Opinion
Civil Action No. 99-1996, C/W 00-3601, Section: "J" (4)
October 3, 2001
Before the Court is the Renewed Motion for Summary Judgment (Rec. Doc. 113) filed by third party defendants AmeriGas, Inc., AmeriGas Partners, L.P., and AmeriGas Propane, Inc. (hereinafter, collectively referred to as "AmeriGas"). Third-party plaintiff, Air Liquide America Corporation ("Air Liquide") opposes the motion. The motion, set for hearing on Wednesday, September 26, 2001, is before the Court on briefs without oral argument.
BACKGROUND
The main demand in this action arises out of claims by survivors of Jerry Wayne Harness, Sr., and Michael LeCompte, for Harness' death and LeCompte's alleged injuries which the plaintiff's attribute to an explosion at the facility of defendant Louisiana Dock, Harness' and LeCompte's employer. The explosion occurred as a result of a leaking gas line at Louisiana Dock's facility; the gas line was supplied by gas delivered by AmeriGas pursuant to its contract with Air Liquide, and stored in propane tanks owned by Air Liquide.
In its third party demand (Rec. Doc. 16), Air Liguide seeks recovery, through contribution and/or indemnity, of any amounts for which it may ultimately be held liable to plaintiffs, based on its assertion that any fault visited upon it is actually the responsibility of AmeriGas. In the instant motion, AmeriGas seeks dismissal of Air Liquids's contribution and indemnity claims. For the reasons which follow, the Court finds that the motion should be granted.
DISCUSSION
1. Contribution claim
The concept of contribution permits a solidary obligor who pays all (or any more than his share) of a plaintiff's damages, to go after the other obligors to recover the co-obligors' share of the damages. See LA. Civ. CODE art. 1804. For this reason, contribution only has application among tortfeasors who are solidarily liable. Under the 1996 amendments to the Louisiana Civil Code, solidary liability may only be found in the case of tortfeasors who conspire to cause intentional or willful harm. LA. CIV. CODE art. 2324. "Noncontractual solidary liability was abolished in 1996, except as to those tortfeasors who conspire to cause intentional or willful harm." Thompson v. Harrington, 746 So.2d 652, 658 (La.Ct.App. 3rd Cir. 1999), citing Narcise v. Illinois Cent. Gulf R.R. Co., 427 So.2d 1192 (La. 1983).
In opposing summary judgment, Air Liguide attempts to distinguishThompson by suggesting that the reference in Thompson to "non-contractual solidarity liability" makes it inapposite to the instant case, which Air Liguide contends involved a verbal contract. However, it appears to the Court that Air Liquide has misconstrued the meaning of "contractual" in the qualifier "noncontractual" as used by the Thompson court, and the term is not used to refer to situations where parties have contracted for solidary tort liability, but rather to situations in which the liability itself is premised on a contract; for example, in the case of a promissory note in which the terms of the note make co-signers solidarily liable. The fallacy of Air Liquide's proposed interpretation is borne out by the fact that a contract to cover another's tort liability would give rise not to an action for contribution, but for indemnity.
In the instant case there have been no allegations that AmeriGas and Air Liquide conspired to cause the plaintiffs' harm. As a result, any liability among them is joint and several, and no cause of action for contribution exists. Thus, AmeriGas is entitled to summary judgment dismissing Air Liguide's contribution claim.
2. Indemnity claim
Air Liguide's third-party complaint also seeks indemnity from AmeriGas in the event it is found liable for any of plaintiffs' damages. Apparently acknowledging that there is no indemnity contract between it and AmeriGas, Air Liquide asserts that there is an implied indemnity in its favor.
In making this argument, Air Liquide relies on Nassif v. Sunrise Homes Inc. 739 So.2d 183, 185 (La. 1999). Nassif involved a suit in redhibition brought by a homeowner against the seller and the builder of the home; the homebuilder in turn third-partied the engineering firm that was actually responsible for the redhibitory defect. In finding that the engineering firm was required to indemnify the homebuilder for its attorney's fees, the court recognized an implied indemnity owed by the engineering firm (which was actually at fault) to the homebuilder (which was technically liable by virtue of the warranty against redhibitory defects owed to the purchaser). The Court explicitly found that "[a]n implied contract of indemnity arises only where the liability of the person seeking indemnification is solely constructive or derivative and only against one who, because of his act, has caused such constructive liability to be imposed." Other examples of solely constructive or derivative liability include vicarious liability and strict liability.
The record does not reflect that plaintiffs have sought to hold Air Liquide liable under one of these theories that would give rise to purely constructive or derivative liability; rather, the Complaint seeks to recover from Air Liguide whatever damages are attributed to Air Liquide's own negligence. Therefore, the implied indemnity Air Liquide argues for is inapplicable in this case.
Air Liquide claims that it is not at fault for plaintiff's injuries; thus, it appears that what Air Liquide hopes to gain from its indemnity claim is an assurance that it will not have to pay for the fault of another, namely AmeriGas. However, Air Liquide need not be concerned: because no one has pled plaintiffs' injuries were the result of a conspiracy between it and AmeriGas, under Civil Code article 2324, Air Liquide will never be required to pay an amount in damages that is not proportionate to its own actual negligence. Thus, there is simply no need for the indemnity Air Liquide seeks and, absent any contractual indemnity agreement, Air Liquide's indemnity claim should also be dismissed. Accordingly;
IT IS ORDERED that the Renewed Motion for Summary Judgment (Rec. Doc. 113) filed by third party defendants AmeriGas, Inc., AmeriGas Partners, L.P., and AmeriGas Propane, Inc., should be and is hereby GRANTED and the third-party claims of Air Liquide against the AmeriGas entities are DISMISSED.