Opinion
Civil Action No. 04-997 Section: I/3.
May 9, 2005
ORDER AND REASONS
Before the Court are two motions for summary judgment filed on behalf of intervenors, Allstate Insurance Company ("Allstate") and State Farm Fire and Casualty Company ("State Farm"). The intervenors seek summary judgment declaring that they owe no coverage and are not obligated to defend their insureds, Dr. William Preau and Dr. Alan Parr, in a lawsuit brought against Drs. Preau and Parr, among others, by Kadlec Medical Center and Western Professional Insurance Company (collectively "Kadlec"). For the following reasons, intervenors' motions are GRANTED.
Rec. Doc. No. 53, intervenor Allstate's motion for summary judgment. Rec. Doc. No. 84, intervenor State Farm's motion for summary judgment.
Background
In the underlying lawsuit, Kadlec sued defendants, Lakeview Anesthesia Associates ("LAA"), Lakeview Medical Center, L.L.C., d/b/a Lakeview Regional Medical Center ("LRMC"), and Drs. William Preau, Allan Parr, Mark Dennis, and David Baldone, alleging claims for intentional misrepresentation, strict liability misrepresentation, negligent misrepresentation, and negligence. Kadlec's claims arise out of statements or omissions allegedly made or omitted by defendants in professional letters of referral for another physician. With respect to Dr. Parr, Kadlec asserts only a claim for negligence. As to Dr. Preau, Kadlec asserts a claim for negligence as well as claims for intentional misrepresentation, strict liability misrepresentation, and negligent misrepresentation.During the time span covered in plaintiffs' complaint, Allstate insured Dr. Parr under a Deluxe Homeowners Policy and a Personal Umbrella Policy. Similarly, State Farm insured Dr. Preau under a Homeowners Policy and a Personal Liability Umbrella Policy. While Allstate's and State Farm's motions involve different policies, the parties' arguments are substantially similar because the insurance policies at issue involve similar provisions. Both Allstate and State Farm argue that based on the allegations of Kadlec's complaint, they owe no coverage and that they have no duty to defend Drs. Parr and Preau under the policies at issue.
Rec. Doc. No. 53, exhibit 1, Deluxe Homeowners Policy, No. 011320106, and exhibit 2, Personal Umbrella Policy, No. 095790205.
Rec. Doc. No. 84, exhibit C, Homeowners Policy, No. 18-E1-3620-5. and exhibit D, Personal Liability Umbrella Policy, No. 18-BA-1319-1.
Intervenors contend that Kadlec's allegations against defendants include a conspiracy to conceal the impairment and unfitness to practice medicine of Dr. Robert Berry, another doctor in the insureds' anesthesiology practice. Therefore, intervenors argue that they have no duty to defend their insureds based on the provisions of the policies at issue because: 1) the policies require an "occurrence" to trigger coverage and there has been no occurrence, i.e. an "accident" as occurrence is defined in the policies; 2) the allegations made by Kadlec only involve intentional acts and the policies exclude coverage for intentional acts and/or omissions; and 3) the allegations made by Kadlec against Drs. Parr and Preau only involve business activities and the policies exclude coverage based on business pursuits.
Despite intervenors' arguments that plaintiffs have alleged a conspiracy and asserted only intentional torts, plaintiffs have asserted claims for negligence and negligent misrepresentation in addition to their intentional misrepresentation and strict responsibility misrepresentation claims. Perhaps most notably, plaintiffs have only asserted a negligence claim against Dr. Parr.
Kadlec's complaint alleges, inter alia, the following: Drs. Parr, Preau, Dennis, and Baldone are licensed physicians and shareholders of LAA. In January, 1997, LAA hired Dr. Berry as an anesthesiologist. Sometime in late 2000, LAA became aware that Dr. Berry was withdrawing narcotics medications from LRMC. On March 13, 2001, LAA became aware that Dr. Berry had a drug impairment problem and by letter dated March 27, 2001, LAA terminated Dr. Berry with cause due to his practicing medicine in an impaired state. In June, 2001, Drs. Dennis and Preau wrote letters of recommendation for Dr. Berry. Relying in part on those letters, Kadlec Medical Center hired Dr. Berry as an anesthesiologist. Then, Dr. Berry, while working at Kadlec and impaired by drug use, caused a patient to suffer extensive brain damage. Kadlec ultimately settled a medical malpractice lawsuit brought by the patient's family in the State of Washington for 7.5 million dollars.
See Rec. Doc. No. 1.
Analysis
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Once the moving party carries its burden of proving that there is no material factual dispute, the burden shifts to the nonmovant "to show that summary judgment should not lie." Hopper v. Frank, 16 F.3d 92, 96 (5th Cir. 1994). While the court must consider the evidence with all reasonable inferences in the light most favorable to the nonmovant, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986); Webb v. Cardiothoracic Surgery Associates of North Texas, 139 F.3d 532, 536 (5th Cir. 1998). This requires the nonmoving party to do "more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec., 475 U.S. at 586, 106 S. Ct. at 1356. The nonmoving party must "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986); Auguster v. Vermillion Parish School Board, 249 F.3d 400, 402 (5th Cir. 2001).An insurer's duty to defend an insured is broader than its duty to indemnify. Yount v. Maisano, 627 So. 2d 148, 153 (La. 1993). "The insurer's duty to defend suits brought against its insured is determined by the allegations of the injured plaintiff's [complaint], with the insurer being obligated to furnish a defense unless the [complaint] unambiguously excludes coverage." Id. (citing American Home Assurance Co. v. Czarniecki, 230 So. 2d 253 (La. 1969)). "[I]f, assuming all the allegations of the [complaint] to be true, there would be both (1) coverage under the policy and (2) liability to the plaintiff, the insurer must defend the insured regardless of the outcome of the suit. Additionally, the allegations of the [complaint] are liberally interpreted in determining whether they set forth grounds which bring the claim within the scope of the insurer's duty to defend the suit brought against its insured." Id. (citing Benoit v. Fuselier, 195 So. 2d 679 (La.App. 3d Cir. 1967)).
With respect to exclusions contained in an insurance policy, "[p]olicies should be construed to effect, not deny, coverage." Yount, 627 So. 2d at 151 (citing Breland v. Schilling, 550 So. 2d 609, 610 (La. 1989) and Borden, Inc. v. Howard Trucking Co., 454 So. 2d 1081 (La. 1984)). Any ambiguity in an insurance policy exclusion should be narrowly construed in favor of coverage. Id. (citing Great American Ins. Co. v. Gaspard, 608 So. 2d 981 (La. 1992)). Finally, "it is the insurer's burden to show that a loss falls within a policy exclusion." Louisiana Maintenance Servs., Inc. v. Certain Underwriters at Lloyd's of London, 616 So. 2d 1250, 1252 (La. 1993).
I. Dr. Parr's Allstate Insurance Policies
Dr. Parr's Deluxe Homeowners Policy contains the following exclusion:
12. We do not cover bodily injury or property damage arising out of the past or present business activities of an insured person.
The Deluxe Homeowners Policy in turn provides that "Business" is defined as: "a) any full or part-time activity of any kind engaged in for economic gain, including the use of any premises for such purposes."
Rec. Doc. No. 53, exhibit A.
Similarly, Dr. Parr's Personal Umbrella Policy states:
Coverage applies only to an occurrence arising out of: 1) personal activities of an insured. Activities related to any business or business property of an insured are not covered.
Rec. Doc. No. 53, exhibit B.
The Personal Umbrella Policy further provides that "Business — means any full or part-time activity of any kind engaged in for economic gain.
Rec. Doc. No. 53, exhibit B, pp. 2-4.
Allstate contends that it owes no coverage and that it has no duty to defend Dr. Parr because Kadlec's claim against Dr. Parr occurred and arose out of his business activities as an anesthesiologist and shareholder of LAA. Dr. Parr does not argue that the business exclusion is unclear or ambiguous. Rather, Dr. Parr argues that any alleged inaction on his part cannot be considered a business activity or arise out of a business activity because, despite plaintiffs' allegations, he had no duty to act.
Whether Dr. Parr is ultimately found liable for the negligence alleged is of no consequence to a resolution of Allstate's motion. Allstate's duty to defend depends on whether plaintiffs' alleged injuries, as articulated in the complaint, arise out of Dr. Parr's business pursuits. See Yount, 627 So. 2d at 153; Cassanova v. Marullo, 1996 WL 243555, *2 (E.D. La. May 9, 1996).
As explained above, Allstate's duty to defend arises from the allegations in Kadlec's complaint which the court must accept as true for the purpose of deciding whether Allstate has a duty to defend. See Yount, 627 So. 2d at 153. Kadlec's negligence claim against Dr. Parr is founded on an alleged duty to disclose which arises out of Dr. Parr's professional and ethical duties as a physician. Kadlec does not allege that Dr. Parr owed or breached any personal duty.
Dr. Parr suggests that this Court cannot conclude that Kadlec's claims fall within a business pursuits exclusion when a state court has already determined in a separate action that Dr. Parr's professional liability insurer owed no coverage under a professional services provision. Any alleged difference in determinations is not incompatible. The terms of Dr. Parr's professional liability insurance are not before this Court and most likely involve different provisions and definitions.
In Cassanova v. Marullo, the court found that the defendants' homeowners insurance policies did not provide coverage because of a business pursuits exclusion similar to the business exclusions in Dr. Parr's policies. Civ.A. No. 94-376, 1996 WL 243555, *2 (E.D. La. May 9, 1996). Dr. Parr seeks to distinguish Cassanova because, in that case, the insured "acted" in a manner that could be construed to be a business pursuit and, in this case, Dr. Parr did not act. See 1996 WL 243555, *1-*2. The Court finds Dr. Parr's distinction unpersuasive.
The Cassanova court's reasoning, and the Louisiana case law on which it relied, was that but for the profession of the insureds, they would not have been in a position to act as they did. Id. (citing Desormeaux v. Romero, 560 So. 2d 658 (La.App. 3d Cir. 1990); MVG v. Lucas, 590 So. 2d 1322 (la. App. 1st Cir. 1991); Jim Carey Distributing Co. v. Zinna, 589 So. 2d 526 (La.App. 1st Cir. 1991); Felder v. Despinasse, 564 So. 2d 1331 (La.App. 4th Cir. 1990); Riley v. McGee, 427 So. 2d 509 (La.App. 3d 1983)). While Kadlec's lawsuit alleges inaction or a failure to act on the part of Dr. Parr, the reasoning of the Cassanova court applies. But for Dr. Parr's employment as a physician and a shareholder in LAA with Dr. Berry, Kadlec's negligence claim against him would not exist because Dr. Parr would not have been in a position to disclose any information. Id.; see also Jim Carey Distributing Co. v. Zinna, 589 So. 2d 526, 528-29 (La.App. 1st Cir. 1991). Accordingly, the Court finds that Kadlec's claim against Dr. Parr arises out of his business activities and that both insurance policies exclude coverage.
Because there is no genuine issue of material fact with respect to whether the allegations against Dr. Parr arise solely out of his business activities, the Court finds that, as a matter of law, Allstate owes no coverage to and has no duty to defend Dr. Parr under the policies at issue.
Because the Court determines that Dr. Parr's acts (or inactions) are not covered under the terms of either insurance policy based on the business activities exclusions, it need not reach the issue of whether or not the intentional acts exclusion or the lack of an "occurrence" under the policies excuses Allstate from a duty to defend or coverage.
II. Dr. Preau's State Farm Insurance Policies
Throughout the period of time covered in Kadlec's complaint, State Farm insured Dr. Preau under two policies, a Homeowners Policy and a Personal Liability Umbrella Policy. The Homeowners Policy contains a business pursuits exclusion which states in part:
1. Coverage L [Personal Liability] and Coverage M [Medical Payments to Others] do not apply to:
b. bodily injury or property damage arising out of business pursuits of any insured or the rental or holding for rental or any part of any premises by any insured.
Rec. Doc. No. 84, exhibit C, Section II — Exclusions, p. 16. Section II(1)(b) of the Homeowners Policy includes certain exceptions to the business activities exclusion which are not applicable and have not been argued by the parties.
The Personal Liability Umbrella Policy contains a similar exclusion which provides that insurance will not be provided "for any loss caused by your [the insured's] business operations or arising out of business property. . . ."
Rec. Doc. No. 84, exhibit D, p. 4. The business activities exclusion in the Personal Liability Umbrella Policy contains certain exceptions which are not applicable and which have not been argued by the parties.
Dr. Preau argues that the business pursuit exclusions in his policies do not apply because his "decision to write a letter of recommendation was not necessarily a business decision." However, Kadlec's complaint alleges that Dr. Preau wrote a professional letter of recommendation falsely attesting to Dr. Berry's capabilities as an anesthesiologist. Kadlec also alleges that Dr. Preau violated his professional duties when he failed to disclose certain information.
Rec. Doc. No. 108, p. 6.
The allegations of the complaint are controlling for the purpose of determining State Farm's duty to defend. Whether Dr. Preau actually wrote the letter as a personal favor is not material to the resolution of State Farm's motion. See Cassanova, 1996 WL 243555, *2.
The allegations of Kadlec's complaint make clear that the acts or failure to act on the part of Dr. Preau arise out of his business activities as a physician and a shareholder in LAA. Because State Farm's duty to defend Dr. Preau is determined by the allegations of Kadlec's complaint, the Court finds that there is no genuine issue of material fact with respect to whether Dr. Preau was engaged in a business activity when he failed to disclose certain information and when he authored the letter of recommendation on Dr. Berry's behalf as plaintiffs allege. Accordingly, under the terms of both policies at issue, State Farm is not obligated to provide Dr. Preau with coverage or a defense.
Because the Court determines that Dr. Preau's acts are not covered under the terms of either insurance policy based on the business activities exclusions, it need not reach the issue of whether or not the intentional acts exclusion or the lack of an "occurrence" under the policies excuses State Farm from a duty to defend or coverage.
For the above and foregoing reasons,
IT IS ORDERED that Allstate Insurance Company's motion for summary judgment is GRANTED. IT IS FURTHER ORDERED that State Farm Fire and Casualty Company's motion for summary judgment is GRANTED. IT IS ORDERED, ADJUDGED, AND DECREED that no coverage and no duty to defend the defendant-insureds, Dr. Alan Parr and Dr. William J. Preau, III, exists on the part of the intervenors, Allstate Insurance Company and State Farm Fire and Casualty Company pursuant to the policies it issued their insureds.
ORDER AND REASONS
Before the Court is a motion filed on behalf of defendants, Lakeview Anesthesia Associates, Doctor Mark Dennis, Doctor William Preau, Doctor David Baldone, and Doctor Allan Parr, to dismiss plaintiffs' negligence and negligent misrepresentation claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, defendants' motion to dismiss is DENIED.Background
On April 8, 2004, plaintiff Kadlec Medical Center ("Kadlec") and its insurer, plaintiff Western Professional Insurance Company ("Western"), filed this action against Lakeview Anesthesia Associates ("LAA"), Dr. Dennis, Dr. Preau, Dr. Baldone, Dr. Parr, and Lakeview Medical Center, LLC, asserting claims for intentional misrepresentation, negligent misrepresentation, strict responsibility misrepresentation, and negligence. Plaintiffs' claims arise out of representations and/or omissions allegedly made or omitted by defendants in written employment references for Dr. Robert Lee Berry.Dr. Berry was a member of an anesthesia practice group with Drs. Dennis, Preau, Baldone, and Parr in Louisiana. Dr. Berry had staff privileges at Lakeview Medical Center between 2000 and 2001. Plaintiffs assert that during those years, Dr. Berry became involved in a prescription drug diversion scheme where he would personally use narcotic drugs purportedly withdrawn for patient use. Plaintiffs further assert that defendants became aware of Dr. Berry's drug use and that defendants knew Dr. Berry was practicing medicine while impaired. On March 27, 2001, LAA terminated Dr. Berry's employment "with cause."
Rec. Doc. No. 1. Defendant Lakeview Medical Center, LLC, d/b/a Lakeview Regional Medical Center ("LRMC"), is not a party to this motion to dismiss.
Plaintiffs have only asserted a negligence claim against Drs. Baldone and Parr. Plaintiffs assert all four claims against LAA, LRMC, and Drs. Dennis and Preau.
Rec. Doc. No. 1.
Rec. Doc. No. 1, exhibit A, termination letter. The termination letter, dated March 27, 2001, represents that Dr. Berry's termination was effective March 13, 2001. The letter states: "As we have discussed on several occasions, you have reported to work in an impaired physical, mental, and emotional state. Your impaired condition has prevented you from properly performing your duties and puts our patients at significant risk." Id.
After Dr. Berry was fired, he sought employment through Staff Care, Inc., a temporary employment agency for medical professionals. In November, 2001, Dr. Berry ultimately found work as an anesthesiologist at Kadlec Medical Center in Washington State. Then, on November 12, 2002, during a routine tubal ligation surgery, Dr. Berry allegedly caused a patient, Kim Jones, to suffer extensive brain damage by practicing medicine while under the influence of drugs. The patient has remained in a non-responsive, vegetative state since November 12, 2002. Ms. Jones's family brought a medical malpractice lawsuit (the "Jones' lawsuit") in Washington against Dr. Berry and Kadlec, as Dr. Berry's employer, which Kadlec settled for 7.5 million dollars.
Rec. Doc. No. 1, ¶ 22.
Rec. Doc. No. 1, ¶¶ 28-32.
Rec. Doc. No. 1, ¶ 31.
Plaintiffs allege that when defendants sent professional letters of reference on Dr. Berry's behalf, defendants intentionally and/or negligently misrepresented Dr. Berry's qualifications by failing to disclose information with respect to his adverse employment history. Defendants, LAA as well as Drs. Dennis, Preau, Baldone, and Parr, seek dismissal of plaintiffs' negligence and negligent misrepresentation claims because defendants contend that plaintiffs' lawsuit is nothing more than a claim for contribution and/or tort indemnity, which defendants maintain is not recognized in Louisiana or Washington.
Indemnity shifts an entire loss from a tortfeasor who is "only technically or constructively at fault" to the person primarily responsible, "while contribution apportions the loss among those jointly responsible." Mayo v. Benson Chevrolet Co., 717 So. 2d 1247, 1249 (La.App. 5th Cir. 1998).
Law and Analysis
A district court may not dismiss a complaint, or any part of it, for failure to state a claim upon which relief can be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). This Court will not look beyond the factual allegations in the pleadings to determine whether relief should be granted. See Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In assessing the complaint, a court must accept all well-pleaded facts in the complaint as true and liberally construe all factual allegations in the light most favorable to the plaintiff. Spivey, 197 F.3d at 774; Lowry v. Texas AM University System, 117 F.3d 242, 247 (5th Cir. 1997). "However, `[i]n order to avoid dismissal for failure to state a claim, a plaintiff must plead specific facts, not mere conclusory allegations. . . .'" Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992) (quoting Elliott v. Foufas, 867 F.2d 877, 881 (5th Cir. 1989)) (alteration in original). "`[C]onclusory allegations and unwarranted deductions of fact are not admitted as true' by a motion to dismiss." Id. (quoting Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir. 1994)). Moreover, "`legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.'" Blackburn, 42 F.3d at 931 (quoting Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993)). "[T]he complaint must contain either direct allegations on every material point necessary to sustain a recovery . . . or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial." Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995) (internal quotation and citation omitted).Defendants contend that Kadlec and Western are merely attempting to recover the monies paid to settle the Jones' lawsuit. Defendants characterize plaintiffs' action as a claim for contribution and tort indemnity which they maintain has been abolished in Louisiana. Defendants submit that in 1996, the Louisiana legislature amended art. 2324 of the Louisiana Civil Code to abolish solidary liability among non-intentional tortfeasors and to place Louisiana in a pure comparative fault system. See La. Civ. Code arts. 2323, 2324. Defendants detail Louisiana's developments in tort liability, discussing the seminal Louisiana Supreme Court case on the 1996 amendments to the Louisiana Civil Code, Dumas v. State, 828 So. 2d 530 (La. 2002). Defendants, however, misunderstand the Dumas court's discussion of tort liability and solidary obligations.
Defendants also argue that plaintiffs' negligence-based claims are barred under Washington law. Plaintiffs' claims have been pleaded under Louisiana law and neither party has provided any support for a determination that Washington law applies in this lawsuit. Accordingly, the Court examines plaintiffs' claims and defendants' motion under Louisiana law as pled.
Article 2323 of the Louisiana Civil Code provides:
A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person's insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.
B. The provisions of Paragraph A shall apply to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.
C. Notwithstanding the provisions of Paragraphs A and B, if a person suffers injury, death, or loss as a result partly of his own negligence and partly as a result of the fault of an intentional tortfeasor, his claim for recovery of damages shall not be reduced.
Article 2324 provides:
A. He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.
B. If liability is not solidary pursuant to Paragraph A, then liability for damages caused by two or more persons shall be a joint and divisible obligation. A joint tortfeasor shall not be liable for more than his degree of fault and shall not be solidarily liable with any other person for damages attributable to the fault of such other person, including the person suffering injury, death, or loss, regardless of such other person's insolvency, ability to pay, degree of fault, immunity by statute or otherwise, including but not limited to immunity as provided in R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable.
In Dumas, the Louisiana Supreme Court decided a wrongful death and survival action brought by the family of a bicyclist who died after hitting a pothole in a Louisiana state park and striking his head on the pavement. 828 So. 2d at 531. The bicyclist died while being treated at the hospital when his head injuries were complicated due to malpractice. Id. Based on the 1996 amendments to Louisiana Civil Code arts. 2323 and 2324(B), the Dumas court held that an initial tortfeasor may present evidence of a subsequent tortfeasor's act, e.g. subsequent malpractice, as an affirmative defense to liability. Id. The Dumas court found that Louisiana's 1996 tort reform, which eliminated solidary liability for non-intentional tortfeasors, effected an additional change — a tortfeasor would no longer need to seek contribution or indemnity for another tortfeasor's portion of the plaintiff's damages because tortfeasors would only be held responsible for their percentage of fault even if other defendants were not parties to the lawsuit. Id. at 538. The Dumas court did not hold that Louisiana had entirely eliminated tort indemnity and contribution.
The Dumas court did not address contractual contribution and indemnity. Likewise, "[t]he Louisiana Supreme Court did not hold that the right to seek indemnification among alleged co-tortfeasors disappeared, just the right of contribution." Campo v. John Fayard Fast Freight, Inc., 02-3690, 2003 WL 22229300 (E.D. La. Sept. 26, 2003).
As defendants recognize, Kadlec settled the Jones' lawsuit "for its own acts of negligence." Kadlec and its insurer now seek damages for defendants' alleged negligent misrepresentation and negligence in referring Dr. Berry to Kadlec without disclosing his prior adverse employment history. In order to find that plaintiffs' claims are barred by the effects of Louisiana's abolition of solidary liability, plaintiffs and defendants would have to be joint or concurrent tortfeasors with respect to Ms. Jones. That is, plaintiffs would have to be seeking contribution from defendants solely for defendants' fault with respect to the injuries sustained by Ms. Jones at Kadlec Medical Center. However, plaintiffs seek recovery not for the defendants' role as a tortfeasor in the Jones' lawsuit, but for the defendants' alleged breach of independent duties owed plaintiffs, e.g., the duty not to communicate misleading, incomplete, or incorrect information to plaintiffs.
Rec. Doc. No. 36, memorandum in support of 12(b) (6) motion to dismiss for failure to state a claim upon which relief can be granted, p. 3. Kadlec emphasizes that it actually responded to the Jones' lawsuit based on its legal responsibility under Washington law as Dr. Berry's employer. Rec. Doc. No. 1, ¶ 34.
Notwithstanding the fact that plaintiffs quantify their damages in a way which resembles the amount paid to settle the Jones' lawsuit plus costs, plaintiffs' damages are alleged to be the monetary losses to plaintiffs arising from defendants' acts of negligence and negligent misrepresentations. As plead, plaintiffs' negligence-based causes of action against defendants are based on the defendants' independent acts directed at plaintiffs.
The Court cannot find as a matter of law that Kadlec's and Western's negligence-based claims are actually claims for reimbursement, contribution, or indemnity. Defendants have not provided the Court any legal authority for their theory that plaintiffs' allegations of negligent misrepresentation and negligence are contribution claims in disguise.
Plaintiffs allege that they suffered financial losses caused by the defendants' negligent misrepresentations and negligent acts. At this stage in the litigation, it cannot be said that plaintiffs' negligence-based claims against the defendants are actually and exclusively indemnity or contribution claims that have been abolished in Louisiana.
Accordingly,
IT IS ORDERED that defendants' motion to dismiss plaintiffs' negligence and negligent misrepresentation claims is DENIED.