STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CW 05-285 consolidated with CW 05-304, CW 05-330, CW 05-365, CW 05-369, CW 05-374, CW 05-376, CW 05-401, CW 05-406, CW 05-407, CW 05-1011, CW 05-1044, CW 05-1057
DERRY LABORDE, ET AL VERSUS KIRBY M. PECOT, ET AL
***CONSOLIDATED WITH***
KENYAWN AUGUSTINE, ET AL VERSUS NEW HORIZON KIDS QUEST, IV, INC., ET AL
KENYAWN AUGUSTINE, ET AL VERSUS KIRBY M. PECOT, ET AL
LOUIS AND JENNIFER BLALOCK, ET AL VERSUS NEW HORIZON KIDS QUEST, IV, INC., ET AL
**********
ON WRIT OF REVIEW FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES NOS. 2002-3740, 2002-3996, 2002-3997, 2002-3998 HONORABLE WILLIAM BENNETT, DISTRICT JUDGE
AS REMANDED BY THE SUPREME COURT OF LOUISIANA
********** MARC T. AMY JUDGE **********
BEFORE THE COURT EN BANC: Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, John D. Saunders, Oswald A. Decuir, Jimmie C. Peters, Marc T. Amy, Michael G. Sullivan, Glenn B. Gremillion, Elizabeth A. Pickett, Billy H. Ezell, J. David Painter, and James T. Genovese, Judges.
WRIT DENIED. REMANDED. Raymond L. Brown, Jr. Lottie L. Bash Gold, Weems, Bruser, Sues & Rundell, APLC Post Office Box 6118 Alexandria, LA 71037-6118 (318) 445-6471 COUNSEL FOR: Gremillion Corrugated, LLC
Steven Claude Judice Chad Sullivan Keogh, Cox & Wilson, Ltd. Post Office Box 1151 Baton Rouge, LA 70821 (225) 383-3796 COUNSEL FOR: Larry Stockwell Heating & AirConditioning Federated Mutual Insurance Company
David J. Schexnaydre Wade Dillard Rankin Edward J. Lassus, Jr. Mary E. Lord Pajares & Schexnaydre, LLC 103 Northpark Boulevard, Suite 110 Covington, LA 70433 (985) 292-2000 COUNSEL FOR: Fulcrum Insurance Company
Ralph R. Alexis, III Porteous, Hainkel & Johnson, LLP 704 Carondelet Street New Orleans, LA 70130 (504) 581-3838 COUNSEL FOR: Coastal Air Balance, Inc.
Harry E. Forst 639 Loyola Avenue, Suite 1830 New Orleans, LA 70113 (504) 525-0070 COUNSEL FOR: Coastal Air Balance, Inc.
2 Christopher T. Grace, III 3421 North Causeway Boulevard, 9th Floor Metairie, LA 70002 (504) 831-4091 COUNSEL FOR: Coastal Air Balance, Inc.
William B. Baggett Wells T. Watson Baggett, McCall, Burgess, Watson & Gaughan Post Office Drawer 7820 Lake Charles, LA 70606-7820 (337) 478-8888 COUNSEL FOR: Louis Blalock, et al Derry Laborde, et al Kenyawn Augustine, et al
Eugene A. Ledet, Jr. Rivers, Beck, Dalrymple & Ledet Post Office Drawer 12850 Alexandria, LA 71315-2850 (318) 445-6581 COUNSEL FOR: Louis Blalock, et al Derry Laborde, et al Kenyawn Augustine, et al
Triston Kane Knoll Jerold Edward Knoll Jr. Esq. The Knoll Law Firm Post Office Box 426 Marksville, LA 71351 (318) 253-6200 COUNSEL FOR: Louis Blalock, et al Derry Laborde, et al Kenyawn Augustine, et al
Terrence L. Brennan Keith J. Bergeron Deutsch, Kerrigan & Stiles, LLP 755 Magazine Street New Orleans, LA 70130-3672 (504) 581-5141 COUNSEL FOR: Atrium Vinyl Products
3 Richard D. Chappuis, Jr. Kristen Broussard Menard Hoai T. Hoang Voorhies & Labbe´ Post Office Box 3527 Lafayette, LA 70502 (337) 232-9700 COUNSEL FOR: Kirby M. Pecot, d/b/a Pecot & Co. Architects Design Professional Ins. Co.
Simone Chachere Dupre Voorhies & Labbe´ Post Office Box 3527 Lafayette, LA 70502-3527 (337) 232-9700 COUNSEL FOR: Kirby M. Pecot
Dominic Joseph Gianna Michael Otis Waguespack Alan Dean Weinberger Middleberg, Riddle, & Gianna 201 St. Charles Avenue, 31st Floor New Orleans, LA 70170-3100 (504) 525-7200 COUNSEL FOR: The Trane Company
Lawrence J. Duplass Claire A. Breaux Andrew D. Weinstock Duplass, Zwain, Bourgeois & Morton, APLC 3838 N.Causeway Boulevard, Suite 2900 Metairie, LA 70002 (504) 832-3700 COUNSEL FOR: The Trane Company
Whitney A. Klein Christopher Carton McCarter & English Post Office Box 652 Newark, NJ 07101-0652 (973) 622-4444 COUNSEL FOR: The Trane Company
4 Gary M. Zwain Kevin R. Derham Duplass, Zwain, Bourgeois & Morton, APLC 3838 N.Causeway Boulevard, Suite 2900 Metairie, LA 70002 (504) 832-3700 COUNSEL FOR: Jefferson Sprinkler Company, Inc.
Jerry J. Falgoust Dauzat, Falgoust, Caviness and Bienvenu Post Office Box 1450 Opelousas, LA 70571-1450 (337) 942-5811 COUNSEL FOR: D. W. Fire Stopping, Inc.
Ronald J. Fiorenza Provosty, Sadler, deLaunay, Fiorenza & Sobel, APC Post Office Box 1791 Alexandria, LA 71309-1791 (318) 445-3631 COUNSEL FOR: Alvarez Donnoway-Passons, Inc.
John P. Doggett Zebulon M. Winstead Provosty, Sadler, deLaunay, Fiorenza & Sobel, APC Post Office Box 1791 Alexandria, LA 71309-1791 (318) 445-3631 COUNSEL FOR: Dixie Roofing and Sheet Metal Company, Inc. Century Insurance Group Colony Insurance Company
R. Joshua Koch, Jr. Spyridon, Koch, Palermo & Dornan, LLC 3838 N.Causeway, Suite 3010 Metairie, LA 70002 (504) 830-7800 COUNSEL FOR: Tunica-Biloxi Indians Paragon Casino Resort
5 Rachelle Deckert Dick Forrester, Jordan & Dick, LLC 7809 Jefferson Hwy, Suite G Baton Rouge, LA 70809 (225) 928-5400 COUNSEL FOR: Tunica-Biloxi Indians of Louisiana Paragon Casino Resort
Milton O'Neal Walsh Walsh & Bailey Post Office Box 3157 Baton Rouge, LA 70821-3157 (225) 383-8649 COUNSEL FOR: Security Insurance Company of Hartford
William L. Melancon Dawn M. Fuqua Joseph T. Puhekker Melancon & Associates, LLC 900 South College Road, Suite 300 Lafayette, LA 70503 (337) 233-8600 COUNSEL FOR: Security Insurance Co. of Hartford M & E Consulting, Inc.
Leigh Haynie Joseph Joy & Associates Post Office Box 4929 Lafayette, LA 70502 (337) 232-8123 COUNSEL FOR: M & E Consulting, Inc. Security Insurance Company of Hartford
Gary Paul Kraus Richard Joseph Petre, Jr. Onebane Law Firm Post Office Box 3507 Lafayette, LA 70502-3507 (337) 237-2660 COUNSEL FOR: Security Insurance Company of Hartford Gunn Electric Company, Inc.
6 Michael P. Maraist Onebane Law Firm Post Office Box 3507 Lafayette, LA 70502-3507 (337) 237-2660 COUNSEL FOR: Gunn Electric Company, Inc.
Thomas Edward Loehn Charles K. Chauvin Boggs, Loehn & Rodrigue 1010 Common Street, Suite 2400 New Orleans, LA 70112 (504) 523-7090 COUNSEL FOR: Design Tex Group
DeWitt T. Methvin, Jr. Post Office Box 1871 Alexandria, LA 71309 (318) 448-1632 COUNSEL FOR: State Farm Insurance Company
Larry A. Stewart Stafford, Stewart & Potter Post Office Box 1711 Alexandria, LA 71301 (318) 487-4910 COUNSEL FOR: Liberty Mutual Insurance Co. F. L. Crane & Sons, Inc.
Charmagne A. Padua Jay M. Lonero Larzelere Picou Wells Simpson Lonero, LLC 3850 N. Causeway Boulevard, Suite1100 Metairie, LA 70002 (504) 834-6500 COUNSEL FOR: TIG Insurance Company
Rodney M. Rabalais Rabalais & Roy Post Office Box 447 Marksville, LA 71351 (318) 253-4622 COUNSEL FOR: Tunica Biloxi Construction Co.
7 Patrick J. Hanna Rabalais, Hanna & Hebert 701 Robley Drive, Suite 210 Lafayette, LA 70503 (337) 981-0309 COUNSEL FOR: Tunica Biloxi Construction Co.
Charles A. Schutte, Jr. Guglielmo, Marks, Schutte, Terhoeve & Love 320 Somerulos Street Baton Rouge, LA 70802 (225) 387-6966 COUNSEL FOR: Signlite, Inc.
Robert A. Vosbein Adams and Reese, LLP 701 Poydras Street, Suite 4500 New Orleans, LA 70139 (504) 581-3234 COUNSEL FOR: Continental Casualty Company
John B. Davis Adams and Reese, LLP 450 Laurel Street, Suite 1900 Baton Rouge, LA 70801-1900 (504) 336-5200 COUNSEL FOR: Continental Casualty Company
David A. Hurlburt George D. Ernest, III Hurlburt, Privat & Monrose, APLC Post Office Drawer 4407 Lafayette, LA 70502-4407 (337) 237-0261 COUNSEL FOR: Berg, Inc.
Lourdes Estevez Martinez Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, ALC 601 Poydras Street, Suite 2775 New Orleans, LA 70130-6027 (504) 568-1990 COUNSEL FOR: Travelers Indemnity Company
8 James H. Gibson Allen & Gooch Post Office Box 3768 Lafayette, LA 70502-3768 (337) 291-1300 COUNSEL FOR: New Horizon Kids Quest, Inc.
Matthew J. Ungarino Ungarino & Eckert, LLC 315 South College Road, Suite 239 Lafayette, LA 70503 (337) 235-5656 COUNSEL FOR: Specialty Surplus Insurance Company
David I. Bordelon Ungarino & Eckert, LLC 3909 Plaza Tower Drive Baton Rouge, LA 70816 (225) 292-2000 COUNSEL FOR: Specialty Surplus Insurance Company
Ray F. Lucas, III 315 South College Road, Suite 239 Lafayette, LA 70503 (337) 235-5625 COUNSEL FOR: Specialty Surplus Insurance Company
David K. Nelson George T. Hawthorne Jeffrey N. Boudreaux Kean, Miller, Hawthorne, D’Armond, McCowan & Jarman, LLP Post Office Box 3513 Baton Rouge, LA 70821 (225) 387-0999 COUNSEL FOR: Custom Metal and Siding Dwayne Whatley
Roy M. Mosley CNA Environmental & Mass Tort 3 Embarcadero Center, 12th Floor San Francisco, CA 94111 (415) 440-3102 COUNSEL FOR: CNA Insurance Company
9 Richard G. Duplantier, Jr. Stephen J. Moore Michael D. Lonegrass Galloway, Johnson, Tompkins, Burr & Smith 701 Poydras Street, Suite 4040 New Orleans, LA 70139-1200 (504) 525-6802 COUNSEL FOR: CNA Insurance Company McElroy Metal, Inc.
D. Patrick Daniel, Jr. P. O. Drawer 80827 Lafayette, LA 70598-0827 (337) 232-3333 COUNSEL FOR: McElroy Metal, Inc.
Mark R. Pharr, III Galloway, Johnson, Tompkins, Burr & Smith 4021 Ambassador Caffery, Suite 175 Lafayette, LA 70503 (337) 735-1760 COUNSEL FOR: McElroy Metal, Inc.
David P. Salley Glen E. Mercer Salley, Hite, Rivera & Mercer 365 Canal Street, Suite 1710 New Orleans, LA 70130 (504) 566-8800 COUNSEL FOR: Zurich American Insurance Company
Christopher S. Hardy Penny & Hardy, APLC Post Office Box 2187 Lafayette, LA 70502-2187 (337) 231-1955 COUNSEL FOR: Republic Vanguard Insurance Company
10 Keith C. Armstrong Scott C. Barney Chaffe McCall, LLP 8550 United Plaza Boulevard, Suite 202 Baton Rouge, LA 70809 (225) 992-4300 COUNSEL FOR: Senergy, Inc.
Bonita K. Preuett-Armour Armour Law Firm, LLC Post Office Box 710 Alexandria, LA 71309 (318) 442-6611 COUNSEL FOR: G. W. Moreau Metal Buildings Glen Moreau State Farm Insurance Company
Richard T. Musgrave Musgrave, McLachlan & Penn, LLC 1515 Poydras Street, Suite 2380 New Orleans, LA 70112 (504) 799-4300 COUNSEL FOR: Western World Insurance Company JES, Inc.
S. Aaron Siebeneicher Johnson & Siebeneicher Post Office Box 648 Alexandria, LA 71309 (318) 484-3911 COUNSEL FOR: Western World Insurance Company JES, Inc.
Michael D. Rubenstein Kenneth T. Wallace Liskow & Lewis, APLC 701 Poydras Street, Suite 5000 New Orleans, LA 70139-5099 (504) 581-7979 COUNSEL FOR: Sellers & Josephson, Inc.
11 John T. Walsh Lathrop & Gage, L.C. 10 S. Broadway, Suite 1300 St. Louis, MO 63102 (504) 581-7979 COUNSEL FOR: Sellers & Josephson, Inc.
12 AMY, Judge.
The defendants filed applications for supervisory writs with this court after the
trial court denied their exceptions of no right of action and various other exceptions.
This court granted the writs, noting both that La.R.S. 22:655 does not provide for
direct action in state court against the insurer of a party claiming sovereign immunity
and that the Tunica-Biloxi Indian Tribe is an indispensable party to the state court
matter as previously held in Bonnette v. Tunica-Biloxi Indians d/b/a Paragon Casino
Resort, 02-919 (La.App. 3 Cir. 5/28/03), 873 So.2d 1. The Louisiana Supreme Court
denied in part and granted in part the plaintiffs’ related writ application and remanded
the matter for reconsideration of the question of indispensability. For the following
reasons, we deny the defendants’ writ applications and remand for further
proceedings.
Factual and Procedural Background
This matter stems from the construction of a hotel at the Paragon Casino Resort
in Marksville, Louisiana. Paragon is allegedly owned and operated by the Tunica-
Biloxi Tribe of Louisiana. The general contractor for the Paragon construction
project was Tunica-Biloxi Construction Company. Adjacent to the hotel, Paragon
housed a daycare center owned and operated by New Horizon Kids Quest, IV, Inc.
In 2002, former employees and customers of Paragon and New Horizon brought suit
against the Tribe, New Horizon, and subcontractors involved in the construction of
Paragon’s North Tower Hotel. The plaintiffs alleged that toxic mold developed
shortly after the hotel’s opening, causing them injury. The Tribe filed an exception
of subject matter jurisdiction based on sovereign immunity. The non-Tribe
defendants also filed exceptions, contending that the Tribe was an indispensable party1 to the suit. The trial court granted the exceptions. The decision was affirmed
by a panel of this court in Bonnette v. Tunica-Biloxi Indians d/b/a Paragon Casino
Resort, 02-919 (La.App. 3 Cir. 5/28/03), 873 So.2d 1.
The matter is again before this court as the present four matters were filed
while Bonnette, 873 So.2d 1, was pending. These suits involve the same plaintiffs
and defendants, as well as additional plaintiffs and defendants. However, the Tribe’s
insurer, TIG Insurance Company, was named as a defendant rather than the Tribe in
three of the suits. The plaintiffs named neither TIG nor the Tribe in the fourth matter.
The defendants filed numerous exceptions in the first three matters, including
no right of action, lack of indispensable party and related exceptions such as res
judicata and lis pendens. After this court issued Bonnette, finding the Tribe to be an
indispensable party and affirming the dismissal of the suits involved therein, the trial
court conducted a hearing involving the four new lawsuits and took the matters under
advisement. The trial court ultimately denied the defendants’ exceptions of no right
of action and lack of indispensable party, as well as the remaining exceptions.
On writs of review, this court reversed the trial court’s denial of the exceptions
of no right of action and lack of indispensable party, dismissing the plaintiffs’ claims
as follows:
The trial court erred in denying the exceptions of no right of action and failure to join an indispensable party. Louisiana Revised Statute 22:655 does not provide for direct action in state court against the insurer of a party claiming sovereign immunity. Additionally, the Tunica-Biloxi Indian Tribe is an indispensable party to the litigation in state court. Bonnette v. Tunica-Biloxi Indians d/b/a Paragon Casino Resort, 02-919 (La.App. 3 Cir. 5/28/03), 873 So.2d 1. Accordingly, the
1 We recognize that Louisiana Code of Civil Procedure Articles 641 and 642, as amended in 1995, no longer classify parties as “necessary” or “indispensable.” Instead, the articles consider “joinder” of a party. See also La.Code Civ.P. art. 927. However, the filings in this matter continue to frame the question as one of indispensability, a term that is particularly descriptive here due to the question of whether dismissal is appropriate.
2 trial court’s ruling is hereby reversed and set aside, and plaintiffs’ claims against the defendant are hereby dismissed.
See Laborde v. Pecot, unpublished writ opinions rendered June 29, 2005 bearing
docket numbers 05-285, 05-304, 05-330, 05-365, 05-369, 05-374, 05-376, 05-379,
05-381, 05-384, 05-401, 05-406, and 05-407. See also Laborde v. Pecot, unpublished
writ opinions rendered January 5, 2006 and bearing docket numbers 05-986, 05-1011,
05-1017, 05-1044, 05-1052, 05-1057, 05-1072, 05-1090.
The plaintiffs applied for writs to the Louisiana Supreme Court. The supreme
court denied in part and granted in part the application and explained:
Denied in part, granted in part. There is no error in that portion of the court of appeal’s ruling dismissing the Tribe’s insurer(s). See La. R.S. 22:655(B). However, with respect to the defendants other than the Tribe’s insurer(s), the case is remanded to the court of appeal for reconsideration of the applicable factors under La.Code Civ. P. art. 641 in light of La. Civ. Code arts. 2323 and 2324, as interpreted in Dumas v. State, 02-0563 (La. 10/15/02), 828 So.2d 530.
See Laborde v. Pecot, 05-2254 (La. 3/17/06), 925 So.2d 522; Laborde v. Pecot, 06-
0290 (La. 3/17/06), 925 So.2d 523. Thus, the matter arrives at this court for further
consideration in light of the supreme court’s instructions.2
Discussion
The defendants each offer their own opposition to the trial court’s denial of the
exceptions. In sum, the question before the court, at this point, is whether the Tribe
is a necessary party pursuant to La.Code Civ.P. art. 641, and, if so, whether Article
642 requires dismissal of the action against the remaining defendants in light of the
breadth of La.Code Civ.P. arts. 2323 and 2324.
2 We have not considered arguments outside of the supreme court’s specific remand instructions.
3 The plain wording of La.Code Civ.P. arts. 641 and 642 indicates that, in certain
circumstances, dismissal of an action against remaining defendants may be
appropriate if a necessary party cannot be joined. The articles provide:
Art. 641. Joinder of parties needed for just adjudication
A person shall be joined as a party in the action when either:
(1) In his absence complete relief cannot be accorded among those already parties.
(2) He claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either:
(a) As a practical matter, impair or impede his ability to protect that interest.
(b) Leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations.
Art. 642. Determination by court whenever joinder not feasible
If a person described in Article 641 cannot be made a party, the court shall determine whether the action should proceed among the parties before it, or should be dismissed. The factors to be considered by the court include:
(1) To what extent a judgment rendered in the person’s absence might be prejudicial to him or those already present.
(2) The extent to which the prejudice can be lessened or avoided by protective provisions in the judgment, by the shaping of relief, or by other measures.
(3) Whether a judgment rendered in the person’s absence will be adequate.
(4) Whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.
In Bonnette, 873 So.2d 1, this court worked through the analysis required by these
articles. The conditions of Article 641 were found to be satisfied, as the Tribe could
not be joined due to its immunity in state court and, thus, relief would be limited to
4 the fault apportioned, if any, between the remaining defendants. The court also noted
that the Tribe’s absence would impair its ability to protect its interest and,
furthermore, that, should the matter be pursued in tribal court, the parties risked the
possibility of multiple or inconsistent obligations. Finding the Tribe necessary under
the criteria of Article 641, the panel turned to Article 642 and found that
circumstances warranted dismissal due to the considerations of Paragraphs (3) and
(4).
The possibility of dismissal through application of La.Code Civ.P. arts. 641
and 642, and as found applicable in Bonnette, appear to be in high tension with
La.Civ.Code arts. 2323 and 2324, which provide:
Art. 2323. Comparative fault
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.
Art. 2324. Liability as solidary or joint and divisible obligation
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.
5 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.
C. Interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors.
In Dumas v. State ex rel. Department of Culture, Recreation & Tourism, 02-
0563 (La. 10/15/02), 828 So.2d 530, the supreme court considered a case in which the
family of a man who died following a bicycle accident brought a wrongful death and
survival action against the State, alleging that the bicycle accident was caused by a
roadway defect. In an amended answer, the State alleged that the medical negligence
of the hospital where the victim was treated was the sole cause of his death. The
plaintiffs filed a motion to strike the amended answer and asserted that the allegations
of any subsequent negligence were immaterial and irrelevant and arguing that the
original tortfeasor was the legal cause of any injury arising from subsequent medical
treatment. The trial court granted the motion to strike. The first circuit affirmed. The
supreme court granted the State’s writ application and reversed the granting of the
motion to strike in light of Articles 2323 and 2324. The court explained:
Article 2323 provides that “[i]n any action for damages . . ., the degree of 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 . . . . The [foregoing] provisions . . . shall apply to any claim . . . asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.” (Emphasis added.) Thus, this article clearly requires that the fault of every person responsible for a plaintiff’s injuries be compared, whether or not they are parties, regardless of the legal theory of liability asserted against each person.
6 Likewise, the language of Article 2324(B) is equally clear. It provides that, in non-intentional cases, liability for damages caused by two or more persons shall be a joint and divisible obligation. Each 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 that other person. This provision abolishes solidarity among non-intentional tortfeasors, and makes each non-intentional tortfeasor liable only for his own share of the fault, which must be quantified pursuant to Article 2323.
In this case, the State alleges that a portion of the damages sought by plaintiffs was caused by medical malpractice on the part of the health care provider treating Mr. Dumas for the injuries he sustained in the bicycle accident. Pursuant to Article 2323, the fault of both the State and the allegedly negligent health care providers should be determined notwithstanding the fact that the health care providers are nonparties. Under Article 2324(B), if a jury determines that both the State and the health care providers negligently injured Mr. Dumas and plaintiffs, then the liability between them will be a joint and divisible obligation, they will not be solidarily liable, and each joint tortfeasor will be liable only for his portion of fault. The comparative fault article La.C.C. art. 2323, makes no exceptions for liability based on medical malpractice; on the contrary, it clearly applies to any claim asserted under any theory of liability, regardless of the basis of liability. There is no conflict between either Article 2323 or Article 2324(B) and the Medical Malpractice Act that could be fairly classified as “absurd.” Accordingly, we find the clear language of Articles 2323 and 2324(B), applied as written, leads to the inescapable conclusion that the State in this case must be allowed to put on evidence related to the health care provider’s alleged fault as part of its defense. While we recognize that these articles, which substantially impede the ability of an injured party to obtain full recovery of his damages, are in derogation of established rights and are to be strictly construed, Touchard, 617 So.2d at 892, we simply cannot construe their unmistakably clear language in a contrary manner without overstepping our role as jurists.
Id. at 537-38 (footnotes omitted).
While Dumas addressed the apparent expansiveness of Articles 2323 and 2324,
it did not address the apparent conflict between the dismissal of the case anticipated
by Article 642 and Article 2323’s requirement of apportionment of fault between all
actors. Neither did Dumas involve the question of an actor who is beyond the
jurisdiction of the court due to sovereign immunity. This case involves all of these
elements and presents the challenge of interpreting these seemingly conflicting
7 articles in light of one another. See La.Civ.Code art. 13, which instructs that: “Laws
on the same subject matter must be interpreted in reference to each other.” Moreover,
as noted in Dumas, 828 So.2d 530, the judiciary may not disregard the public policy
decisions on which legislation is based, nor may it reweigh the balance of interests
and policies previously struck by the legislature.
The parties’ submissions indicate that, since Bonnette however, the
circumstances surrounding this case have changed. Recall that, in Bonnette, the court
explained that the Tribe was a necessary party due, in part, to the risk of multiple or
inconsistent obligations stemming from the possibility of a proceeding in tribal court.
Subsequently, in a related matter in the United States District Court for the Western
District of Louisiana, the trial court determined that the land on which the hotel was
constructed was not Indian Country until after construction. See Tunica-Biloxi
Indians of Louisiana v. Pecot, 351 F. Supp. 2d 519 (W.D. La. 2004). Thus, the
possibility of tribal court proceedings related to activities during that time period has
been eliminated as has the risk of multiple or inconsistent verdicts/obligations
stemming from these ancillary proceedings.
This case now requires a different analysis than that employed in Bonnette as
the crucial element of the possibility of tribal court proceedings has been eliminated
from the analysis required by La.Code Civ.P. art. 641. Further, when we examine
Article 642(4) in light of this development, it is apparent that there is no longer the
possibility that the plaintiffs “will have an adequate remedy if the action is dismissed
for nonjoinder.” Rather, with this element eliminated, Article 642(3), which asks
“[w]hether a judgment rendered in the person’s absence will be adequate[,]” becomes
central to the analysis. Articles 2323 and 2324 indicate that the legislature has
positively identified a verdict comparatively assessing the fault of all actors as
8 adequate. In the present iteration of this lawsuit, Article 642 no longer requires
dismissal of this action against the remaining defendants. The trial court did not err
in denying the defendants’ exceptions.
We also note that there are defendants remaining who contend that their
involvement in this matter stems from injury incurred on tribal property and did not
arise until after the construction of the hotel and, therefore, their involvement is
outside the scope of Pecot, 351 F. Supp. 2d 519. However, we find no error in the
denial of the exceptions of these defendants. Rather, the filings before us do not
indicate that further proceedings are likely, or even possible, against these defendants
in another forum. In this respect, these defendants have not met their burden of
proving entitlement to dismissal under Articles 641 and 642.
DECREE
For the foregoing reasons, the writ applications are denied. Costs of this
proceeding are assessed to the relators. The matter is remanded to the trial court for
further proceedings.
WRIT DENIED. REMANDED.