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Castay v. Adm Growmark River Systems3/14/2001
, although it only had 20 percent liability, it would then have had a right of contribution against the settling defendant to recover that 30 percent paid in excess of its assigned fault. The supreme court explained, however, that the right of contribution is lost when a defendant settles. This, according to the supreme court, is why the non-settling defendant is entitled to a credit for the amount of the settling defendant's fault.
The situation with which we are presented, however, does not fit simply into the supreme court's analysis in Fabre. Here, we have a settling defendant, a non-settling defendant and its insurer, and a statutorily immune employer. The question here is whether a non-settling defendant and its insurer are liable for up to 50 percent of a judgment in which a settling defendant has been held 55 percent liable, but also in which a statutorily immune employer has been held 25 percent liable. Fabre does not address that issue. We, therefore, must first determine who, if anyone, is responsible for an immune employer's percentage of fault.
This question has been squarely addressed in Gauthier v. O'Brien, 618 So.2d 825 (La. 1993). In Gauthier, the Louisiana Supreme Court was presented with the question of whether an immune employer's fault should be quantified and answered that question in the affirmative. Because the question arose pre-trial, in the form of a Motion to Strike, Motion for Partial Summary Judgment & In the Alternative, Motion in Liminie, the supreme court then remanded the matter to the trial court, noting that after the jury quantifies the fault of all parties, including the employer, the judge "should disregard the proportion of fault assessed to the employer and reallot the proportionate fault of all other blameworthy parties." Gauthier, 618 So.2d at 833. Although Gauthier was overruled by the supreme court in Cavalier , Cavalier was superceded by statute as explained in Keith v. USF&G; 96-2075 (La. 5/9/97), 694 So.2d 180. The current state of the law on assessment of employer fault is essentially what was decided by the court in Gauthier.
The question, then, before us is whether the trial judge erred in realloting the employer's proportion of fault to both ADM (a settling defendant) and Superior Scrap (a non-settling defendant). From our understanding of the Gauthier rationale, the employer's fault is reallocated proportionately to all other blameworthy parties. We interpret that to mean whether the other blameworthy parties have settled or have not settled. We, therefore, conclude that the trial judge correctly reallocated Quality Fabrication's (plaintiff's employer) fault to both ADM (pre-trial settling defendant) and Superior Scrap (and its insurer, Essex).
We now turn to the question of whether the trial judge correctly increased Superior Scrap's percentage of fault to 50 percent in the new trial solely on that issue. We find that reallocation to be error. Since the trial court's judgment, as Essex (Superior Scrap's insurer) correctly notes, the decision upon which he relied has been reversed. In Fabre v. Casualty Reciprocal Exchange, supra, the Louisiana Supreme Court reversed the Third Circuit's increase of a defendant's fault from 20 percent to 50 percent, the maximum amount of solidary liability under La. Civ. Code art. 2324, as it existed prior to the 1996 prospective amendment. The supreme court determined that the non-settling defendant was entitled to a credit in the amount of the fault of the released tortfeasor, reasoning that the non-settling tortfeasor was deprived of the right of contribution.
Likewise, here, the remaining defendants, Superior Scrap and Essex, are deprived of the right of contr
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