Opinion
No. 97-C-1789.
November 5, 1997. Opinion Denying Rehearing December 15, 1997.
APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS, NO. 95-15501, STATE OF LOUISIANA, HONORABLE CAROLYN GILL-JEFFERSON, J.
Gregory C. Weiss, Stephen R. Barry, Tonya M. Rhodes, Weiss Eason, L.L.P., New Orleans, David Ledyard, Strong, Pipkin, Nelson Bissell, Beaumont, TX, for defendant-relator.
Before LOBRANO, PLOTKIN and CIACCIO, JJ.
Defendant Exxon Corporation seeks supervisory review of a trial court judgment denying its exception of improper venue. We grant certiorari, but affirm the trial court judgment denying the exception.
Plaintiff Charles Powell filed suit in Orleans Parish against Exxon and other defendants, alleging injury caused by asbestos exposure. Powell's claim against Exxon is based on the Jones Act, unseaworthiness, and general negligence; specifically, Powell claims that he was exposed to asbestos while he was an Exxon employee working as a field maintenance man between 1955 and 1976. As part of his Exxon duties, Powell alleges that he installed equipment on offshore platforms, made gaskets out of sheets of asbestos, worked on an LST containing asbestos, worked at Bryan Oil Field installing and repairing equipment containing asbestos, and worked on equipment and instrumentation in Mississippi and Florida.
Exxon filed an exception of improper venue, arguing that because Powell's alleged asbestos exposure during his Exxon employment did not occur in Orleans Parish, venue was improper as to Exxon in Orleans Parish. On the other hand, Powell claims that venue is proper as to Exxon in Orleans Parish under the provisions of La.C.C.P. art. 73, relative to venue in suits against joint or solidary obligors, because he was exposed to asbestos in Orleans Parish and because several other defendants, R.P. Farnsworth, Reilly Benton Co., and Eagle, Inc. were domiciled in Orleans Parish. Exxon argues that the venue provisions of La.C.C.P. art. 73 do not apply because it is not solidarily liable with the Orleans Parish defendants for Powell's injuries. The trial court denied the exception.
La.C.C.P. art. 73, relative to venue in actions against joint or solidary obligors, provides as follows:
A. An action against joint or solidary obligors may be brought in a parish of proper venue, under Article 42 only, as to any obligor who is made a defendant provided that an action for the recovery of damages for an offense or quasi-offense against joint or solidary obligors may be brought in the parish where the plaintiff is domiciled if the parish of plaintiff's domicile would be a parish of proper venue against any defendant under either Article 76 or R.S. 13:3203.
A plaintiff defending against an exception of venue by invoking the provisions of La.C.C.P. art. 73 must allege sufficient facts to prove that the venue chosen is the proper venue for at least one of the joint or solidary obligors. Spott v. Otis Elevator Co., 601 So.2d 1355 (La. 1992). Generally, alleging that some of the defendants are domiciled in the parish where the suit is filed and requesting judgment against the defendants in solido is sufficient. Akins v. Parish of Jefferson, 529 So.2d 27 (La. App. 5th Cir.), modified on other grounds, 533 So.2d 970 (La. 1988). The plaintiff is also required to allege facts showing that the various defendants are in fact jointly or solidarily obligated. Paul v. Wilcox, 228 So.2d 487 (La.App. 1st Cir. 1969). Accordingly, this court must determine whether Powell's petition in the instant case contains sufficient allegations to support a judgment against the Exxon and the other defendants as joint or solidary obligors, if proven.
The three possible types of obligations are defined by the Louisiana Civil Code as follows:
When each of different obligors owes a separate performance to one obligee, the obligation is several for the obligors. La.C.C.P. art. 1787.
When different obligors owe together just one performance to one obligee, but neither is bound for the whole, the obligation is joint for the obligors. La.C.C.P. art. 1788.
An obligation is solidary for the obligors when each obligor is liable for the whole performance. A performance rendered by one of the solidary obligors relieves the others of liability toward the obligee. La.C.C.P. art. 1794.
Exxon claims that the factual allegations of Powell's petition in the instant case, even if proven, are insufficient to support a judgment against Exxon and the other defendants as joint or solidary obligors. In support of that argument, Exxon cites primarily to Littleton v. Montelepre Extended Care Hospital, 94-1661 (La.App. 4th Cir. 6/7/95), 657 So.2d 572, writ denied, 95-1727 (La. 10/13/95), 661 So.2d 499, in which the court found that the first nursing home providing care to plaintiff was not liable for aggravation of prior injuries and infliction of new injuries by a second nursing home. Exxon does not even address whether it might be jointly liable with the other defendants.
The Littleton case is distinguishable from the instant case because the injuries sustained by the Littleton plaintiff in the first accident and the subsequent accident were distinct, despite the fact the plaintiffs claimed aggravation of the original injury in the second accident. Littleton stands only for the proposition that a tortfeasor's duty to refrain from causing injury to another through his negligent conduct does not encompass the risk that a different tortfeasor, in an unrelated accident, will cause greater damage to the plaintiff.
In contrast to the Littleton case, the allegations in the instant case describe successive negligence, as opposed to subsequent negligence. Unlike the Littleton case, the instant case does not involve two distinct accidents, but instead involves factual allegations that Powell's injuries resulted from the cumulative effect of years of exposure to asbestos in the workplace, albeit different workplaces while he was employed by different employers, including Exxon.
The existing jurisprudence on this issue is not especially instructive in determining the nature of the obligations of Exxon and the other defendants in this case. Most of the solidary obligation cases deal with insureds and insurers, sureties and guarantors, joint contracts, contribution, and settlement and release. The cases dealing with joint obligees are focused on leases, promissory notes, sureties, and stockholder liability. Almost all the cases discussing several obligations are based purely on contractual interpretation. Exxon failed to cite and we failed to locate any cases dealing with alleged successive tortfeasors which were similar to the instant case.
Nevertheless, applying the above standards for deciding an exception to venue in a case involving alleged joint or solidary obligors, we find that the allegations of Powell's petition are sufficient to support a finding of joint or solidary liability between Exxon and the other defendants, if proven. The injuries complained of allegedly resulted from the cumulative effect of the Powell's work-related exposure to asbestos, some of which allegedly occurred while Powell was employed by Exxon.
Accordingly, we find no manifest error in the trial court judgment denying the exception of improper venue; Powell has properly alleged joint or solidary liability between Exxon and the Orleans Parish defendants.
WRIT GRANTED; RELIEF DENIED.
ON REHEARING
Contrary to relator's assertions, our original decision in this supervisory writ application is not inconsistent with this court's decision in McDaniels v. Allison, No. 97-C-1358 (La.App. 4th Cir. 9/13/97), 700 So.2d 558, which held that the plaintiffs failed to allege solidarity between the owners of various homes where the plaintiffs lived, all of which allegedly contained lead paint which contributed to the alleged illnesses of plaintiffs' children. Because the allegations were insufficient to support a finding of solidarity, the court granted an exception of prescription in favor of a defendant brought into the suit by a supplemental and amending petition filed after the prescriptive period had tolled.
Important distinctions between the instant case and the McDaniels case exist. In the McDaniels case, the plaintiff did not allege, and the panel did not analyze, whether the defendant might be jointly liable with one another for the plaintiffs' injuries. That issue was moot in the McDaniels case because an exception of prescription can be defeated only by sufficient allegations of solidarity; allegations of joint liability are not enough. On the other hand, the question of whether the plaintiffs' allegations were sufficient to support a finding of joint liability is critical to the instant case since an exception to venue may be defeated by allegations of either solidarity or joint liability. As we found in our original opinion, the plaintiffs' allegations, if proven, are sufficient to support a finding of joint liability between the various defendants.
Accordingly, the application for rehearing is denied.
REHEARING DENIED.