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Toups v. Koch Gateway Pipeline Inc.4/27/2005
This appeal addresses whether Koch Gateway Pipeline Inc. (Koch) is legally entitled to contribution from these plaintiffs under general maritime principles.
Koch appeals a judgment containing two decrees, each of which resolves individual lawsuits that were consolidated. First, the judgment decrees that Koch is jointly and severally liable, together with Kenneth Autin, for damages from personal injury suffered by Anthony Toups. Second, the judgment decrees that Koch is liable, in solido with Anthony Toups, for damages from personal injury suffered by Kenneth Autin. Both decrees declare that Koch is not entitled to contribution. The judgment on appeal deals only with issues involving the payment of damages. The trial had been bifurcated, and the prior judgment on the issue of liability and apportionment of fault was not appealed.
Koch asserted two assignments of error on appeal:
1. In light of a specific finding that plaintiffs were engaged in a joint venture at the time of the accident at issue, the trial court erred in holding Koch jointly and severally liable for damages attributable to the fault of the members of the joint venture;
2. The trial court erred in ruling that Koch is not entitled to contribution from each plaintiff for the damages awarded to the other plaintiff.
At oral argument on appeal, Koch abandoned the first assignment of error, leaving only the second for our review. For the following reasons, we vacate portions of the judgment, amend the judgment, and as amended we affirm.
CONTRIBUTION
In the assignment of error that we do review, Koch alleges that the trial court erred in ruling that it is not entitled to contribution from Toups and Autin. We agree.
The trial court ruled that Koch was not entitled to contribution because contribution was not specially pled as an affirmative defense. The trial court erred in so holding. Contribution need not be specially pled. See Scarbrough v. O.K. Guard Dogs, 03-1243, p. 12 (La.App. 1 Cir. 5/14/04), 879 So.2d 239, 248, writ denied, 04-1440 (La.9/24/04), 882 So.2d 1127. In McIntyre v. Gov't Employees Ins. Co., 413 So.2d 174, 177 (La.App. 4 Cir.1982), the court observed that, " ontribution may be asserted in answer and reconvention, by way of third party demand or by a subsequent action ." The McIntyre court also recognized that the issue of contribution could be raised by appeal or answer to appeal. See Id.
The right to contribution is established in the general maritime law. See Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 111-15, 94 S.Ct. 2174, 2177-78, 40 L.Ed.2d 694 (1974). In their briefs, all parties concur that this is a general maritime case.
Even so, we decline Koch's request that we determine the shares and amounts of contribution to which it may be entitled. Koch argues that we should limit the payment of damages among the parties to the amount attributable to their proportionate fault, citing Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 271 n. 30, 99 S.Ct. 2753, 2762 n. 30, 61 L.Ed.2d 521 (1979), which, Koch argues, suggests such procedure in federal maritime cases.
Maritime law, however, does not provide such remedy, and the very footnote in Edmonds that Koch argues disputes this. The court said: "But we did not upset the rule that the plaintiff may recover from one of the colliding vessels the damage concurrently caused by the negligence of both." Id.
Under federal maritime law, the right to contribution accrues from the date payment is made. See United States Line, Inc. v. United States, 470 F.2d 487, 489 (5th Cir1972) and Hercules, Inc. v. Stevens
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