Opinion
No: 97-3713
May 12, 2000
ORDER AND REASONS
Before the Court is the motion of third-party defendants John Osborne, Ozterity Lighting, Clare Graham and Monty House, to dismiss Branam's third- party claims against them pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, third-party defendants' motion is granted.
I. Background
This case arises out of an accident in which Lora Osgood was killed while rehearsing a bungee jump to be performed at the half time show at Superbowl XXXI, in the Louisiana Superdome. Lora's husband, Scott Osgood, and Lora's sister, Wendy Plunkett, were co-participants in the show and came upon the scene immediately after Lora's death. On December 1, 1997, they sued defendants in this Court, seeking damages for loss of consortium and mental anguish. This case involves numerous defendants, including various contractors, subcontractors and insurers.
On December 27, 1999, plaintiffs settled with Select Production, Inc., one of the primary defendants in this case. Select was a main producer of the half-time show and contracted with various entities, including Branam. As a result of both the dismissal of Select through settlement and of information Branam obtained through discovery, on January 18, 2000, Branam filed a third-party demand in order to add the remaining independent contractors also responsible for producing the show. Branam alleged that in the event of a judgment against it in favor of plaintiffs, it was
entitled to full indemnity over and against all cross defendants and third party defendants, jointly, severally and in solido for the full amount of any judgment rendered herein, or alternatively to contribution of a virile share of any judgment rendered herein according to the percentages of fault of negligence found to exist against each cross defendant and/or third party defendant in the respects set forth above.
(Branam's Third Party Demand, 14.) Plaintiffs have not asserted any claims against third-party defendants.
In addition, in its answer to plaintiffs' second amended complaint, Branam specifically denied any negligence or fault on its part, but plead in the alternative that
in the event that any negligence or fault is found to have existed on the part of Branam Enterprises, Inc., which is specifically denied, then it is averred that . . .Monty House as co-producer, Clare Graham, as art director, . . . [and] John Ozborne [sic] and/or Ozterity Lighting . . . were solely and independently the proximate cause of any accident or injury which befell plaintiffs on the night in question[.]
(Branam's Answer to Pls.' Second Amended Complaint, 5.)
These third-party defendants now move to dismiss Branam's claims against them, on the grounds that after the 1996 amendments to the Louisiana Civil Code, there is no right to contribution or tort indemnity under Louisiana Civil Code articles 2323 and 2324. Branam opposes this motion, asserting that if it is found to be responsible for the entire bungee jumping performance ( i.e., if it is cast as "turn-key" contractor for the act), it may maintain its third-party demand against movants.
II. Discussion A. 12(b)(6) Standard
Under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all well-pleaded factual allegations in the complaint and view them in the light most favorable to the plaintiff. See Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996); American Waste Pollution Control Co. v. Browning- Ferris, Inc., 949 F.2d 1384, 1386 (5th Cir. 1991). The Court may not dismiss a claim unless it appears certain that the claimant cannot prove any set of facts in support of its claim that would entitle it to relief. See Home Capital Collateral, Inc. v. Federal Deposit Ins. Corp., 96 F.3d 760, 764 (5th Cir. 1996).
B. 1996 Amendments to LA. Civ. CODE arts. 2323 and 2324 and Brana.m's Third- Party Demand
Movants herein assert that with the 1996 amendments to the Louisiana Civil Code, Louisiana has adopted pure comparative fault, in which no party can be held liable for more than its share of the damages, and that therefore Branam cannot assert a valid claim for contribution or indemnity against them. Louisiana Civil Code article 2323, as amended in 1996, and effective April 16, 1996, states that in any tort action for damages, the degree of fault of all parties causing the injury must be determined, regardless of the law or legal theory under which the action is brought. It provides in pertinent part:
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.
LA. CIV. CODE art. 2323 (West 2000), emphasis added. Article 2324, also amended in 1996, and effective April 16, 1996, provides that only a party who conspires with another to commit a willful or intentional act shall be solidarily liable for damages. It states in relevant part:
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 decree 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.
LA. Civ. CODE art. 2324 (West 2000), emphasis added. Thus, articles 2323 and 2324 have effectively eliminated contribution and indemnity except in those tort cases in which the act causing the injury was willful or intentional. See Aucoin v. State of La. through DOTD, 712 So.2d 62, 67 (La. 1998) (holding that 1996 amendments adopted pure comparative fault). Accordingly, if any of the defendants are held liable for Lora Osgood's death, the degree of fault and measure of damages attributable to each- person at fault must be assessed, regardless of whether that person is a party in this case or has the ability to pay. See Keith v. United States Fidelity Guaranty Co., 694 So.2d 180, 182-83 (La. 1997)
Because in this case, no one has alleged willful or intentional acts on the part of Branam or third-party defendants, these parties cannot be solidarily liable to plaintiffs.
[S]ince solidarity is arguably dead in nonintentional tort cases, contribution is of little or no importance. That is, the right to contribution arose only where one party paid more than its share because of the imposition of a solidary obligation. Now, one should never pay more than one's share because there is no more solidarity in nonintentional tort cases.
Legal commentators have noted, however, that it is unlikely that the 1996 amendments destroyed solidary tort liability in situations in which an employer is vicariously liable for the acts of its employee. See FRANK L. MARAIST THOMAS C. GALLIGAN, JR., BURYING CAESAR: CIVIL JUSTICE REFORM AND THE CHANGING FACE OF LOUISIANA TORT LAW, 71 TUL. L. REV. 339, 404 (1996).
MARAIST GALLIGAN, 71 TUL. L. REV, at 409. Rather, in order to assess fault, the jury will be required to determine the allegedly responsible parties' respective duties to decedent. For instance, it may find that Branam is partially at fault because it breached a duty to supervise and/or train the people performing the act, and it may find that third-party defendants (whether or not they remain parties to the case) are partially at fault because they breached a duty to provide lighting and technical equipment in a non-negligent manner. It follows that, as required by article 2324, each person's fault will be assessed, and no one person will be held liable for more than his share. Accordingly, Branam will suffer no prejudice.
The 1996 amendments also obviated the need for indemnity in tort cases, other than in those cases involving strict liability.
[T]he doctrine of tort indemnity is more or less a dead letter. This is not just because of Act Three but because of Act One. Tort indemnity arose where one party was strictly liable and another party's fault had created the risk which made the strictly liable defendant liable. The strictly liable defendant would be indemnified by the risk creator. Without strict liability, there will be little or no tort indemnity.Id., emphasis added, footnotes omitted. Nowhere in its pleadings does Branam assert that it is strictly liable for the actions of third-party defendants. This is not a situation involving vicarious or constructive liability. Third- party defendants' conduct will not automatically trigger liability on Branam's fault without a showing of fault. Rather, in order to find that Branam is liable to plaintiffs, the jury will have to determine that Branam is at fault because it breached a duty which contributed to or caused the accident. Therefore, Branam has not asserted a viable claim against third-party defendants, and its third-party demand must be dismissed under Rule 12(b)(6).
III. Conclusion
For the reasons stated above, third-party defendants' motion to dismiss is granted.