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Henderson v. Sellers12/5/2001
REVERSED AND REMANDED FOR TRIAL ON THE MERITS.
The trial court granted the defendant's, Samuel Sellers,' motion for summary judgment on the issue of his liability for the actions of his minor child against a third party in this personal injury action. Mr. Sellers is the domiciliary parent of Brian Sellers. He and his ex-wife, Yvonne Sellers, agreed in a Joint Custody Plan that the parent with "custody" of Brian would bear responsibility for the tortious acts of Brian. Brian was in the physical custody of Ms. Sellers at the time of his tortious act. The plaintiff, Justin Douglas Henderson (Justin), appeals the trial court's judgment and dismissal of his case against Mr. Sellers.
We conclude that Mr. Sellers is not entitled to judgment as a matter of law based on the undisputed material facts. We, therefore, reverse the judgment of the trial court. While divorced parents may validly contract with each other for the allocation of responsibility for the delictual acts of their minor children, such a contract is valid as between the parties to the contract. It cannot eviscerate the rights of an injured third party.
I. ISSUE
In determining whether the trial court erred in granting the summary judgment in favor of Mr. Sellers, we must decide the limited issue of whether divorced parents who have joint custody of a minor child can validly contract, within a joint custody implementation plan pursuant to La.R.S. 9:335, to shift responsibility for the delictual acts of their minor child to the parent who has physical custody of the child at the time the child commits the delictual acts and, if so, the effect of such a contract on a third party claimant.
II. FACTS AND PROCEDURAL HISTORY
On August 21, 1998, Justin was involved in an altercation with the minor child of Mr. Sellers, Brian Sellers. Brian broke Justin's jaw during a fight. Yvonne Sellers (Ms. Sellers) and Mr. Sellers are Brian's divorced parents. The original divorce decree awarded Mr. and Ms. Sellers joint custody of the Sellers' four minor children and named Ms. Sellers as the domiciliary parent. In 1998, however, when Brian was almost seventeen years old, he went to live with Mr. Sellers. By consent judgment, Mr. Sellers was designated domiciliary parent of Brian. Ms. Sellers was given physical custody of Brian on the weekends that Mr. Sellers did not have physical custody of the other children. All of the provisions of the 1991 "Joint Custody Plan" remained in effect including the following paragraph:
Responsibility for the acts of the minor children shall be borne by the parent in custody at the time of the applicable act or acts. Said responsibility shall include damages occasioned by the acts of the minor children as contemplated in Louisiana Civil Code Article 2318.
On the night of Brian's altercation with Justin, he was visiting with his mother, Ms. Sellers, pursuant to her visitation rights established in the Sellers' joint custody plan.
Justin filed suit on August 19, 1999, naming Brian Sellers, Yvonne Sellers and Samuel Sellers as defendants. All defendants denied liability. On March 6, 2000, Mr. Sellers' insurer, Shelter Mutual Insurance Company (Shelter), filed a "Petition of Intervention and/or Declaratory Action" asserting, among other defenses to the original petition, that there was no coverage based upon the intentional act exclusion in the insurance policy.
The defendants filed motions for summary judgment. The trial court signed a judgment granting Mr. Sellers' motion for summary judgment and dismissed with prejudice Justin's case against Mr. Sellers. This appeal followed.
III. LAW AND DISCUSSI
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