Lumbermens Mutual Casualty Co. v. Younger

158 So. 2d 341, 1963 La. App. LEXIS 2089
CourtLouisiana Court of Appeal
DecidedDecember 3, 1963
DocketNo. 989
StatusPublished
Cited by5 cases

This text of 158 So. 2d 341 (Lumbermens Mutual Casualty Co. v. Younger) 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
Lumbermens Mutual Casualty Co. v. Younger, 158 So. 2d 341, 1963 La. App. LEXIS 2089 (La. Ct. App. 1963).

Opinion

TATE, Judge.

These proceedings are a sequel to our decision in Younger v. Bonin et al., La.App., 149 So.2d 452. We there held a tortfeasor and her liability insurer liable in the total amount of some seventeen thousand dollars for injuries caused to a minor child; but we limited the amount of the principal sum for which the insurer (“Lumbermens”) was held liable to the five thousand dollars of its policy limits.

The present controversy concerns the liability of Lumbermens for legal interest under the judgment in Younger v. Bonin— whether the principal amount upon which Lumbermens is liable for legal interest is its policy limits, or whether instead Lum-bermens is liable for legal interest upon the total amount of the judgment.

The present defendant, Younger, appeals from adverse judgment decreeing Lumber-mens to be liable for interest only upon the smaller amount of its policy limits.

This controversy arose when, after finality of the judgment in Younger v. Bonin, the plaintiff therein (Younger) refused to accept the tender made by Lumbermens, the insurer, of the principal amount ($5,000) for which it was cast, together with accrued interest thereon only. Younger refused because of his contention that interest was due by this insurer, not just upon the policy limits ($5,000), but also on the entire award ($17,000 plus), by reason both of the Lum-bermens policy and also because of the specific wording of our decree in Younger v. Bonin.

Lumbermens thereupon instituted the present proceedings, which are in the nature of an action for declaratory judgment to determine its liability for legal interest under the judgment in Younger v. Bonin.

[342]*342Concentrating upon the main thrust of Lumbermens’s action — and omitting reference to ancillary relief demanded, as well as to various procedural contentions which it is not necessary to decide in view of the result we reach on the merits — , the substance of the action is as follows:

Lumbermens unconditionally deposited into the court register the principal amount of $5,000 for which it was cast, together with interest on such amount (only) of the award, from the date of judicial demand until the date of tender of such amounts. Lumbermens prayed that such amount be held to constitute payment in full of its liability as the defendant insurer cast under the final judgment in Younger v. Bonin. (Lumbermens had already paid the court costs of the action.)

The trial court granted judgment in accordance with the above-stated prayer for relief.

The parties concede that the determination of Younger’s right to obtain interest depends upon an interpretation of the now-final decree of this court in Younger v. Bonin, irrespective of whether Younger was or was not entitled under Lumber-mens’s policy to obtain legal interest from this insurer upon the full amount of the award rather than just upon the policy limits.

The decree in Younger v. Bonin, see 149 So.2d 456, is set forth in full as Appendix “A”, following this opinion. To simplify discussion, however, we will consolidate and round off the awards, and for purposes of this discussion we will treat the decree as providing:

"It is ordered, adjudged, and decreed that there be judgment herein in favor of plaintiff, Robert Younger, individually [etc.'], and against defendants, Jeanette D. Bonin and Lumbermens Mutual Casualty Company, in solido, for the principal sum of $17,000 (the liability of Lumbermens being limited to only $5,000 of said principal amount), together with interest thereon at the rate of 5 per cent per annum from date of judicial demand until paid

Younger’s able counsel contends that the parenthetical limitation of Lumbermens’s liability is plainly confined to the principal sum ($5,000) and thus does not relate to interest. Therefore, it is urged, Mrs. Bonin and Lumbermens were held liable in solido for the full principal sum of $17,000 plus interest upon said entire amount; but the parenthetical limitation provides that Lumbermens shall be liable only for $5,-000 “of said principal amount” ($17,000), without limiting Lumbermens’s liability in solido for interest upon the entire ($17,000) award.

On the other hand, Lumbermens’s counsel suggests that the intent of the provision adding “together with interest thereon”, was to refer directly both to the award of $17,000 and also to the limitation of Lum-bermens’s liability to $5,000 of such award. As thus read, the award is in solido for the principal sum of $17,000 “together with interest thereon”, with the liability of Lum-bermens likewise being limited to only $5,-000 “together with interest thereon”.

As the appellant notes, however, one objection to the construction suggested by Lumbermens is that the use of the parentheses instead of commas may technically prevent the phrase “together with interest thereon” in the sentence from referring to that part of the sentence separated by the parentheses from the allegedly modifying phrase and the rest of the sentence. This is because, technically, “Parentheses, or marks of parenthesis, are used to set off a word, phrase, or sentence which is inserted by way of comment, explanation, translation, etc., in a sentence but which is structurally independent of it.” Webster’s New Collegiate Dictionary (1959 ed.), p. 1151. (Italics added.)1

[343]*343If this is so, however, then the “structurally independent” participial phrase in parentheses (“the liability of Lumbermens being limited to only $5,000 of said principal amount”) thus set off from the rest of the sentence, might be interpreted as meaning that the liability of Lumbermens is limited to only $5,000 of said principal •amount, without any liability of Lumber-mens whatsoever for interest, either on the '$5,000 or on the $17,000. (We pretermit ■discussion of whether the portion of the •sentence within the parentheses is really inserted only by way of “comment, explanation, translation”, instead of being intended as an integral part of it; even though, perhaps incorrectly, enclosed in parentheses.)

We think that the previous discus•sion indicates that two or more constructions with regard to Lumbermens’s liability for interest might reasonably be placed •upon our decree in Younger v. Bonin. This being so, “When a final judgment is ambiguous or susceptible of two different constructions as regards material parts, resort may be had to the pleadings in order to ■clarify, if such be possible, ambiguities and uncertainties. Davis v. McCain, 171 La. 1011-1018, 132 So. 758; Succession of Regan, 12 La.Ann. 156; Succession of Durnford, 1 La.Ann. 92; Peniston v. Somers, 15 La.Ann. 679.” Williams v. Williams, La.App. 2 Cir., 17 So.2d 641, 644, certiorari denied.

Referring to the trial court decree in Younger v. Bonin (set forth in full as Appendix “B” hereto), it clearly limited Lumbermens’s liability for interest to that upon the awarded policy limits of $5,000 only.

In that suit, the defendant appealed from the trial court’s award to the plaintiff; the plaintiff answered the appeal, requesting a greater award for the personal injuries of the minor child for her use and benefit, and further requesting that some portion of the recovery against the insurer be prorated so as to allow the father to recover individually from the defendant insurer.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Brassette v. Central Louisiana Electric Co.
383 So. 2d 120 (Louisiana Court of Appeal, 1980)
Kilcrease, Ehlinger & Faulkner, Inc. v. McLeod
357 So. 2d 67 (Louisiana Court of Appeal, 1978)
Weisgerber v. Weisgerber
270 So. 2d 313 (Louisiana Court of Appeal, 1972)
Younger v. Lumbermens Mutual Casualty Company
174 So. 2d 672 (Louisiana Court of Appeal, 1965)

Cite This Page — Counsel Stack

Bluebook (online)
158 So. 2d 341, 1963 La. App. LEXIS 2089, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lumbermens-mutual-casualty-co-v-younger-lactapp-1963.