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Henderson v. Sellers12/5/2001
the mother . . . are responsible for the damage occasioned by their minor or unemancipated children, residing with them, or placed by them under the care of other persons, reserving to them recourse against those persons. (Emphasis added.)
Louisiana Revised Statutes 9:335(A)(3) does not relieve a parent of the responsibility imposed pursuant to La.Civ.Code art. 2318 to indemnify a third person for damages caused by his minor child. Rather, La.R.S. 9:335(A)(3) relates to an allocation of responsibility between the parents and does not abrogate an individual parent's responsibility to third persons.
While divorced parents may contract between themselves, this contract has the effect of law for the parties. La.Civ.Code art. 1983. Such "contracts may produce effects for third parties only when provided by law." La.Civ.Code art. 1985. Comment (b) to Article 1985 makes it clear that a contract binds only the parties who are privy to it. Comment (b) in part, states:
Because of the ever-increasing importance of third party-beneficiary contracts, this Article provides that contracts bind only the parties unless they have lawfully stipulated otherwise.
Thus, unless it is for the benefit of a third party and the parties to the contract have lawfully provided for such, it binds only the parties.
If the paragraph at issue had not been made part of the Plan, both parents would clearly be responsible for Brian's tortious conduct, regardless of Brian's physical location or the parents' marital status. Had Brian committed his tortious act while under the care of another person, his parents would still be responsible to the damages occasioned by the injured party. The parents would be able to seek indemnification from the person in whose care Brian had been placed. The provision in the Plan does not change the responsibility to third parties imposed by La.Civ.Code art. 2318. Rather, it simply provides a right of indemnification as between the parents.
For the foregoing reasons, the judgment of the trial court is reversed. We remand this case to the trial court for trial on the merits. Costs of this appeal are assessed to defendants-appellees, Brian Sellers, Samuel Sellers, and Yvonne Sellers.
REVERSED AND REMANDED FOR TRIAL ON THE MERITS.
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