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Castay v. Adm Growmark River Systems3/14/2001
plaintiff's new trial motion on fault quantification, and reallocated the employer's fault, increasing Superior Scrap's percentage of fault to 26.7 percent in a September 27, 1999 judgment and then, on January 5, 2000, increased the percentage to 50 percent against Superior Scrap and its insurer. The trial judge denied the defendant's new trial motion and granted the defendants' JNOV motion only to decrease Deborah Castay's loss of consortium award from $250,000.00 to $75,000.00.
The court's final judgment was as follows:
General Damages: $750,000.00
Past Lost Wages: $137,138.00
Future Lost Wages: $183,334.00
Past Medical Expenses: $41,210.00
Future Medical Expenses: $84,000.00
Loss of Consortium (Deborah Castay): $75,000.00
The trial court then reduced the above amounts to 50 percent, the reallocated fault of Superior Scrap and Essex.
Defendants-appellants, Superior Scrap, and its insurer, Essex, appeal the trial court's judgment on five separate grounds: (1) the reallocation of the employer's fault to increase Superior Scrap's liability from 26.7 percent of the total judgment to 50 percent; (2) causation, specifically related to the owner's alleged failure to hose the dryer from the top; (3) excessiveness of damages awarded to the plaintiff for pain and suffering and to his wife for loss of consortium; (4) plaintiff's recovery of medical expenses paid by the compensation carrier since the employer/compensation carrier and Superior Scrap were solidarily liable, and further, allowing the jury to hear the amount of the medical bills paid by the compensation carrier, and (5) failure of the trial judge to find the plaintiff comparatively at fault. For the following reasons, we amend in part, and, as amended, affirm.
In their first assignment of error, Superior Scrap and Essex contend the trial judge erred in reallocating the fault of the statutorily immune employer (Quality Fab) to increase their liability from 26.7 percent to 50 percent. They contend that the Louisiana Supreme Court's reversal of the Third Circuit case upon which the trial judge relied in granting the new trial on that issue requires us to reinstate their fault at 26.7 percent. They argue that the supreme court held in Fabre that a plaintiff cannot recover the share of the settling tortfeasor from a non-settling tortfeasor, and thus, here, plaintiff cannot recover the employer's amount of fault from Superior and Essex.
While we agree that the trial court's final re-allocation of fault to the extent of 50 percent is incorrect, the defendant's argument is misdirected. As we appreciate the Court's decision in Fabre, a non-settling tortfeasor is entitled to a credit of the percentage of fault allocated to a settling tortfeasor. In Fabre, one of the two parties liable settled prior to trial. The trial court determined that the settling defendant was 80 percent at fault, while the non-settling defendant was 20 percent at fault. The appellate court affirmed the trial court's findings of fault but amended the judgment to provide that the non-settling defendant remained solidarily liable for 50 percent of the judgment, under La. Civ. Code art. 2324, prior to the 1996 prospective amendment, although it had only been allocated with 20 percent of the fault. The supreme court reversed the appellate court's amendment to the fault allocation and reinstated the trial court's 20% finding of fault against the non-settling defendant. The supreme court reasoned, using the precise facts before it, that if the settling defendant had not settled, and the non-settling defendant had been forced to pay 50 percent of the judgment
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