Nutt v. Loomis Hydraulic Testing Co.

JAMES C. HILL, Circuit Judge,

dissenting.

Most respectfully, I dissent.

In my view, the majority finds, in the law, that the appellees who, in the premises, were guilty of 60 percent of the negligence causing death, should be credited, against the total damages, not only the 40 percent attributable to the plaintiff but also 40 percent of the remaining 60 percent which 'appellees ought to pay. I submit that this [is a bizarre result and, happily I find nothing in the law to compel such a result.

The decedent, Derouen, whose death brought on the total controversy, was the employee of Loomis Hydraulic Testing Company. The decedent was operating the .Loomis vessel. The Loomis vessel was in a - collision' with the Union vessel operated by Bobby R. Nutt. As a result of that collision, Derouen lost his life.

An action in the Louisiana state courts ,has determined the negligence attributable •to each vessel. Both vessels were at fault ¡and the fault of the Loomis vessel resulted solely and only from the negligent handling of that vessel by the decedent. As the ¡majority opinion observes, ante slip opinion at 1128, there was a cracked windshield on the Loomis vessel. That undesirable condition of the vessel has not been proffered as hor found to have been any cause of the incident. The only actionable negligence attributable to the Loomis vessel resulted from the negligence of its operator, Derouen, the decedent.

The Union Oil Company vessel was responsible for 60 percent of the negligence; the Loomis vessel was responsible for 40 percent of the negligence.

*1136Thus, in the wrongful death action, those having the right to recover for the death of Derouen had their full amount of damage ($145,000) reduced by 40 percent. Stated from the other point of view, Union received a contribution to the total amount of damages equal to 40 percent thereof because of the negligence of Derouen which was the negligence of the Loomis vessel.

Having received full credit due to it on account of the negligence chargeable to Loomis, Union has nevertheless brought this action against Loomis seeking a second bite at the apple. Asserting that the Loom-is vessel contributed 40 percent to the disaster, and ignoring that it had already received credit for that 40 percent, Union asks that Loomis share in even the 60 percent of the damages which Union has been required to pay. We must not overlook the fact that the wrongful death award against Union of $112,639.42 was no more than has been determined to be attributable to no party’s negligence except that of Union.1

The District Court, under the 50/50 Divided Damages Rule awarded Union judgment against Loomis for one-half of the $112,639.42. The majority concludes that 50/50 no longer applies but awards Union what I see as a windfall of 40 percent of the judgment based, once again, on the 40 percent negligence attributable to Loomis as the employer of the decedent. Thus, under our application of the law, Union which was 60 percent negligent in the tragedy will pay only 60 percent of the 60 percent total loss (36 percent); Loomis, because of the negligence of the decedent will pay 40 percent of 60 percent of the total loss (24 percent); and those entitled to recover for the death of Mr. Derouen will bear 40 percent of the total loss. When these figures are accumulated, it will be seen that as a direct result of Mr. Derouen’s 40 percent negligent conduct, those deriving their rights from or chargeable with his conduct will bear 64 percent of the loss and Union, chargeable with 60 percent of the negligence, will bear 36 percent of the total loss. Should it appear that the law requires this result, I should dutifully subscribe to it. However, the law does not require such a result.

I submit that the Court, has, in carefully considered opinions, established the correct rule of law to be applied in issues of this sort. The majority dismisses the cases of Loffland Brothers Company v. Roberts, 386 F.2d 540 (5th Cir. 1968) and Drewery v. Daspit Brothers Marine Divers, Inc., 317 F.2d 425 (5th Cir., 1963), as being of no precedential value because they arose out of factual situations distinguishable from those presently under consideration. Though the questions in those cases may have been framed differently, the legal principles applied to their solutions are the identical tools needed by us today for the work we have to do on the case at hand. Stated very briefly, the one controlling rule already announced by this Court in those cases is that where the principal claim made is for injuries to (or death of) an employee, and the award of damages in his favor has been reduced in proportion to the amount of his own negligence, the employee’s negligence may not be imputed to his employer for purposes of determining the existence of, or amount of, contribution owed by his employer.2

*1137This is such a case. It is true that Union was not solely negligent in the premises. It ought not be required, when all litigation has ended, to pay more than the proportion of total damages represented by its portion of the total negligence. The application of the comparative negligence test, in this case, has already seen to it that Union pays no more than its fair share of the total loss. There is no reason for contribution; contribution has been received in the reduction of the damages.

The rule painstakingly developed in Loff- ¡and will bring just and satisfying results no matter how the negligence be split up among the employee/plaintiff, his employer, and the defendant. Let us suppose that Derouen’s negligence was not the only negligence attributable to Loomis and that the total damage was a sum of $100,000.00. The percentages of actionable negligence can be determined by the jury. If, in this case, Derouen had been charged with 30 percent of the negligence; his employer, Loomis, with 10 percent not attributable to Derouen; and the defendant Union with 60 percent of the negligence, the contribution of each party to the satisfaction of the total damages would be a simple mathematical computation. The plaintiff, Derouen, would have the $100,000.00 total damages reduced 30 percent (because of his 30 percent negligence) and recover $70,000.00. That recovery would be against Union who would have a right over against Loomis for contribution. However, the negligence of Derouen would not be attributed to Loomis. Loomis would make contribution (as against the total damages) of 10 percent equalling $10,000.00. Thus, Union would wind up paying $60,000.00 equal to 60 percent of the total $100,000.00 in damages done. See Empire Seafoods, Inc. v. Anderson, 398 F.2d 204 (5th Cir. 1968), cert. denied 398 U.S. 983, 89 S.Ct. 449, 21 L.Ed.2d 444.

I believe that this makes sense and does justice.

One of the difficulties in arriving at a proper result in ca^es like the one under consideration is that we see, too often, only one or two trees and lose sight of the forest. Here, the state court action established the total damages and the negligence of the deceased employee. We are now viewing a case that seems to have started with Union as a judgment creditor bringing an action against Loomis a derivatively negligent vessel. There is yet other litigation likely in the future.

Under the law, actions for contribution and indemnity need not end with our present case. As the employee and servant of Loomis, the deceased Derouen, was obliged to exercise due care in performing his duties. For the breach of that responsibility he may be held liable to his employer. Inasmuch as the majority now holds that, as a proximate result of his negligence, his employer suffers liability in the amount of $56,319.71, it appears that his employer has a right of action over against him (or his estate) for that figure. Whether or not such actions are commonly brought is of no importance in defining the' rights of the parties. Such actions are not, however, so unusual.

The rule that an employer is entitled to recover for damages suffered by the tortious performance of the duties of an employee is the established law of Louisiana, in which jurisdiction this misfortune occurred. Brannan v. Hoel, 15 La.Ann. 308 (1860); Costa v. Yochim, 104 La. 170, 28 So. 992 (1900); Williams v. Marionneaux, 240 La. 713, 124 So.2d 919 (1960); Caldwell v. Montgomery Ward & Company, Inc. (La.App.), 271 So.2d 363 (1972).

This time-honored rule of law is generally embraced in maritime jurisprudence. See Horton v. Moore-McCormack Lines, Inc., 326 F.2d 104 (2d Cir. 1964); States S. S. Co. v. Rothschild International Steve. Co., 205 F.2d 253 (9th Cir. 1953); Hopson v. M/V Karl Grammerstorf, 330 F.Supp. 1260 (E.D.La.1971); States Steamship Company v. Howard, 180 F.Supp. 461 (D.C.Or.1960); but see Arico v. Cie. De Navegacion Transoceanique, 409 F.2d 1002 (2nd Cir. 1969); McLaughlin v. Trelleborgs Angfartygs A/B, 408 F.2d 1334 (2nd Cir. 1969); Johnson v. Partrederiet, 202 F.Supp. 859 (S.D.N.Y.1962). In Howard, supra, a maritime case, *1138Judge East observed “this [rule] merely follows the common-law rule that ‘a private employer, * * * has a common-law right of indemnity against an employee whose negligence has made the employer liable.’ ”

Thus, when cases of this sort have been finally wrung out, the 40 percent negligent injured (or killed) operator of one vessel will have his award reduced by 64 percent of its full value and the 60 percent negligent adverse vessel will be responsible for only 36 percent of the loss.

There is available to us the clear thinking of a Court before which the entire forest was laid out for viewing. In the very district from which the present appeal arises the Honorable Alvin B. Rubin had, for decision, the case of Shiver v. Burnside Terminal Company et al., 392 F.Supp. 1078 (E.D.La.1975). In this case all of the actions (for damages, for contribution, and indemnity— master against servant) were asserted. The servant, Shiver, brought action against the adverse vessel (under charter to Burnside) for personal injuries. Burnside thereupon, by third-party complaint, sought contribution from Shiver’s employer, Getco, the owner of the ship operated by Shiver. Get-co, asserting that if it were liable such liability was imposed upon it solely because of the failure of Shiver to have performed his duties with due care, brought a fourth-party complaint against Shiver to recover any amount for which Getco might be held liable to Burnside. When the District Court in that case arrived at the controlling rule, its task was 90 percent completed. Judge Rubin stated,

But Burnside may recover over against Getco only if it can establish some basis for recovery other than the simple imputation of Shiver’s negligence to Getco, his employer. This is true because the only damages Burnside has suffered are damages attributable to causes other than Shiver’s negligence; that element has already been deducted from the damages due Shiver.” (emphasis supplied)
392 F.Supp. at 1079.

Of course, the District Court in that case was looking prospectively. The apportionment of damages had not yet been made. So, Judge Rubin was required to determine whether or not there could be a successful indemnity action by Getco, the employer, against Shiver, its employee. He reasoned, correctly, I submit, that Burnside would have no claim against Getco unless Getco were found to have been negligent other than through the imputation of Shiver’s negligence to it. Therefore, he concluded, there would be no occasion for Getco to be found liable because of the failure of Shiver to have performed his duties carefully. Predicting the situation that presently confronts us, Judge Rubin observed that if Shiver were found, personally, to have been partly at fault, “ . . . the damages assessed would be reduced to take his fault into account.” Id. Thus, Burnside’s claim for contribution for negligence of Shiver would have been satisfied by that reduction. Denouncing the prospect of a recovery over by an employer against his employee in a case such as the one presently before us, the Shiver Court said, “ . . . to permit such a recovery would be twice to count his contributory negligence.” Id. The majority opinion in our case counts Derouen’s negligence twice. It has been used to reduce his survivors’ recovery, thus providing contribution to Union. Now, it is to be used to provide Union with further contribution from Loomis. If the majority be correct, Loomis has been held liable to pay a large sum of money because of the negligence of its employee in the performance of his duties and I can see no lawful prospect other than for this negligence to be used for the third time to provide indemnity in favor of Loomis against the estate of Derouen.

There is no reason for such a result. When the State proceeding ended, each negligent party had contributed a fair share to the total damage and there is no occasion presented for a contribution action at all.

Therefore, I respectfully dissent. I would reverse the judgment of the District Court and require the case to be dismissed.

. In the state trial court, it was determined that the total damages suffered by decedent were $145,000.00. This sum was reduced by 40 percent to reflect the comparative negligence of the decedent, yielding a sum of $87,000.00. The sum of $112,639.42 reflects the amount of interest and costs awarded to the decedent’s heirs as well as a sum of $1,000.00 plus interest and costs awarded to Loomis and a sum of $630.55 plus interest and costs awarded to The Home Insurance Co.

. While contribution is the relief sought in the instant case rather than contractual or tortious indemnity as was sought in the Drewery and Loffland cases, this distinction is of no consequence. The common issue, preliminary to the determination of whether or not a “right over” against the adverse party exists, is whether or not the negligence of an employee may be imputed to the employer, under the doctrine of respondeat superior, after being initially discounted in the employee’s personal injury case through application of the comparative negligence doctrine.