United States Court of Appeals,
Fifth Circuit.
No. 94-40307.
Nathan Joseph CORMIER, Jr., et al., Plaintiffs-Appellants,
v.
CLEMCO SERVICES CORP., et al., Defendants.
PAULI & GRIFFIN CO., Defendant-Appellee,
v.
AETNA CASUALTY & SURETY CO., Intervenor Plaintiff-Appellant.
March 29, 1995.
Appeals from the United States District Court for the Western
District of Louisiana.
Before REYNALDO G. GARZA, GARWOOD and DAVIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Nathan Cormier appeals the district court's dismissal as time
barred of his Louisiana tort action against the manufacturer of an
allegedly defective item of equipment. We agree with at least one
of Cormier's arguments and vacate and remand.
I.
Nathan Cormier was employed by Meaux Services, Inc. (MSI) as
a sandblaster and painter. In April 1990, MSI sent Cormier to work
on an offshore platform owned by Pennzoil Exploration and
Production Company (Pennzoil). On April 16, Cormier was injured
when his sandblasting hose unexpectedly switched itself on,
blasting him in the leg with a burst of sand. Cormier alleges that
this accident was caused by a malfunctioning "deadman," the device
at the nozzle end of a sandblasting hose that controls the sand
1
flow. When Cormier's attorney tried through a number of informal
means to locate the deadman, he was told by MSI that the deadman
was lost. However, MSI's representatives informed him that the
deadman had been manufactured by a company called Clemco.
MSI's insurer, Aetna Casualty and Surety Company (Aetna),
promptly began to pay Cormier workers' compensation benefits under
the Longshore and Harbor Workers' Compensation Act (LHWCA), 33
U.S.C. § 901 et seq. On February 20, 1991, Cormier filed suit
against, inter alia, Clemco Industries Corporation and Clemco
Services Corporation (collectively "Clemco"). On April 9, 1991,
Aetna intervened as MSI's workers' compensation insurer, claiming
a right to reimbursement out of any award Cormier received. At the
time of its intervention, Aetna was still paying benefits to
Cormier.
In May, 1991, Clemco served a subpoena on MSI demanding
production of the deadman. Evidently aided by this more formal
discovery request, MSI was able to find the hitherto lost deadman.
To the surprise of all parties, the deadman that MSI produced was
not manufactured by Clemco, but by Pauli & Griffin Company (P & G).
On December 6, 1991, Cormier added P & G as a defendant.1
P & G argued that, under La.Civ.Code Ann. art. 3492, Cormier's
cause of action against P & G was prescribed because it had not
been brought within one year of Cormier's injury. Although the
district court denied P & G's pretrial motion for summary judgment,
1
The district court granted summary judgment in favor of
Clemco on December 5, 1991. This Court affirmed summary judgment
in Cormier v. Clemco, 969 F.2d 1559 (5th Cir.1992) (per curiam).
2
the court later dismissed Cormier's complaint as prescribed.
Cormier now appeals the dismissal of his complaint against P & G.
II.
Because Cormier's injury occurred while he was working on the
Outer Continental Shelf off the coast of Louisiana, Cormier's case
is governed by the Outer Continental Shelf Lands Act (OCSLA). 43
U.S.C. § 1331 et seq. Under the OCSLA, Cormier is covered by the
workers' compensation scheme established in the LHWCA and by
Louisiana's tort law. 43 U.S.C. § 1333. As noted above,
Louisiana's one year prescriptive period applies to Cormier's tort
claim against P & G. This period is interrupted when an obligor is
sued by a claimant, La.Civ.Code Ann. art. 3462, or when the obligor
acknowledges liability to the claimant, La.Civ.Code Ann. art. 3464.
When prescription is interrupted for one solidary obligor, it is
interrupted for all solidary obligors. La.Civ.Code Ann. arts. 1799
and 3503.
Cormier argues that Aetna, as the workers' compensation
insurer, and P & G, as the third-party tortfeasor, are solidary
obligors under Louisiana law. Cormier further argues that Aetna
acknowledged Cormier's right to recompense by paying workers'
compensation benefits. Cormier contends that this acknowledgement
interrupted prescription against all solidary obligors, including
P & G. Cormier maintains that because his suit against P & G was
filed within one year of the date of Aetna's payment, his suit is
timely.
A. Aetna and P & G as Solidary Obligors
3
Under Louisiana law, a workers' compensation insurer and a
third-party tortfeasor are solidary obligors to an injured
employee. See Williams v. Sewerage & Water Bd. of New Orleans, 611
So.2d 1383 (La.1993). In Williams, the Louisiana Supreme Court
held that an employer and a third-party tortfeasor are solidary
obligors to an employee hurt on the job and explicitly overruled
Maryland v. Fabco, 438 So.2d 1152 (La.App. 1st Cir.1983), which
decided that a workers' compensation insurer and a third-party
tortfeasor are not solidary obligors. P & G contends that a 1987
amendment to La.Civ.Code Ann. art. 2324, post-dating the cause of
action in Williams, changed the relationship from solidary to joint
obligation. P & G relies upon the portion of art. 2324 which
reads:
[L]iability for damages caused by two or more persons shall be
a joint, divisible obligation, and a joint tortfeasor shall
not be solidarily liable with any other person for damages
attributable to the fault of such other person ... regardless
of such other person's ... immunity by statute.
P & G maintains that this language eliminated solidary liability
between third-party tortfeasors and statutorily immune employers.
P & G misunderstands amended art. 2324. Art. 2324 defines
only the relationship between joint tortfeasors—those who are
jointly liable because they are jointly at fault. However, a
workers' compensation insurer is solidarily liable with a
third-party tortfeasor not because they both caused the same
damage, but because they are both obligated to repair the same
damage. See Williams, 611 So.2d at 1387-88 (though employer is
liable under workers' compensation law and third-party tortfeasor
4
is liable in tort, both are solidary obligors because both must
compensate same injury). See also La.Civ.Code Ann. arts. 1794,
1797 and 1798. Therefore, the narrowing of solidary liability
between joint tortfeasors does not encompass the solidary liability
that arises in Cormier's case. Thus, as to the solidary
relationship between P & G and Aetna toward Cormier, art. 2324 does
not govern.2
In addition, art. 2324 was amended again in 1988 to provide
that "[i]nterruption of prescription against one joint tortfeasor,
whether the obligation is considered joint and divisible or
solidary, is effective against all joint tortfeasors." La.Civ.Code
Ann. art. 2324-C. This 1988 amendment insured that the newly
altered relationship between joint tortfeasors was still subject to
the traditional rule on interruption. P & G's argument that art.
2324-C does not apply because Cormier's employer is not a joint
tortfeasor borders on sophistry. Either Cormier's employer (and
thus, Aetna) is subject to art. 2324 or it is not.
Consequentially, even if art. 2324 changed the relationship between
Aetna and P & G to one of joint liability, Aetna's acknowledgment
would still interrupt prescription as to P & G.
B. Payment of Compensation Benefits as Acknowledgement
In a case almost identical to Cormier's, the Eastern District
of Louisiana held that an employer's voluntary payment of workers'
2
In the event that Cormier eventually receives a judgment,
we do not address the effect that MSI's proportion of fault may
have on Aetna's recovery of benefits it paid under the LHWCA.
See Gauthier v. O'Brien, 618 So.2d 825 (La.1993).
5
compensation benefits interrupted prescription against a
third-party tortfeasor. Billizon v. Conoco Inc., 864 F.Supp. 571
(E.D.La.1994) Like Cormier, Billizon was injured on a platform off
the Louisiana shore and received workers' compensation payments
from his employer under the LHWCA. More than a year after his
injury, Billizon filed suit against a third-party tortfeasor.
Billizon argued that his employer's payment of workers'
compensation had interrupted prescription against the third-party
tortfeasor.
The district court agreed. The court first held that under
Williams, Billizon's employer and the third-party tortfeasor were
solidarily liable. The court next decided that by voluntarily
paying workers' compensation, the employer had " "perform[ed] acts
of reparation or indemnity, [made] an unconditional offer or
payment, or [lulled] the creditor into believing that [the
employer] will not contest liability,' " and thus tacitly
acknowledged Billizon's right to recovery. Id. at 574 (quoting
Lima v. Schmidt, 595 So.2d 624, 634 (La.1992)). The court reasoned
that:
the consequences in law of an employer who has been sued for
workers' compensation do not conceptually differ, then, from
those resulting from an employer's voluntary payment of
compensation benefits in response to an administrative
request. On the contrary, the law should favor such payments,
and should not inspire lawsuits simply as a model to interrupt
prescription.
Id.
The Billizon Court recognized that its decision would allow an
injured employee to file suit against a tortfeasor within one year
6
of the employer's last compensation payment, even if that payment
occurred many years after the injury. However, the court explained
that:
[t]he Louisiana Supreme Court has specifically stated that the
common law doctrine of laches does not apply in Louisiana and
that prescription periods are the province of the legislature.
Picone v. Lyons, 601 So.2d 1375, 1377 (La.1992). In that
case, the high court held that interruption of prescription
against all solidary obligors is rationally related to the
state's interest in providing full recovery for tort victims.
Id. at 575.
For several reasons, P & G maintains that Billizon was
wrongly decided. P & G first argues that Aetna's compensation
payments did not acknowledge Aetna's liability for all of Cormier's
damages, but only acknowledged liability for the amount of each
payment as it came due. However, as the Billizon Court correctly
explained, "the liability for workers' compensation is a unitary
obligation for an indeterminate amount, which the law directs shall
be made in a series of regular payments." See 864 F.Supp. at 574-
75. Thus, Aetna's payments constituted acknowledgement of, and
interrupted prescription on, the unitary obligation.
P & G also argues that Aetna's voluntary payments should not
interrupt prescription against P & G because of Aetna's position as
a subrogee of Cormier. P & G contends that, by interrupting
prescription of Cormier's claim, Aetna also preserved its own
opportunity to be reimbursed out of Cormier's recovery. P & G
asserts that this constitutes a conflict of interest between Aetna
and itself and argues that Aetna's acknowledgement should not
interrupt prescription against P & G in such circumstances.
7
However, the benefit that a workers' compensation carrier may
ultimately gain from an employee's suit against a third-party
tortfeasor is far too uncertain and remote to regard the
compensation carrier's payment of benefits as a self-serving act
designed to preserve its recovery rights. More importantly,
nothing in Louisiana law, including the Louisiana Supreme Court's
decision in Williams, suggests that acknowledgment by one solidary
obligor interrupts prescription against other solidary obligors
only when their interests are perfectly aligned.
P & G next asserts that, under Louisiana law, payment of
workers' compensation benefits is not an admission of liability,
citing La.Rev.Stat.Ann. § 23:1204. But Aetna did not make its
payments under the Louisiana workers' compensation program covered
by § 23:1204; Aetna paid under the LHWCA. Thus § 23:1204 has no
application in this case.
We essentially agree with the Billizon Court's sound
analysis. Accordingly, we agree that an insurance carrier which
voluntarily pays workers' compensation benefits under the LHWCA
acknowledges the employee's right to these benefits and interrupts
prescription against all solidary obligors.
C. Extent of Interruption
P & G argues finally that, even if Aetna's payments
interrupted prescription against P & G, interruption was only
effective for an amount equal to the extent of the solidary
obligation. While this may have been the law at one time, see
Anderson v. Sciambra, 310 So.2d 128, 131 (La.App. 4th Cir.1975), it
8
is no longer the rule after Williams. As Williams emphasized, once
prescription is interrupted for all solidary obligors, "plaintiffs
are free to assert whatever claims they have against the
defendants." 611 So.2d at 1384-85. To hold otherwise would
contravene Louisiana's stated interest in providing tort victims
with a full recovery. See Lyons, 601 So.2d at 1377. We conclude
that Aetna's acknowledgment interrupted prescription on all of
Cormier's claims against P & G.
III.
Because Aetna's payment of LHWCA benefits interrupted
prescription against P & G, we do not reach Cormier's arguments
that the prescriptive period was interrupted by Aetna's
intervention or suspended under the equitable doctrine of contra
non valentum.
The district court's dismissal of Cormier's suit against P &
G is VACATED and the case REMANDED for further proceedings.
9