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Kelley v. General Insurance Co. of America

Court of Appeal of Louisiana, First Circuit

December 23, 2014


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Appealed fro the 19th Judicial District Court in and for the Parish of East Baton Rouge, Louisiana. Trial Court No. C 576,336. Honorable Jerome H. Winsberg, Judge Ad Hoc.

Edward J. Walters, Jr., Darrel J. Papillion, Baton Rouge, Louisiana, Attorneys for Plaintiff-Appellee and Plaintifl-2nd Appellant, Timothy E. Kelley.

Robert E. Birtel, Metairie, Louisiana, Attorney for Defendant-Appellee, General Insurance Company of America.

Timothy G. Schafer, New Orleans, Louisiana, Attorney for Defendants-Appellants and Defendants-Appellees, Katherine Skinner and USAA Casualty Insurance Company.

BEFORE: KUHN, PETTIGREW, AND WELCH, JJ. PETTIGREW, J. Concurs in part and DISSENTS and assigns Reasons.


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[2014 0180 La.App. 1 Cir. 2] WELCH, J.

In this action for damages, the defendants, Katherine Skinner and her liability insurer, USAA Casualty Insurance Company[1] (" USAA" ) appeal a judgment rendered pursuant to a jury verdict in favor of the plaintiff, Timothy E. Kelley, and against Skinner and USAA, in solido, in the amount of $422,500.00, plus judicial interest and costs. Kelley has separately appealed challenging the quantum of damages awarded by the jury for his personal injuries. For reasons that follow, we affirm the judgment of the trial court.


On March 16, 2008, Kelley was a patron of the " Exxon on the Run" located on Perkins Road in Baton Rouge, Louisiana, and was pumping gas into his vehicle at one of the gas pumps. At the same time, an unidentified patron, who had finished pumping gas at the pump opposite Kelley, drove off with the gas pump hose and nozzle still attached to the patron's vehicle. The hose stretched and ultimately snapped back, violently striking and injuring Kelley. Kelley sustained injuries from this incident, including back and neck injuries, which aggravated his pre-existing back and neck injuries that had previously required surgery.

On March 12, 2009, Kelley timely filed a petition for damages against his uninsured/underinsured motorist (" UM" ) carrier, General Insurance Company of America, on the basis that the unidentified patron, who drove away with the gas pump hose still attached to the vehicle, was " uninsured" under the applicable law and pursuant to his contract of insurance. In addition, Kelley sued alleged tortfeasors, Gilbarco, Inc. (" Gilbarco" ), Catlow, Inc. (" Catlow" ), Exxon Mobil [2014 0180 La.App. 1 Cir. 3] Corporation (" Exxon" ), and R. L. Hall and Associates (" Hall" ).[2] In a supplemental and amending petition filed on March 2, 2011, Kelley added as defendants Skinner, the previously unidentified patron who drove away with the gas pump attached to her vehicle, and her liability insurer, USAA.[3] According to Kelley, he

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added Ms. Skinner to the lawsuit as soon as he was able to Identify and locate her.[4]

Skinner and USAA filed a peremptory exception raising the objection of prescription, urging that Kelley's claims had prescribed because they were filed more than one year after the date of the accident. Arguing that the exception should be referred to the trial on the merits because the basis for the exception was dependant upon the jury's findings, Skinner and USAA asserted that " unless the jury finds that [they] are joint tortfeasors with a timely named and served defendant ... or are liable in solido with a timely named and served defendant ..., the petition ... is barred by the one year prescriptive period provided under La. [Civil Code art.] 3492." At a hearing on July 25, 2012, the issue of prescription was argued and submitted, and the trial court overruled the exception in a judgment signed on July 27, 2012.[5]

[2014 0180 La.App. 1 Cir. 4] The matter then proceeded to a jury trial from July 15, 2013, until July 17, 2013. At the conclusion of the trial, the jury awarded Kelley damages as follows:

Past medical expenses


Future medical expenses


Past physical pain and suffering


Future physical pain and suffering


Past mental anguish


Future mental anguish


Loss of enjoyment of life




Following the jury's verdict, Skinner and USAA re-urged the peremptory exception raising the objection of prescription, and the trial court overruled the objection. Thereafter, the trial court signed a written judgment on September 4, 2103, in accordance with the jury's verdict as follows:

IT IS ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of the plaintiff, Timothy E. Kelley, and against defendants, Katherine Skinner and USAA Casualty Insurance Co., in solido, in the sum of Four Hundred Twenty-Two Thousand Five Hundred ($422,500.) Dollars, together with judicial interest thereon and for costs.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that there be judgment in favor of the defendant, General Insurance Company of America,

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and against the plaintiff, Timothy E. Kelley, dismissing the plaintiff's lawsuit against General Insurance Company of [America], with prejudice and at the plaintiff's costs.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that (1) the cross-claim of General Insurance Company of America against defendants, Katherine Skinner and USAA Casualty Insurance Co. is dismissed as moot; and (2) the exception of prescription of Katherine Skinner and USAA Casualty Insurance Co. directed to the plaintiff's cause of action is [overruled].

[2014 0180 La.App. 1 Cir. 5] Kelley filed a motion for judgment notwithstanding the verdict (JNOV), which was denied by the trial court in a judgment signed on November 8, 2013.

Skinner and USAA have appealed the trial court's September 4, 2013 judgment challenging the trial court's ruling on the objection of prescription. Kelley filed a separate appeal, challenging both the trial court's final judgment of September 4, 2013, and the trial court's November 8, 2013 judgment denying his JNOV. In his appeal, Kelley contends that the jury abused its discretion and was manifestly erroneous in: failing to award him damages for loss of enjoyment of life and future mental anguish when such damages were sufficiently proven and awarding damages that were excessively low. Further, Kelley answered Skinner and USAA's appeal, arguing that should this court decide that Skinner and USAA are not liable for his damages, then his UM insurer, General, should be cast with the full amount of the judgment (amended pursuant to the arguments set forth in his appeal), as General was timely sued within the prescriptive period from the date of the accident.



Louisiana Civil Code Article 3492 provides that delictual actions are subject to a liberative prescription of one year, which commences to run from the day injury or damage is sustained. See also Raborn v. Albea, 2013-0633 (La.App. 1st Cir. 4/16/14), 144 So.3d 1066, 1070-1071, writ denied, 2014-1239 (La. 9/26/14), 149 So.3d 264. The objection of prescription may be raised by a peremptory exception. La. Code Civ. P. art. 927(A)(1). At the trial of a peremptory exception, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. La. Code Civ. P. art. 931 [2014 0180 La.App. 1 Cir. 6]. When prescription is raised by peremptory exception, with evidence being introduced at the hearing on the exception, the trial court's findings of fact on the issue of prescription are subject to the manifest error-clearly wrong standard of review. London Towne Condominium Homeowner's Ass'n v. London Towne Co., 2006-401 (La. 10/17/06), 939 So.2d 1227, 1231. Under the manifest error standard of review, a factual finding cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. Stobart v. State through Dept, of Transp. and Development, 617 So.2d 880, 882 (La. 1993). But, in a case involving no dispute regarding material facts--only the determination of a legal issue--a reviewing court must review the issue de novo, according the trial court's legal conclusions no deference. Cawley v. National Fire & Marine Ins. Co., 2010-2095 (La.App. 1st Cir. 5/6/11) 65 So.3d 235, 237.

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

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obligors. La, C.C. arts. 1799 and 3503. Generally, the burden of proving an action is prescribed lies with the party pleading prescription. Hogg v. Chevron USA, Inc., 2009-2632 (La. 7/6/10), 45 So.3d 991, 998. An exception to this general rule exists when the face of the petition shows that the cause of action is prescribed, in which case the burden shifts to the plaintiff to prove that prescription was interrupted or suspended. Bailey v. Khoury, 2004-0620 (La. 1/20/05), 891 So.2d 1268, 1275, Additionally, if the plaintiff's basis for claiming interruption of prescription is solidary liability between two or more parties, then the plaintiff bears the burden of proving that solidarity exists. Younger v. Marshall Industries, Inc., 618 So.2d 866, 869 (La. 1993).

[2014 0180 La.App. 1 Cir. 7] In this case, Kelley's supplemental and amended petition was filed more than one year after the accident. Thus, Kelley bore the burden of proving that prescription against Skinner and USAA was either interrupted or suspended. As to this issue, Kelley argues that a solidary relationship existed between Skinner and USAA such that the timely filed action against his UM carrier, General, interrupted prescription against all solidary obligors and/or joint tortfeasors.[6] In other words, Kelley claims that his timely filed suit against one debtor, in solido, General, interrupted prescription against all solidary obligors, i.e., Ms. Skinner, and thus, her liability insurer, USAA (with whom she was solidarily liable).[7] In support of his contention, Kelley relies on Hoefly vs Government Employees Ins. Co., 418 So.2d 575, 579 (La. 1982), wherein the Louisiana Supreme Court held that a timely filed lawsuit by an injured Victim and her husband against the tortfeasors interrupted prescription against the plaintiffs' UM carrier because the tortfeasors and the plaintiffs' UM carrier were solidarily liable pursuant to Louisiana Civil Code definition of solidary obligations for obligors. The current definition of solidary obligations for obligors is set forth in La C.C. art. 1794 and [2014 0180 La.App. 1 Cir. 8] provides that " [a]n obligation is solidary for the obligors when each obligor is liable for the whole performance" and when " [a] performance rendered by one of the solidary obligors relieves the others of liability toward the obligee." [8]

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On the other hand, Skinner and USAA contend, by relying on Fertitta v. Allstate Ins. Co., 462 So.2d 159 (La. 1985) and Rizer v. American Sur. and Fidelity Ins. Co., 95-1200 (La. 3/8/96), 669 So.2d 387, that there was no solidary liability between Skinner and General because a solidary obligation between General and Skinner would have arisen only if Kelley's damages exceeded the amount of Skinner's liability coverage under the USAA policy, and since Kelley's damages did not exceed the amount of liability coverage, the suit against Kelley's UM carrier, General, did not interrupt prescription as to Skinner and USAA.[9] We find no merit to this argument.

In Hoefly, Mrs. Hoefly was struck and injured by a car driven by Kim Lewiston, a minor. Approximately eleven months later, Mrs. Hoefly and her husband filed suit against the owner of the car (Neftali Rodriquez), Mrs. Margaret C. Lewiston (Kim Lewiston's mother), and Mrs. Lewiston's liability insurer, claiming that Mrs. Lewiston was negligent in allowing an unlicensed minor to drive. Hoefly, 418 So.2d at 576-577. Approximately three years later, the Hoeflys filed an amended and supplemental petition naming their UM carrier as defendant alleging that Ms. Rodriquez was uninsured and that Mrs. Lewiston was [2014 0180 La.App. 1 Cir. 9] underinsured. The UM carrier filed a peremptory exception raising the objection of prescription, claiming that the filing of suit against the tortfeasor and his liability insurer did not interrupt prescription against the UM carrier of the injured party. The trial court sustained the objection and the court of appeal affirmed. Hoefly, 418 So.2d at 577. However, the Louisiana Supreme Court disagreed and reversed. Hoefly, 418 So.2d at 577 and 580. In doing so, the court noted the definition of a solidary obligation for obligors and then analyzed the obligation presented and concluded that it satisfied the prerequisites for a solidary obligation. Hoefly, 418 So.2d at 578. In reaching this determination, the court reasoned that:

The tortfeasor and the [UM] carrier are obliged to the same thing. A tortfeasor is obliged to repair the damage that he has wrongfully caused to the innocent automobile accident victim. La.C.C. art. 2315. Subject to conditions not granted the tortfeasor, the uninsured motorist carrier is independently obliged to repair the same damage. By effect of the [UM] statute, La. R.S. 22:1406(D)(1)(a)[10], and its insuring agreement, the plaintiff's uninsured motorist carrier is required to pay, subject to statutory and policy conditions, amounts which they are entitled under other provisions of law to recover as damages from owners or operators of uninsured or underinsured motor vehicles. By effect of law and the terms of the insuring agreement, therefore, both the uninsured motorist carrier and the tortfeasor are obliged to the same thing. ...
The tortfeasor and the uninsured motorist carrier each may be compelled for the whole. The principal result of solidarity is to prevent the division of the

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debt and to obligate each debtor for the whole, as if he were alone. ... This essential element of solidarity, that each debtor may be compelled 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. ... That each debtor is held for the whole, [ i.e.], unable to plead the benefit of division, is solidarity's most direct consequence. ...

This requisite of solidarity is satisfied in the case of the uninsured motorist and the tortfeasor because neither may plead the benefit of [2014 0180 La.App. 1 Cir. 10');">0180 La.App. 1 Cir. 10] division, as if each were alone. To permit the tortfeasor or uninsured motorist carrier to plead the benefit of division would be inimical to the legislative aim of the uninsured motorist statute. The object of that legislation is to promote full recovery for damages by innocent automobile accident victims by making uninsured motorist coverage available for their benefit as primary protection when the tortfeasor is without insurance and as additional or excess coverage when he is inadequately insured. ... The statute is to be liberally construed to carry out this objective of providing reparation for those injured through no fault of their own. ...The legislation cannot be construed, therefore, to benefit the insurer and the tortfeasor by requiring the accident victim to divide his action between them.
The uninsured motorist carrier is obliged differently from the tortfeasor because its liability is conditioned by the tortfeasor's total or partial lack of liability insurance, the type of damage he has caused and any limits in the insurer's policy that are permitted by law. Contrary to [the UM carrier's] arguments, however, the terms and conditions which have been allowed the uninsured motorist carrier by law and by contract, while the tortfeasor is bound pure and simple, do not prevent the uninsured motorist carrier and the tortfeasor from being obliged to the same thing or being unable to plead the benefit of division. " The obligations may be in solido, although one of the debtors be obliged differently from the other to the payment of one and the same thing; for instance, if the one be but conditionally bound, whilst the engagement of the other is pure and simple, or if the one is allowed a term which is not granted to the other." La. C.C. art. 2092. ...
For similar reasons, the fact that the uninsured motorist carrier is bound by the combined effect of the tortfeasor's wrongful act, the uninsured motorist statute, and the carrier's delivery or issuance for delivery of automobile liability insurance, while the tortfeasor is obliged merely because of his delict does not prevent there being an obligation in solido on the part of the debtors. The obligation may be in solido even though the obligations of the obligors arise from separate acts or by different reasons. La.C.C. arts. 2091, 2092. ...
When payment is made by either the tortfeasor or the uninsured motorist carrier the other is exonerated toward the creditor as to the solidary obligation. This is a direct consequence of each debtor being obliged to the same thing so that each may be compelled for the whole, as if he were the sole debtor. ... Moreover, the underlying purpose of both delictual responsibility and uninsured motorist coverage is to promote and effectuate complete reparation, no more or no less. Accordingly, as to the debt to which the tortfeasor and uninsured motorist carrier are solidarily

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obliged, payment of it by one exonerates the other toward ...

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