Sarah L. WILLIAMS, Individually and as Administratrix for the Succession of Joseph S. Williams, Sr., Cleastha Williams, Joseph S. Williams, Jr., Ira M. Williams, Gerald Williams, and Geraldine Williams,
v.
SEWERAGE & WATER BOARD OF NEW ORLEANS, Harold Gorman, G. Joseph Sullivan, M. Lambert, Henry Walters, Robert Muller, Wilfred Simmons, Paul Mumme, Sr., Ronald Hickerson, Larry Ellis, John Doe New Orleans Public Service, Inc., ABC Corporation and the XYZ Corporation.
Supreme Court of Louisiana.
*1384 Burton G. Klein, Klein & Klein, Jacques F. Bezou, DeRussy, Bezou & Matthews, Mack E. Barham, Robert E. Arceneaux, Kathy S. Austin, Barham & Arceneaux, New Orleans, for applicants.
Robert A. McMahon, Jr., Paul V. Cassisa, Jr., Paul V. Cassisa, Sr., Bernard, Cassisa, Saporito & Elliott, Metairie, for respondents.
SHORTESS, Justice Ad Hoc.[1]
This case presents the issue of whether an employer sued for recovery of worker's compensation is solidarily bound with a third party tort-feasor for the purpose of interrupting prescription. Because some elements of the damages recoverable from the employer and the tort-feasor are coextensive, we find that they are solidarily bound to that extent. Once prescription is interrupted based on this solidarity, the plaintiffs are free to assert whatever *1385 claims they have against the defendants. Thus, in this case, a suit timely filed against the employer for worker's compensation interrupted prescription as to the subsequent claim against the third party tort-feasor for damages.
FACTS
On September 2, 1986, Joseph S. Williams, Sr., an employee of the Sewerage & Water Board of New Orleans (S & WB), was assigned to serve as a member of a three-man team that was dispatched to remove a car from a drainage canal. A large crane manufactured by Little Giant Crane and Shovel Company (Little Giant) situated on top of a tractor trailer truck was to assist in the car's removal. After the crane lifted the car from the drainage canal, neighbors asked that the car be moved to a different location. As the crane lifted the car again, Williams and the other man saw that the boom of the crane was close to an overhead power line. The men attempted to signal the crane operator without success. Williams moved toward the crane and was apparently touching it when the crane came into contact with the overhead power line. Williams was electrocuted and killed.
The decedent's surviving widow and five major children filed suit on August 31, 1987 against S & WB and its executive officers seeking worker's compensation death benefits and tort damages. Also named defendants under tort theories of recovery were New Orleans Public Service, Inc. (NOPSI), the owner of the power line, and "ABC Corporation," the manufacturer of the crane. By third amended and supplemental petition filed August 26, 1988, the plaintiffs amended their petition to name Little Giant as the manufacturer of the crane.[2] Little Giant answered the petition and raised the affirmative defense of prescription, alleging that the Williamses' claims were prescribed by the liberative prescription of one year.
Prior to trial, the tort claims against NOPSI and S & WB were dismissed. The tort claim against NOPSI was dismissed by joint motion on October 11, 1989.[3] The tort claim against S & WB was dismissed by summary judgment rendered April 29, 1991, which recognized the employer's immunity from tort damages under worker's compensation law.[4]
The case proceeded to trial against Little Giant. During trial, Little Giant filed a peremptory exception of prescription. The trial judge heard argument on the exception outside the presence of the jury and denied it with oral reasons. Written reasons were later assigned which stated that the trial judge considered prescription interrupted as to the tort-feasor when the suit for worker's compensation was brought against the solidarily bound employer.
After the close of testimony, the jury answered special interrogatories, finding: the crane manufactured by Little Giant was defective, the defective condition of the crane was a legal cause of the injury to Williams, he did not contribute to his own injury, Little Giant was 55% at fault, Williams was 0% at fault, and S & WB was *1386 45% at fault.[5] The jury awarded damages of $200,000 to Williams' widow and $35,000 to each of his five major children, for a total of $375,000. Judgment consistent with the jury verdict was signed, awarding the Williamses $375,000 and denying Little Giant's exception of prescription.
Both parties appealed. Little Giant suspensively appealed, arguing the trial judge erred in denying its exception of prescription and the jury erred in its finding of fault and apportionment of fault. The Williamses took a devolutive appeal as to the issue of quantum, arguing that the award of $200,000 to Williams' widow and $35,000 to each of Williams' children was so low as to constitute an abuse of discretion.
The Fourth Circuit Court of Appeal pretermitted consideration of the Williamses' appeal on the quantum issue and Little Giant's appeal on the merits by reversing the trial court's judgment on Little Giant's exception of prescription.[6] The court of appeal held that S & WB's responsibility for worker's compensation and Little Giant's responsibility for tort damages were not solidary obligations. Thus, timely suit against S & WB did not interrupt prescription against Little Giant. The judgment in favor of the Williamses was reversed. A timely request for rehearing was denied; this court granted a writ to consider the issue.[7]
LAW
Delictual actions, such as the Williamses' claim against Little Giant, are subject to a liberative prescriptive period of one year which begins to run from the day injury or damage is sustained. La.C.C. art. 3492. Prescription is interrupted by the filing of suit in a court of competent jurisdiction. La.C.C. art. 3462. The interruption of prescription against one solidary obligor is effective against all solidary obligors. La.C.C. arts. 1799 and 3503. When it is clear on the face of a plaintiff's petition that prescription has run, the plaintiff bears the burden of showing why the claim has not prescribed. Lima v. Schmidt,
Relying on this court's opinions in Narcise v. Illinois Central Gulf Railroad Co.,
In Louviere, this court held the timely filing of suit by the employer's compensation insurer against a tort-feasor seeking recovery of compensation benefits paid to an injured employee interrupted prescription in favor of the employee during the pendency of the insurer's suit, allowing the employee to file an action for damages against the tort-feasor even after the one year prescriptive period had run. The court reached this conclusion after finding that, as between the compensation insurer and the employee, there was one principal cause of action. Louviere,
In Narcise, this court held that a railroad company liable to its employee under the Federal Employer's Liability Act (FELA) was solidarily liable with a third party tort-feasor. In explaining the nature of the solidary obligation, the court noted that the employer, under FELA, and the tort-feasor, under Louisiana tort law, were coextensively liable for certain damages sustained by the employee. It was this "coextensive" liability for the same thing which created the solidarity of the obligation. Narcise,
*1387 In this case, the court of appeal reviewed the codal articles and determined there was no solidarity between S & WB, the employer, and Little Giant, the tort-feasor. The appellate court found the Narcise opinion consistent with its interpretation of solidarity. The court of appeal erred, however, in construing too narrowly both our holding in Narcise, and the basic principles of solidarity.
In Hoefly v. Government Employees Insurance Co.,
The worker's compensation scheme is a statutory compromise instituted by the legislature to protect workers injured while on the job. The compromise is achieved because both employers and employees relinquish an advantage to benefit the scheme. "The employer gives up the immunity he otherwise would enjoy in cases where he is not at fault, and the employee surrenders his former right to full damages and accepts instead a more modest claim for bare essentials, represented by compensation." Malone & Johnson, 13 Louisiana Civil Law TreatiseWorker's Compensation, § 32 at 40 (1980). Thus, the worker's compensation scheme embraces aspects of employer fault and nonfault. "A suit for compensation benefits does not exclude the concept of fault; it merely gives the employer a shield against tort liability." Parker,
The first requisite of solidarity described in Hoefly is met here, as each defendant is "obliged to the same thing." Hoefly,
The death of an injured worker operates to abate his claim for any further compensation, but payments accrued and payable prior to his demise are due to his estate. This may appear superficially to differ from the provisions of Article 2315 of the Civil Code respecting the survival of claims in tort. However, in fact, the approach is the same in tort and in compensation.
* * * * * *
This action for wrongful death is designed to compensate the surviving dependent members of the family for their own personal losseconomic and emotionalsuffered because of the death. This tort action for wrongful death has its counterpart in Section 1231 and following of the Compensation Act, which *1388 recognize the claims of certain listed relatives of the deceased and of other members of his family, under designated conditions.
Malone & Johnson, 14 Louisiana Civil Law TreatiseWorker's Compensation, § 301 at 1-2 (1980) (footnotes omitted and emphasis supplied).
The court of appeal's error was its focus that solidary obligors must be liable for the same performance based on the same cause of action. It stated "[t]he tortfeasor is not responsible to the injured employee for worker's compensation and the employer is not responsible for his employee's tort (Article 2315) damages." Williams,
The court of appeal's approach was rejected in Hoefly, in which this court found solidary liability where one obligor was bound in tort and the other was bound in contract. The Hoefly court showed that the sources of the obligors' debts are irrelevant so long as they are both obligated to the same thing, that is, to repair the same damage. "The obligation may be in solido even though the obligations of the obligors arise from separate acts or by different reasons." Hoefly,
Narcise pointed out that differing sources of liability "[do] not preclude an in solido obligation to the extent that each is liable for certain damages sustained by plaintiff." Narcise,
Thus, to the extent that the worker's compensation death benefits and the wrongful death and survival provisions overlap, S & WB and Little Giant are obligated to the same thing even though the obligations arise from different sources.
The second requisite of solidarity is met as well. An obligation is solidary for the obligors when each obligor is liable for the whole performance. See La.C.C. art. 1794. Hoefly teaches that the obligor's liability for the "whole" "means simply that the debtor who has been sued cannot plead the benefit of division, which was invented for the benefit of sureties whereby the creditor is required to divide his action between them." Hoefly,
In Hoefly, the uninsured motorist carrier was liable only to the extent of its policy limits and only under the conditions and terms of the policy. Nonetheless, the court held that the obligations between the uninsured motorist carrier and the tort-feasor were solidary to the extent that each was liable for the same damage. Similarly, the employer and tort-feasor here share a common liability which is not subject to a plea of division. The employer's liability is subject to the limitations of worker's compensation law. Yet, both the employer and tort-feasor are solidarily liable up to that limit, just as the uninsured motorist carrier and tort-feasor were solidarily liable up to the carrier's policy limits.
The final requisite of solidarity is also met. Payment made by one solidary obligor exonerates the other obligor as to the creditor. La.C.C. art. 1794. The injured employee is not allowed to obtain double recovery on those elements of damages which are coextensive. The employer's right to be reimbursed for the worker's compensation paid by it out of any tort damages the injured employee ultimately obtains exists to prevent a double recovery. LSA-R.S. 23:1101(B). That the tort-feasor is not able to be reimbursed from the employer is of no consequence to the determination of solidarity. Solidarity looks only to the exoneration of the debt as to the creditor, and the fact that the obligors may not have corresponding rights of contribution or indemnity as between each other does not destroy solidarity. "[D]ebtors, although *1389 solidarily bound for the creditor's benefit, may have differing relationships among themselves. The conclusion that debtors are solidarily bound does not alone determine the rights and obligations of the debtors in relation to each other." Hoefly,
In Hoefly, the court noted the uninsured motorist carrier is entitled to subrogation rights to recover what it has paid to the insured from the tort-feasor. The tort-feasor, however, does not have corresponding rights against the insurer. This was not found to defeat solidarity in that case. Similarly, the worker's compensation insurer may recover from the tort-feasor what it has paid in compensation benefits even though the tort-feasor does not have corresponding rights of recovery.
The conclusion that the employer and the tort-feasor in this case are solidarily liable is further strengthened by this court's holding in Parker, where the plaintiff filed suit against her husband's employer, seeking compensation damages for his death. This suit was dismissed on an exception of no cause of action. Subsequently, the plaintiff filed a second suit against the employer's liability insurer seeking damages in tort. This court found that the first suit interrupted prescription on the second suit.
The court found that both the compensation suit and the tort suit were based on the occurrence of the employee's death and the monetary liability of the employer. The court held that the liability of the liability insurer derived from the employer, who was the defendant in the worker's compensation case. Thus, the compensation suit, wherein the employer and its compensation insurer were named defendants, was found to interrupt prescription for the tort suit, wherein the employer and its liability insurer were named defendants. Parker,
That the insurer was the same for both compensation and liability, and thus had notice of the second suit prior to its filing, does not change the court's essential holding. There is no reason to assume that an employer sued for recovery of worker's compensation benefits would notify its liability insurer of the suit if its liability insurer was different from its compensation insurer.
Little Giant argues that Parker is inapplicable here because the liability insurer had notice of the claim. Little Giant's arguments that it was not afforded notice of the suit are unavailing. Because S & WB and Little Giant are solidarily liable to the extent that they share coextensive liability to repair certain elements of the same damage, the timely suit by the Williamses against S & WB interrupted prescription as to their claims against Little Giant. "Interruption of prescription for solidary obligors is rationally related to the state's interest in providing full compensation to tort victims and holding defendants responsible for their delicts." Picone v. Lyons,
The cases relied upon by Little Giant perpetuate the idea, rejected in Hoefly, that parties cannot be solidarily liable unless their liability is based on the same cause of action, i.e. that obligations arising from tort and contract, or tort and worker's compensation, cannot be solidary. See Maryland v. Fabco Inc.,
In oral argument, Little Giant asserted that if the worker's compensation suit interrupted prescription on the tort claim filed against it, only Williams' widow was entitled to the benefit of the interruption since Williams' major children were not entitled to worker's compensation death benefits. Although it is unclear whether Williams' children are entitled to compensation death benefits,[8] both Williams' children and his widow share the same wrongful death cause of action against Little Giant. "When several parties share a single cause of action ..., suit by one interrupts prescription as to all." Louviere,
Based on the foregoing, we hold a suit timely filed against the employer for worker's compensation interrupted prescription as to the subsequent claim against the third party tort-feasor for damages. We reverse the court of appeal judgment which held to the contrary. Based on its erroneous conclusion as to the prescription issue, the court of appeal pretermitted consideration of the other issues raised on appeal, the quantum issue raised by plaintiffs and the liability issue raised by Little Giant. "When a court of appeal has not had the opportunity, or has found it unnecessary to review the merits of the controversy, this court's usual practice, when it becomes necessary to set aside an appeals court's reversal of a trial court judgment, is to remand the case to the court of appeal, even though this court is empowered to dispose of the case finally on writ review." Lirette v. State Farm Insurance Co.,
REVERSED AND REMANDED TO THE COURT OF APPEAL.
NOTES
Notes
[1] Judge Melvin A. Shortess, of the First Circuit Court of Appeal, sitting in place of Cole, J.
[2] Although the plaintiffs filed this amended petition May 6, 1988, they did not obtain leave of court to file the pleading until August 26, 1988. La.C.C.P. arts. 1151 and 1155.
[3] The parties stipulated at trial before the jury that NOPSI was not at fault in this matter.
[4] Although the S & WB executive officers were named defendants, service of process of these defendants was withheld at the plaintiffs' request. These defendants were not served and did not answer the petition, yet they were allowed to join in S & WB's motion for summary judgment. Such joinder constitutes a general appearance by these parties which subjects them to the jurisdiction of the court and impliedly waives all objections to the exercise of the court's jurisdiction. Although the judgment on the motion for summary judgment did not list the executive officers, it should have since they had joined in the motion with S & WB. Socorro v. City of New Orleans,
[5] We held in Guidry v. Frank Guidry Oil Co.,
[6]
[7]
[8] Under worker's compensation law, "proof of dependency is essential to recovery." Malone & Johnson, 14 Louisiana Civil Law Treatise Worker's Compensation, § 302 at 6 (1980).
[9] The reasoning in Louviere was supported by reference to LSA-R.S. 9:5801, which at the time provided "[a]ll prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants ... by the commencement of a civil action in a court of competent jurisdiction and in the proper venue." Id.,