreement recites that Buel and Ruth Brown:
Bind and obligate themselves, their heirs, administrators, and executors to hold harmless, defend and indemnify [Defendants] for the injuries Buel Brown alleges he sustained and to each and all of them to hold harmless and to indemnify them or any one of them from any losses or damages of any nature whatsoever sustained or which may be sustained in the future, directly or indirectly, as a result of the injuries heretofore recited, because of other claims, demands, or causes of action of whatever type or kind which may be made against them by Buel Brown, Ruth Brown, their heirs, administrators, executors or assigns ...
Still further, the Release Agreement contains a representation by Buel Brown to the effect that he had consulted with his physicians, was advised regarding the prognosis of his injuries, and disclaimed any rights in the event “his condition worsens in the future“; particularly, Paragraph 4 of the agreement states that Buel Brown:
[W]arrant[s] that he has discussed his physical, medical, and mental condition with physicians of his own choosing or with physicians with whom he is satisfied, and he is fully aware of his medical, physical, and mental condition and is aware of the prognosis for the future. The said Buel Brown further warrants that he is aware of the fact that his condition may grow worse than it is, or seems to be, and that surgery or other further treatment may be required in the future; that in executing this Receipt, Release, Indemnification, and Subrogation Agreement, he is completely giving up and discharging any and all rights he has and that he may never again proceed against such parties in the event his condition worsens in the future; and that he is desirous of accepting the sum of NINE HUNDRED THOUSAND AND NO/100 ($900,000.00) DOLLARS, and the ONE HUNDRED THOUSAND ($100,000.00) DOLLAR annuity in full and final settlement and discharge of all of his legal rights ... arising out of or resulting from his injuries as aforesaid, and that he is of
the opinion that this settlement is reasonable and proper under the circumstances.
As required by the Release Agreement, the pending lawsuit was dismissed. However, in May 1987, approximately five years after the release instrument was executed, Buel Brown died as a result, at least in part, of the injuries he sustained in the 1979 accident. Ruth Brown then filed the instant wrongful death action on behalf of herself and her minor daughter, Kimberly Brown, against Defendants. Answering that suit, Defendants interposed the release instrument. More particularly, in their answer, Defendants asserted four affirmative defenses: release, indemnity, confusion and set off. Defendants also filed a third party demand against Ruth Brown for indemnification; Defendants alleged that under the indemnity provision of the instrument, Ruth Brown was required to hold harmless, defend and indemnify them for the wrongful death claim she asserted on Kimberly Brown‘s behalf.
Thereafter, Defendants filed a motion for summary judgment, claiming, among other things, that Ruth Brown‘s wrongful death claim was barred by the release instrument. Ruth Brown responded by filing her own affidavit. In her affidavit, she attested that “[b]y signing the document, she did not intend to release a future wrongful death claim,” and that “[a]t the time she signed the document, she did not think that [Buel Brown] would die from his injuries but would grow old.”
Citing the holding in Schiffman v. Service Truck Lines, Inc., 308 So.2d 824 (La.App. 4th Cir.1974), that an anticipatory waiver a wrongful death claim is contra bonos mores, the district court held that Ruth Brown could not have compromised her claim or her minor child‘s claim for wrongful death before her husband died. While Defendants’ application for supervisory writs was pending, we handed down our decision in Daigle v. Clemco Industries, 613 So.2d 619 (La.1993), repudiating the Schiffman holding and declaring that a prospective beneficiary under
Citing Daigle, supra, the court of appeal granted Defendants’ application in part,4 and reversed in a brief per curiam peremptory writ grant and order. Specifically, the court of appeal held that the release instrument Ruth Brown signed was not contra bonos mores, but rather was “a valid compromise and settlement” of all her claims against Defendants and that it “shall be given effect.” In so holding, the court of appeal neither considered the Civil Code articles on transaction and compromise, nor discussed the parties’ intent as reflected in the signed release instrument.
We granted Ruth Brown‘s writ application to consider the correctness of that decision. 619 So.2d 557 (La.1993). Based on the following analysis of the codal articles governing transaction and compromise and of the parties’ intent as reflected in the release instrument, we find that the instrument does not clearly contemplate a release of future wrongful death claims.
II.
As evidenced by the Release Agreement,5 the parties have entered into a transaction
As authorized by
While Defendants dispute the latter procedural point, contending that Plaintiff has the burden of proof here, the cases on which they rely involve attempts by plaintiffs to rescind a compromise. Saunders v. New Orleans Public Service, Inc., 387 So.2d 603, 605 (La. App. 4th Cir.), writ denied, 394 So.2d 614 (La.1980); Barnhill v. Consolidated Medical, Disability & Life Trust, 569 So.2d 1115, 1117 (La.App. 3d Cir.1990), writ denied, 572 So.2d 93 (La.1991); Ellison v. Michelli, 513 So.2d 336 (La.App 4th Cir.1987). Those cases stand for the proposition that the burden of establishing the invalidity of a compromise is on the party attacking the instrument.9 This
Shifting back to the codal provisions,
[1]Transactions regulate only the differences which appear clearly to be comprehended in them by the intention of the parties,
[2] whether it be explained in a general or particular manner,
[3] unless it be the necessary consequence of what is expressed; and
[4] they do not extend to differences which the parties never intended to include in them.
We utilize these four factors below as the framework for analyzing the issue of contractual interpretation presented in the instant case.
In applying the rule of construction set forth in
The meaning and intent of the parties to a written instrument, including a compromise, is ordinarily determined from the four corners of the instrument, and extrinsic (parol) evidence is inadmissible either to explain or to contradict the terms of the instrument. Maltby v. Gauthier, 526 So.2d 455, 457 (La.App. 5th Cir.), writ denied, 531 So.2d 474 (La.1988); Smith v. Leger, 439 So.2d 1203 (La.App. 1st Cir.1983).10 Louisiana courts, however, have crafted a special exception to the extrinsic evidence rule for compromise agreements based on an in pari materia reading of
Moak, supra stands for the proposition that when a dispute arises as to the scope of a compromise agreement, extrinsic evidence can be considered to determine exactly what differences the parties intended to settle. Following Moak, a long line of jurisprudence holds that a general release will not necessarily bar recovery for those aspects of a claim not intended by the parties to be covered by the release. Under that jurisprudential rule, the parties to a release instrument are permitted to raise a factual issue as to whether unequivocal language in the instrument was intended to be unequivocal.
Louisiana courts, however, have tempered that jurisprudential rule, recognizing that absent some substantiating evidence of mistaken intent, no reason exists to look beyond the four corners of the instrument to ascertain intent. Duet v. Lucky, 621 So.2d 168, 173 (La.App. 4th Cir.1993). Utilizing a case-by-case, factual analysis, Louisiana courts have limited the rule‘s application to cases in which substantiating evidence is presented establishing either (1) that the releasor was mistaken as to what he or she was signing, even though fraud was not present; or (2) that the releasor did not fully understand the nature of the rights being released or that the releasor did not intend to release certain aspects of his or her claim. Higgins v. Spencer, 531 So.2d 768, 772 (La.App. 1st Cir.), writ denied, 532 So.2d 106 (La.1988). When the factual circumstances surrounding the execution of the release instrument do not fall within either of the above categories, Louisiana courts, applying
III.
Briefly, the parties’ contentions regarding the scope of the release instrument are as follows.
Plaintiff suggests that we adopt a blanket rule that a future wrongful death claim can be released (or subject to an indemnity obligation)13 only if the claim is specifically mentioned in the release instrument. Plaintiff contends that, in any event, the release instrument under scrutiny, by its plain terms, deals only with Buel Brown‘s personal injury claims and has nothing to do with the wrongful death claims asserted here. In support of this construction, Plaintiff relies on the wellsettled principle that a tort victim‘s personal injury claims are legally separate and distinct from his beneficiaries’ wrongful death claims, citing Guidry v. Theriot, 377 So.2d 319 (La.1979).
Alternatively, Plaintiff contends that the release instrument is, at best, ambiguous as to whether the parties intended to include future wrongful death claims within its scope. In support of this contention, Plaintiff relies on three things. First, Defendants failed to include in the release instrument, which they drafted, a reference either generally to death as a potential outcome of the claimed tort, or particularly to wrongful death claims. Second, Defendants failed to obtain, and to include in the instrument, a release of the wrongful death claim of the other potential beneficiary, Kimberly Brown, the couple‘s minor child. And, third, Plaintiff‘s affidavit in which she attests to her contrary intent. Plaintiff submits that had Defendants wished to broaden the release to include wrongful death claims, it was incumbent upon them to so specify. Citing
In the further alternative, Plaintiff contends that the court of appeal incorrectly resolved the ambiguity regarding the scope of the release instrument on summary judgment. Citing the jurisprudential rule, discussed above, Plaintiff argues that such ambiguity must be correctly resolved on remand based on extrinsic evidence.
Conversely, Defendants contend that Plaintiff‘s request that this court adopt a blanket requirement of expressly mentioning in the release instrument the talismanic term wrongful death is contrary to
Defendants further contend that the language in the release instrument is express and unequivocal, covering any and all—existing and future—claims, rights of action or demands relating to Buel Brown‘s injuries. As Ruth Brown‘s wrongful death action is a claim relating to Buel Brown‘s personal injuries, Defendants urge that it is encompassed within that all-encompassing language. Defendants contend that, contrary to Plaintiff‘s optimistic attestations, the language in the instrument reflects the parties’ intent to settle wrongful death claims just as it does their intent to settle claims arising from any other worsening of Buel Brown‘s personal injuries. Defendants emphasize that Plaintiff signed
Defendants still further contend that
IV.
To place our analysis of the issue of contractual interpretation presented here in context, we begin by setting forth a basic distinction between the tort victim‘s personal injury action and his or her beneficiaries’ wrongful death action under
The tort victim‘s personal injury action arises simultaneously with the claimed tortious occurrence and compensates for those injuries which are peculiar and personal to the tort victim. Guidry, supra; Knight v. Samuel, 447 So.2d 587 (La.App. 3d Cir.), writ denied, 449 So.2d 1349 (La.1984). In stark contrast, the beneficiaries’ wrongful death action, by definition, comes into existence upon the tort victim‘s death and “serves to compensate a legislatively created class of persons for the loss occasioned by the wrongful killing of the decedent.” Knight, 447 So.2d at 593-94; Daigle, 613 So.2d at 623 (citing Guidry, supra). The beneficiaries’ action encompasses their damages suffered from the moment of the tort victim‘s death and thereafter. Taylor, 618 So.2d at 840; Guidry, 377 So.2d at 322. The beneficiaries’ action compensates them for their own personal losses, both economic and emotional, suffered as a result of the tort victim‘s death. Williams, 611 So.2d at 1387.
In Guidry, supra, we recognized that a necessary corollary of this basis distinction is that the tort victim lacks the power to compromise the beneficiaries’ potential wrongful death action because that action “never existed or arose in favor of the victim.” Id. at 326. A contrary rule, we explained, would have the following effect:
If the actions are deemed but one cause of action giving rise to recovery by different individuals it would follow that in the event the victim compromised his claim and then died the wrongful death action would be lost to the beneficiary. We do not believe the legislature intended such a result.
The rule in Louisiana, however, has long been established: “It was rather early recognized [in Louisiana] that the victim‘s compromise of his action and release of the defendant does not bar a wrongful death action by the beneficiaries against the same defendant on the same issues.” H. Johnson, Death on the Callais Coach: The Mystery of Louisiana Wrongful Death and Survival Actions, 37 La.L.Rev. 1, 47 (1976); Johnson v. Sundbery, 150 So. 299 (La.App. 1st Cir.1933);
V.
With that historical backdrop in mind, we return to the contractual interpretation issue presented in the instant case. The issue presented here is whether the language employed in the release instrument reflects that the parties clearly comprehended, in light of the surrounding circumstances, a release of future wrongful death claims.
When, as here, the parties dispute exactly what claims were clearly contemplated to be covered by a release, the jurisprudential rule allowing consideration of extrinsic evidence to determine the parties’ intent would ordinarily, as Plaintiff contends, be invoked and thus dictate that we remand for consideration of such extrinsic evidence.16 However, that jurisprudential rule is inapplicable here. While Defendants have the burden of proof, they neither suggest nor argue that summary judgment is inappropriate or that they should be given an opportunity to offer extrinsic evidence of the parties’ intent. Defendants rely solely on the language of the release instrument. The instant case thus turns strictly on an interpretation of the parties’ intent as reflected in the release instrument.
Utilizing the four factors set forth in
(i) Transactions regulate only the differences which appear clearly to be comprehended in them by the intention of the parties:
The code provides that a compromise covers only those matters “clearly” contemplated by the compromise instrument. Under the code, the release instrument here can be construed as precluding Plaintiff‘s wrongful death action only if the parties clearly contemplated that the release would cover that future action. Neither the district court nor the court of appeal considered this contractual intent issue, relying instead on Schiffman, and Daigle, respectfully. In both of those cases, however, the release instrument expressly referred to death claims.
Turning to the wording of the release instrument here, it lacks reference either generally to death as a potential outcome of the claimed tort, as in Schiffman, or specifically to wrongful death claims, as in Daigle. In their attempt to bring Ruth Brown‘s wrongful death claim within its terms, Defendants thus must rely on one or more of the following general recitals in the Release Agreement:
(1) “a full release, discharge, and acquittance... of and from any and all claims, demands, causes or rights of action or suits at law or in equity of whatsoever kind of [sic] nature ... particularly on account of or relating in any way to injuries suffered by Buel Brown on or about February 9, 1979 [the date of the claimed tort]” (Paragraph 1);
(2) “a full and final payment, settlement, and compromise of any and all claims, demands, causes and/or rights of action... which Buel and/or Ruth Brown ... have or may have against [Defendants] ... it being the intent hereof that Buel Brown and Ruth Brown ... grant a full and complete release and discharge in connection with the aforesaid matters ... to [Defendants]” (Paragraph 1); or
(3) “in full and final settlement and discharge of all of his legal rights ... arising out of or resulting from his injuries” (Paragraph 4).
The latter disclaimer, as pointed out in oral argument, obviously is directed solely at Buel Brown‘s personal injury claims and is thus inapposite. As to the former two general recitals, these, by their express terms, cover all claims arising out of Buel Brown‘s personal injuries. The issue before us thus can be narrowed to whether these general recitals are sufficient to clearly express the parties’ intent that the release instrument cover Ruth Brown‘s future wrongful death claim.
(ii) Transactions can “be explained in a general or particular manner“:
The code also provides that the differences settled by a compromise can be recited in a general manner. Plaintiff nonetheless contends that the strong emotional overtones inherent in the execution of anticipatory releases of wrongful death claims dictate that this court adopt a blanket express waiver requirement.17 Conversely, Defendants contend that the adoption of such a blanket requirement would be inconsistent both with
Continuing, Defendants cite as controlling the test enunciated in Daigle that “the compromise of a prospective wrongful death claim has res judicata effect if there is no error, fraud, duress or undue influence which vitiates the consent of the potential wrongful death beneficiary.” 613 So.2d at 620-21. Applying that test, Defendants emphasize that no vice of consent is either alleged or present here—Plaintiff was represented by counsel throughout, indeed the same counsel still represents her; Plaintiff received substantial compensation; and the release instrument was executed almost three years post-accident, and five years pre-death. It follows, Defendants contend, that Daigle‘s authorization of anticipatory releases of wrongful death claims, coupled with
We agree with Defendants’ contention that Daigle disposes of Plaintiff‘s argument that anticipatory releases of wrongful death actions should be treated differently than releases of other future actions, and thus decline Plaintiff‘s invitation to adopt an express waiver requirement. We disagree, however, with Defendants’ further contention that Daigle compels a conclusion that the general recitals in the release instrument encompass Plaintiff‘s future wrongful death action.
Even when valid, releases of future actions are narrowly construed to assure that the parties fully understand the rights released and the resulting consequences. As a result, if the release instrument leaves any doubt as to whether a particular future action is covered by the compromise, it should be construed not to cover such future action.19
The underlying rationale for the special treatment accorded releases of future actions is succinctly stated as follows: “[w]herever a bargain is intended to operate in the future as an exemption from liability the courts apply more stringent rules of interpretation, partly because the chances are smaller that the parties have adverted to this very cause of action, and partly because these contracts tend to be against public policy.” 15 W. Jaeger, Williston on Contracts § 1825, pp. 479-80 (3d Ed.1972).21 While Daigle puts to rest the public policy concern raised by the release of such future actions, Daigle does not even consider the other concern of whether the parties adverted to the specific future cause of action allegedly released, which is the pivotal issue here.
That the parties probably did not advert to the wrongful death action in entering the release instrument is supported by both the facts and the state of the law at the time the agreement was executed.
Factually, nothing in the circumstances surrounding the execution of the release instrument suggests that the parties were contemplating Buel Brown‘s death. To the contrary, no one thought Buel Brown would die from his injuries. Plaintiff attests to this fact in her affidavit. Defendants concede this fact, noting in their brief that at the time the release instrument was executed, Buel Brown‘s death was not imminent. Indeed, hindsight confirms this fact; Buel Brown lived another five years after the release instrument was executed. This fact is further corroborated by the plain language of the release instrument; while Buel Brown acknowledged in the release instrument that his condition might worsen, the instrument does not mention death as a possible consequence of the claimed tort.
The state of the law at the time the release instrument was executed likewise reflects that the parties did not advert to a future wrongful death action. On September 8, 1982, the prevailing jurisprudence was that neither Buel nor Ruth Brown could compromise a future wrongful death action.22 While this factor alone is not necessarily sufficient to establish the parties’ intent, it weighs in favor of our finding that the parties did not clearly comprehend that this future action would be covered by the release instrument. Hence, the state of the law at the time the
Summarizing, we find that the parties did not clearly contemplate that the release instrument would cover Ruth Brown‘s future wrongful death action. As established above, the factual and legal circumstances surrounding the execution of the release instrument establish that the parties did not advert to a future wrongful death action in executing the instrument. Moreover, there is no language in the instrument indicating that the parties intended to settle anything other than claims arising out of Buel Brown‘s personal injuries.
While on this factor, we address Defendants’ related contention that under
The jurisprudence construing
In an attempt to resolve this apparent conflict, we retrace
Nonetheless, there was no existing wrongful death claim at the time the release instrument was executed that was later discovered; Plaintiff‘s wrongful death claim did not come
(iii) “The necessary consequence of what is expressed” qualification:
In a further attempt to bring Ruth Brown‘s wrongful death claim within the ambit of the release instrument, Defendants rely on
The jurisprudence interpreting the “necessary consequence” provision of
Applying those principles to the instant case, we find Defendants’ reliance on this qualification misplaced. The release instrument, by its express terms, covers only claims arising out of Buel Brown‘s personal injuries. The wrongful death claim in question is not a necessary consequence of Buel Brown‘s personal injuries—logically, legally or factually. Logically, as Plaintiff contends, it cannot be said that a necessary consequence of personal injury is death. Legally, as outlined above, claims arising out of a tort victim‘s personal injuries are separate and distinct from his beneficiaries’ wrongful death claim. And, factually, as discussed above, at the time the release instrument was executed, no one thought that Buel Brown would die as a result of his injuries from the accident in question.
A more basic deficiency in Defendants’ argument that the wrongful death action is a necessary consequence of what is expressed in the release instrument is that it would require we read into the instrument, which states that it covers all claims arising out of Buel Brown‘s personal injuries, a statement that it covers all claims arising out of the claimed tort. The latter verbiage, unlike the actual verbiage in the release instrument, has been construed in other states as clearly evidencing an intent to compromise all claims arising from a common tort, including both the tort victim‘s personal injury action and the beneficiaries’ subsequently arising wrongful death action. F.W. Woolworth Co. v. Todd, 204 Okla. 532, 231 P.2d 681 (1951).27
(iv) Transactions do not extend to differences which the parties never intended to include in them:
Defendants’ final attempt to bring the wrongful death claim within the scope of the differences the parties intended to settle is based on the fact that the only claim Ruth Brown had at the time the release instrument was executed was her wrongful death action. From this premise, Defendants urge that if this future action was not intended to be included within the scope of the release, then Ruth Brown‘s execution of the instrument would have been a meaningless gesture. We disagree. Defendants overlook the fact that at the time the release instrument was executed, Ruth Brown was a party plaintiff to the pending suit, asserting a claim for loss of consortium, albeit before such claim was legislatively authorized.28
This final factor reiterates the important role the intent of the parties plays in determining the scope of compromise agreements in Louisiana; differences which the parties do not intend to settle are unaffected by a compromise agreement. Matthew v. Melton Truck Lines, Inc., 310 So.2d 691, 693 (La.App. 1st Cir.1975). Applying that factor here, we find the release instrument does not extend to Ruth Brown‘s future, uncontemplated wrongful death action, an action entirely separate and apart from Buel Brown‘s action for his personal injuries and Ruth Brown‘s claim for loss of consortium. In so finding, we are not unmindful of the strong policy favoring compromise agreements and finality of settlements. Rivett v. State Farm Fire and Casualty Co., 508 So.2d 1356 (La.1987); Succession of Teddlie, 385 So.2d 902, 904 (La.App. 2d Cir.), writ refused, 393 So.2d 742 (La.1980). The policy favoring compromise agreements, however, cannot defeat the statutorily created rights in favor of survivors of tort victims wrongfully killed. In any event, our holding here, together with our holding in Daigle, permits defendants to conclusively compromise potential wrongful death claims, provided the intent to do so is unequivocally reflected, while not necessarily by express mention of such claims, in the language employed in the release instrument. The release instrument here does not do so.
VI.
Since we rule in Plaintiff‘s favor regarding the interpretation of the release provisions, we must next address the parties’ contentions regarding the indemnity provision of that same instrument. Generally, the indemnity provision provides that Buel and Ruth Brown will hold harmless, indemnify and defend Defendants in the event that there be any further claims arising out of Buel Brown‘s personal injuries by anyone, expressly including his heirs. Defendants submit that Kimberly Brown‘s wrongful death claim falls squarely within that provision. Defendants further submit that a greater amount was paid in settlement than otherwise would have been paid solely because of the inclusion of that indemnity obligation. To allow Plaintiff to avoid the indemnity obligation for which she was compensated, Defendants urge, would result in her being unjustly enriched. Plaintiff counters that Defendants should not be able to accomplish through the back door via the indemnity provision a release of the minor‘s wrongful death claim when they could not have accomplished that same result directly without taking the additional step of obtaining court approval.29
Our finding renders it unnecessary to address Plaintiff‘s counter argument regarding Defendants’ attempted use of the indemnity provision as a backdoor method of obtaining a release of the minor child‘s claim. Nonetheless, we note that in jurisdictions, like Louisiana, that have adopted statutory procedures for obtaining minor settlements, defendants should not be permitted to bypass such procedures by the simple expedient of including an indemnity provision in a release instrument executed by the minor‘s parent.31
As to Defendants’ argument regarding unjust enrichment, we note that both the courts and commentators have recognized the potential double recovery problem presented in cases like this one. When, as here, the tort victim during his lifetime is compensated, either by judgment or settlement, and after his death his heirs are permitted to pursue wrongful death claims, the potential double recovery problem arises. This problem stems from the overlap between the elements of damages recovered by the tort victim in the earlier action or settlement, and the elements of damages claimed by the beneficiary in the wrongful death action. The solution to this problem, as Defendants acknowledge by asserting the affirmative defense of set-off, is to allow, if warranted, some type of credit.32 On remand, the trial court can consider the potential for double recovery and tailor any judgment rendered accordingly.
VII.
For the foregoing reasons, we conclude, as a matter of law, that the release instrument was not intended to cover the wrongful death actions asserted by Ruth Brown and Kimberly Brown. We thus reverse the judgment of the court of appeal dismissing Ruth Brown‘s wrongful death action based on the release instrument; overrule Defendants’ motion for summary judgment on their third party demand against Ruth Brown based on the indemnity provision of that instrument; and remand to the district court for further proceedings.
REVERSED AND REMANDED.
Notes
Defendant shall purchase an annuity payable to Kimberly Lynn Brown ... Such payment is made to Kimberly Brown as an attempt to compensate her for damages sustained as a result of being deprived of nurture, guidance and companionship of a healthy father ...
When parties have compromised generally on all the differences, which they might have had with one another, the titles which they then know nothing of and which were afterwards discovered, are not a cause of rescinding the transaction, unless they have been kept concealed on purpose by the deed of the parties. But the transaction becomes void, if it relates only to an object upon which it is provided by the titles newly discovered, that one of the parties has no right at all.
The law distinguishes: the compromise may be annulled if it involves a single object, and titles subsequently discovered come to demonstrate that one of them did not have any right; it is otherwise if the object of the compromise was general and involved all the questions outstanding between them. However, even in the last case, the demand in nullity is receivable if the titles were fraudulently withheld by one of the parties.
Planiol, supra at § 2301.