Cole v. Mississippi River Bridge Authority

462 So. 2d 1314, 1985 La. App. LEXIS 8168
CourtLouisiana Court of Appeal
DecidedJanuary 14, 1985
DocketNos. 84-CA-223, 84-CA-224
StatusPublished
Cited by3 cases

This text of 462 So. 2d 1314 (Cole v. Mississippi River Bridge Authority) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cole v. Mississippi River Bridge Authority, 462 So. 2d 1314, 1985 La. App. LEXIS 8168 (La. Ct. App. 1985).

Opinion

DUFRESNE, Judge.

These consolidated suits arise from a wrongful death claim. Leonard Cole, plaintiff in case number 84-CA-223, appeals from the granting of summary judgments dismissing his suit as to all defendants. (The second consolidated case, number 84-CA-224, was dismissed by joint motion after settlement and compromise. No appeal has been made in that case.)

Plaintiff’s wife, Lalita Cole, died of injuries suffered in an accident that occurred on October 2, 1979 on the Greater New Orleans Mississippi River Bridge. Mrs. Cole was driving her automobile westbound on the bridge when an automobile driven by Joseph E. Metzler, Jr., who was heading east, crossed over the center emergency lane and collided head-on with Mrs. Cole’s vehicle. Mrs. Cole’s car was then struck from the rear by the vehicle following immediately behind her on the bridge, an automobile owned by Linda M. Miller and being operated by James R. Bright. Mrs. Cole died a few hours later of the injuries received in the accident.

On January 24, 1980, Leonard Cole settled his claim against Mr. Metzler and Metzler’s insurer, State Farm Insurance Company, for $10,000.00, the policy limits. Cole signed a standard form release that did not contain any reservation of his rights against joint tort-feasors.

On October 2, 1980, Leonard Cole filed a wrongful death and survivorship action, individually and on behalf of Lalita Cole’s minor child, Devin Sears Cole. Made de[1316]*1316fendants were the State of Louisiana, Department of Transportation and Development [DOTD]; the Mississippi River Bridge Authority [MRBA]; David C. Treen, then-governor of the state; Modjeski & Masters, an engineering partnership; James R. Bright; Linda M. Miller; and all their respective insurers. By supplemental and amending petition, deLaureal Engineers, Inc., was added as a defendant.

The petitions alleged negligence in design and construction of the bridge against DOTD, MRBA, Modjeski & Masters and deLaureal Engineers; failure properly to patrol the bridge and to meet safety standards against DOTD and MRBA; and negligence in operating his automobile against Bright. Miller was sued as owner of the vehicle driven by Bright. In addition, MRBA was alleged to be Bright's employer and therefore responsible for his negligence under the theory of respondeat superior. Governor Treen was alleged to have been negligent in administration of highway safety programs.

Various of the defendants filed third-party demands for contribution and indemnification against one another. MRBA and its insurer, Southern American Insurance Company, also filed a third-party demand against Metzler and State Farm, as did deLaureal Engineers. Metzler and State Farm responded with a motion for summary judgment on the third-party demands against them, seeking to be dismissed on the ground they had been released by plaintiff Leonard Cole and therefore the other defendants had no claim against them.

Thereafter MRBA and Southern American filed a motion for summary judgment on the ground that the release of one joint tort-feasor with no reservation of rights as to the other tort-feasors results in a release of all tort-feasors. Defendants Miller and Bright filed a similar motion for summary judgment, as did Modjeski & Masters and deLaureal Engineers.

On November 5, 1982 the district court granted summary judgment in favor of MRBA and Southern American, and Miller and Bright. The claim of Leonard Cole only was dismissed, because the claim of the minor child, Devin Sears Cole, was not included in Leonard Cole’s release of Metz-ler and State Farm. (Cole had not been properly appointed tutor for the child when he signed the release.) The judgment also dismissed the third-party demands against Metzler and State Farm. Leonard Cole’s motion for rehearing on the summary judgment was denied.

On December 22, 1982 summary judgment was rendered in favor of Modjeski & Masters; on January 31, 1983 summary judgment was rendered in favor of deLau-real Engineers, Inc. These judgments also were as to the claim of Leonard Cole only. Cole has appealed all three judgments.

In the Reasons for Judgment attached to the November 5 judgment, the district court cited Louisiana Civil Code article 2203 and Dodge v. Central Louisiana Electric Company, 257 So.2d 802 (La.App. 3 Cir.1972), stating that the release of one solidary obligor without reservation of the right to claim from another discharges all solidary obligors from liability.

On appeal, Leonard Cole asserts the trial judge erred because the defendants were not solidary obligors with Metzler. Further, Cole contends, a determination of soli-dary liability depends upon a finding of concurring fault, a factual issue inappropriate for determination by summary judgment. He states the inferences to be drawn from the pleadings and the deposition in the record do not establish conclusively a joint tort-feasor relationship between Metzler and the other defendants.

LSA-C.C. art. 2203 states,

“The remission or conventional discharge in favor of one of the codebtors in solido, discharges all the others, unless the creditor has expressly reserved his right against the latter. * * * ”

The Dodge case, supra, cited by the trial judge, held that “the release of one soli-dary obligor, without reservation of the right to claim from another, discharges all solidary obligors from liability. * * 4 ” 257 So.2d 802, 806.. LSA-C.C. art. 2324 states, in pertinent part,

[1317]*1317“Persons whose concurring fault has caused injury, death or loss to another are also answerable, in solido; * *

In order to determine whether the defendants here were solidary obligors with Joseph Metzler, and thus released by Leonard Cole’s failure to reserve his rights against them, the court was required to decide that Metzler himself was at fault. Otherwise there could be no concurring fault between Metzler and the defendants.

Thus, for purposes of this motion, plaintiff was placed in the peculiar situation of absolving Metzler from fault; in contrast, defendants had to show him to have been negligent.

The only information presented on the motions for summary judgment relevant to Metzler’s fault were the allegations made in Leonard Cole’s pleadings and the deposition testimony of Metzler. There was no police testimony or copy of the accident report, nor was there deposition testimony or interrogatory answers by the defendant Bright, nor was there information available from any other persons who might have known relevant facts.

Cole’s petition simply alleged that the accident that resulted in the death of Lalita Cole was caused when “a third vehicle traveling in the opposite direction crossed over the emergency lane on the bridge and struck the vehicle driven by decedent, * * ” after which Mrs. Cole’s vehicle was then struck from the rear by the automobile driven by Bright.

In his deposition, Mr. Metzler stated he was on his way to work on the morning of the accident. He had undergone dental surgery the preceding evening and had been given a prescription for a painkiller. The dentist who prescribed it told him he would be able to work while taking it, but said nothing about any effects it might have on him. Metzler did not recall seeing any information about the medication printed on the bottle, other than as to how often to take it.

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Bluebook (online)
462 So. 2d 1314, 1985 La. App. LEXIS 8168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cole-v-mississippi-river-bridge-authority-lactapp-1985.