DERRY LABORDE VERSUS KIRBY M. PECOT Consolidated With KENYAWN AUGUSTINE VERSUS NEW HORIZON KIDS QUEST, IV, INC. Consolidated With KENYAWN AUGUSTINE VERSUS KIRBY M. PECOT Consolidated WithL

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CW 05-285 consolidated with CW 05-304, CW 05-330, CW 05-365, CW
05-369, CW 05-374, CW 05-376, CW 05-401, CW 05-406, CW 05-407, CW
05-1011, CW 05-1044, CW 05-1057

DERRY LABORDE, ET AL
VERSUS
KIRBY M. PECOT, ET AL

***CONSOLIDATED WITH***

KENYAWN AUGUSTINE, ET AL
VERSUS
NEW HORIZON KIDS QUEST, IV, INC., ET AL

***CONSOLIDATED WITH***

KENYAWN AUGUSTINE, ET AL
VERSUS
KIRBY M. PECOT, ET AL

***CONSOLIDATED WITH***

LOUIS AND JENNIFER BLALOCK, ET AL
VERSUS
NEW HORIZON KIDS QUEST, IV, INC., ET AL

**********

ON WRIT OF REVIEW FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES
NOS. 2002-3740, 2002-3996, 2002-3997, 2002-3998
HONORABLE WILLIAM BENNETT, DISTRICT JUDGE

AS REMANDED BY THE SUPREME COURT OF LOUISIANA

**********
MARC T. AMY
JUDGE
**********

BEFORE THE COURT EN BANC: Ulysses Gene Thibodeaux, Chief Judge, Sylvia
R. Cooks, John D. Saunders, Oswald A. Decuir, Jimmie C. Peters, Marc T. Amy,
Michael G. Sullivan, Glenn B. Gremillion, Elizabeth A. Pickett, Billy H. Ezell, J.
David Painter, and James T. Genovese, Judges.

WRIT DENIED. REMANDED.

Raymond L. Brown, Jr.
Lottie L. Bash
Gold, Weems, Bruser, Sues & Rundell, APLC
Post Office Box 6118
Alexandria, LA 71037-6118
(318) 445-6471
COUNSEL FOR:
Gremillion Corrugated, LLC

Steven Claude Judice
Chad Sullivan
Keogh, Cox & Wilson, Ltd.
Post Office Box 1151
Baton Rouge, LA 70821
(225) 383-3796
COUNSEL FOR:
Larry Stockwell Heating & AirConditioning
Federated Mutual Insurance Company

David J. Schexnaydre
Wade Dillard Rankin
Edward J. Lassus, Jr.
Mary E. Lord
Pajares & Schexnaydre, LLC
103 Northpark Boulevard, Suite 110
Covington, LA 70433
(985) 292-2000
COUNSEL FOR:
Fulcrum Insurance Company

Ralph R. Alexis, III
Porteous, Hainkel & Johnson, LLP
704 Carondelet Street
New Orleans, LA 70130
(504) 581-3838
COUNSEL FOR:
Coastal Air Balance, Inc.

Harry E. Forst
639 Loyola Avenue, Suite 1830
New Orleans, LA 70113
(504) 525-0070
COUNSEL FOR:
Coastal Air Balance, Inc.

2

Christopher T. Grace, III
3421 North Causeway Boulevard, 9th Floor
Metairie, LA 70002
(504) 831-4091
COUNSEL FOR:
Coastal Air Balance, Inc.

William B. Baggett
Wells T. Watson
Baggett, McCall, Burgess, Watson & Gaughan
Post Office Drawer 7820
Lake Charles, LA 70606-7820
(337) 478-8888
COUNSEL FOR:
Louis Blalock, et al
Derry Laborde, et al
Kenyawn Augustine, et al

Eugene A. Ledet, Jr.
Rivers, Beck, Dalrymple & Ledet
Post Office Drawer 12850
Alexandria, LA 71315-2850
(318) 445-6581
COUNSEL FOR:
Louis Blalock, et al
Derry Laborde, et al
Kenyawn Augustine, et al

Triston Kane Knoll
Jerold Edward Knoll Jr. Esq.
The Knoll Law Firm
Post Office Box 426
Marksville, LA 71351
(318) 253-6200
COUNSEL FOR:
Louis Blalock, et al
Derry Laborde, et al
Kenyawn Augustine, et al

Terrence L. Brennan
Keith J. Bergeron
Deutsch, Kerrigan & Stiles, LLP
755 Magazine Street
New Orleans, LA 70130-3672
(504) 581-5141
COUNSEL FOR:
Atrium Vinyl Products

3

Richard D. Chappuis, Jr.
Kristen Broussard Menard
Hoai T. Hoang
Voorhies & Labbe´
Post Office Box 3527
Lafayette, LA 70502
(337) 232-9700
COUNSEL FOR:
Kirby M. Pecot, d/b/a
Pecot & Co. Architects
Design Professional Ins. Co.

Simone Chachere Dupre
Voorhies & Labbe´
Post Office Box 3527
Lafayette, LA 70502-3527
(337) 232-9700
COUNSEL FOR:
Kirby M. Pecot

Dominic Joseph Gianna
Michael Otis Waguespack
Alan Dean Weinberger
Middleberg, Riddle, & Gianna
201 St. Charles Avenue, 31st Floor
New Orleans, LA 70170-3100
(504) 525-7200
COUNSEL FOR:
The Trane Company

Lawrence J. Duplass
Claire A. Breaux
Andrew D. Weinstock
Duplass, Zwain, Bourgeois & Morton, APLC
3838 N.Causeway Boulevard, Suite 2900
Metairie, LA 70002
(504) 832-3700
COUNSEL FOR:
The Trane Company

Whitney A. Klein
Christopher Carton
McCarter & English
Post Office Box 652
Newark, NJ 07101-0652
(973) 622-4444
COUNSEL FOR:
The Trane Company

4

Gary M. Zwain
Kevin R. Derham
Duplass, Zwain, Bourgeois & Morton, APLC
3838 N.Causeway Boulevard, Suite 2900
Metairie, LA 70002
(504) 832-3700
COUNSEL FOR:
Jefferson Sprinkler Company, Inc.

Jerry J. Falgoust
Dauzat, Falgoust, Caviness and Bienvenu
Post Office Box 1450
Opelousas, LA 70571-1450
(337) 942-5811
COUNSEL FOR:
D. W. Fire Stopping, Inc.

Ronald J. Fiorenza
Provosty, Sadler, deLaunay, Fiorenza & Sobel, APC
Post Office Box 1791
Alexandria, LA 71309-1791
(318) 445-3631
COUNSEL FOR:
Alvarez Donnoway-Passons, Inc.

John P. Doggett
Zebulon M. Winstead
Provosty, Sadler, deLaunay, Fiorenza & Sobel, APC
Post Office Box 1791
Alexandria, LA 71309-1791
(318) 445-3631
COUNSEL FOR:
Dixie Roofing and Sheet Metal Company, Inc.
Century Insurance Group
Colony Insurance Company

R. Joshua Koch, Jr.
Spyridon, Koch, Palermo & Dornan, LLC
3838 N.Causeway, Suite 3010
Metairie, LA 70002
(504) 830-7800
COUNSEL FOR:
Tunica-Biloxi Indians
Paragon Casino Resort

5

Rachelle Deckert Dick
Forrester, Jordan & Dick, LLC
7809 Jefferson Hwy, Suite G
Baton Rouge, LA 70809
(225) 928-5400
COUNSEL FOR:
Tunica-Biloxi Indians of Louisiana
Paragon Casino Resort

Milton O'Neal Walsh
Walsh & Bailey
Post Office Box 3157
Baton Rouge, LA 70821-3157
(225) 383-8649
COUNSEL FOR:
Security Insurance Company of Hartford

William L. Melancon
Dawn M. Fuqua
Joseph T. Puhekker
Melancon & Associates, LLC
900 South College Road, Suite 300
Lafayette, LA 70503
(337) 233-8600
COUNSEL FOR:
Security Insurance Co. of Hartford
M & E Consulting, Inc.

Leigh Haynie
Joseph Joy & Associates
Post Office Box 4929
Lafayette, LA 70502
(337) 232-8123
COUNSEL FOR:
M & E Consulting, Inc.
Security Insurance Company of Hartford

Gary Paul Kraus
Richard Joseph Petre, Jr.
Onebane Law Firm
Post Office Box 3507
Lafayette, LA 70502-3507
(337) 237-2660
COUNSEL FOR:
Security Insurance Company of Hartford
Gunn Electric Company, Inc.

6

Michael P. Maraist
Onebane Law Firm
Post Office Box 3507
Lafayette, LA 70502-3507
(337) 237-2660
COUNSEL FOR:
Gunn Electric Company, Inc.

Thomas Edward Loehn
Charles K. Chauvin
Boggs, Loehn & Rodrigue
1010 Common Street, Suite 2400
New Orleans, LA 70112
(504) 523-7090
COUNSEL FOR:
Design Tex Group

DeWitt T. Methvin, Jr.
Post Office Box 1871
Alexandria, LA 71309
(318) 448-1632
COUNSEL FOR:
State Farm Insurance Company

Larry A. Stewart
Stafford, Stewart & Potter
Post Office Box 1711
Alexandria, LA 71301
(318) 487-4910
COUNSEL FOR:
Liberty Mutual Insurance Co.
F. L. Crane & Sons, Inc.

Charmagne A. Padua
Jay M. Lonero
Larzelere Picou Wells Simpson Lonero, LLC
3850 N. Causeway Boulevard, Suite1100
Metairie, LA 70002
(504) 834-6500
COUNSEL FOR:
TIG Insurance Company

Rodney M. Rabalais
Rabalais & Roy
Post Office Box 447
Marksville, LA 71351
(318) 253-4622
COUNSEL FOR:
Tunica Biloxi Construction Co.

7

Patrick J. Hanna
Rabalais, Hanna & Hebert
701 Robley Drive, Suite 210
Lafayette, LA 70503
(337) 981-0309
COUNSEL FOR:
Tunica Biloxi Construction Co.

Charles A. Schutte, Jr.
Guglielmo, Marks, Schutte, Terhoeve & Love
320 Somerulos Street
Baton Rouge, LA 70802
(225) 387-6966
COUNSEL FOR:
Signlite, Inc.

Robert A. Vosbein
Adams and Reese, LLP
701 Poydras Street, Suite 4500
New Orleans, LA 70139
(504) 581-3234
COUNSEL FOR:
Continental Casualty Company

John B. Davis
Adams and Reese, LLP
450 Laurel Street, Suite 1900
Baton Rouge, LA 70801-1900
(504) 336-5200
COUNSEL FOR:
Continental Casualty Company

David A. Hurlburt
George D. Ernest, III
Hurlburt, Privat & Monrose, APLC
Post Office Drawer 4407
Lafayette, LA 70502-4407
(337) 237-0261
COUNSEL FOR:
Berg, Inc.

Lourdes Estevez Martinez
Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, ALC
601 Poydras Street, Suite 2775
New Orleans, LA 70130-6027
(504) 568-1990
COUNSEL FOR:
Travelers Indemnity Company

8

James H. Gibson
Allen & Gooch
Post Office Box 3768
Lafayette, LA 70502-3768
(337) 291-1300
COUNSEL FOR:
New Horizon Kids Quest, Inc.

Matthew J. Ungarino
Ungarino & Eckert, LLC
315 South College Road, Suite 239
Lafayette, LA 70503
(337) 235-5656
COUNSEL FOR:
Specialty Surplus Insurance Company

David I. Bordelon
Ungarino & Eckert, LLC
3909 Plaza Tower Drive
Baton Rouge, LA 70816
(225) 292-2000
COUNSEL FOR:
Specialty Surplus Insurance Company

Ray F. Lucas, III
315 South College Road, Suite 239
Lafayette, LA 70503
(337) 235-5625
COUNSEL FOR:
Specialty Surplus Insurance Company

David K. Nelson
George T. Hawthorne
Jeffrey N. Boudreaux
Kean, Miller, Hawthorne, D’Armond, McCowan & Jarman, LLP
Post Office Box 3513
Baton Rouge, LA 70821
(225) 387-0999
COUNSEL FOR:
Custom Metal and Siding
Dwayne Whatley

Roy M. Mosley
CNA Environmental & Mass Tort
3 Embarcadero Center, 12th Floor
San Francisco, CA 94111
(415) 440-3102
COUNSEL FOR:
CNA Insurance Company

9

Richard G. Duplantier, Jr.
Stephen J. Moore
Michael D. Lonegrass
Galloway, Johnson, Tompkins, Burr & Smith
701 Poydras Street, Suite 4040
New Orleans, LA 70139-1200
(504) 525-6802
COUNSEL FOR:
CNA Insurance Company
McElroy Metal, Inc.

D. Patrick Daniel, Jr.
P. O. Drawer 80827
Lafayette, LA 70598-0827
(337) 232-3333
COUNSEL FOR:
McElroy Metal, Inc.

Mark R. Pharr, III
Galloway, Johnson, Tompkins, Burr & Smith
4021 Ambassador Caffery, Suite 175
Lafayette, LA 70503
(337) 735-1760
COUNSEL FOR:
McElroy Metal, Inc.

David P. Salley
Glen E. Mercer
Salley, Hite, Rivera & Mercer
365 Canal Street, Suite 1710
New Orleans, LA 70130
(504) 566-8800
COUNSEL FOR:
Zurich American Insurance Company

Christopher S. Hardy
Penny & Hardy, APLC
Post Office Box 2187
Lafayette, LA 70502-2187
(337) 231-1955
COUNSEL FOR:
Republic Vanguard Insurance Company

10

Keith C. Armstrong
Scott C. Barney
Chaffe McCall, LLP
8550 United Plaza Boulevard, Suite 202
Baton Rouge, LA 70809
(225) 992-4300
COUNSEL FOR:
Senergy, Inc.

Bonita K. Preuett-Armour
Armour Law Firm, LLC
Post Office Box 710
Alexandria, LA 71309
(318) 442-6611
COUNSEL FOR:
G. W. Moreau Metal Buildings
Glen Moreau
State Farm Insurance Company

Richard T. Musgrave
Musgrave, McLachlan & Penn, LLC
1515 Poydras Street, Suite 2380
New Orleans, LA 70112
(504) 799-4300
COUNSEL FOR:
Western World Insurance Company
JES, Inc.

S. Aaron Siebeneicher
Johnson & Siebeneicher
Post Office Box 648
Alexandria, LA 71309
(318) 484-3911
COUNSEL FOR:
Western World Insurance Company
JES, Inc.

Michael D. Rubenstein
Kenneth T. Wallace
Liskow & Lewis, APLC
701 Poydras Street, Suite 5000
New Orleans, LA 70139-5099
(504) 581-7979
COUNSEL FOR:
Sellers & Josephson, Inc.

11

John T. Walsh
Lathrop & Gage, L.C.
10 S. Broadway, Suite 1300
St. Louis, MO 63102
(504) 581-7979
COUNSEL FOR:
Sellers & Josephson, Inc.

12

AMY, Judge.

The defendants filed applications for supervisory writs with this court after the

trial court denied their exceptions of no right of action and various other exceptions.

This court granted the writs, noting both that La.R.S. 22:655 does not provide for

direct action in state court against the insurer of a party claiming sovereign immunity

and that the Tunica-Biloxi Indian Tribe is an indispensable party to the state court

matter as previously held in Bonnette v. Tunica-Biloxi Indians d/b/a Paragon Casino

Resort, 02-919 (La.App. 3 Cir. 5/28/03), 873 So.2d 1. The Louisiana Supreme Court

denied in part and granted in part the plaintiffs’ related writ application and remanded

the matter for reconsideration of the question of indispensability. For the following

reasons, we deny the defendants’ writ applications and remand for further

proceedings.

Factual and Procedural Background

This matter stems from the construction of a hotel at the Paragon Casino Resort

in Marksville, Louisiana. Paragon is allegedly owned and operated by the Tunica-

Biloxi Tribe of Louisiana. The general contractor for the Paragon construction

project was Tunica-Biloxi Construction Company. Adjacent to the hotel, Paragon

housed a daycare center owned and operated by New Horizon Kids Quest, IV, Inc.

In 2002, former employees and customers of Paragon and New Horizon brought suit

against the Tribe, New Horizon, and subcontractors involved in the construction of

Paragon’s North Tower Hotel. The plaintiffs alleged that toxic mold developed

shortly after the hotel’s opening, causing them injury. The Tribe filed an exception

of subject matter jurisdiction based on sovereign immunity. The non-Tribe

defendants also filed exceptions, contending that the Tribe was an indispensable

party1 to the suit. The trial court granted the exceptions. The decision was affirmed

by a panel of this court in Bonnette v. Tunica-Biloxi Indians d/b/a Paragon Casino

Resort, 02-919 (La.App. 3 Cir. 5/28/03), 873 So.2d 1.

The matter is again before this court as the present four matters were filed

while Bonnette, 873 So.2d 1, was pending. These suits involve the same plaintiffs

and defendants, as well as additional plaintiffs and defendants. However, the Tribe’s

insurer, TIG Insurance Company, was named as a defendant rather than the Tribe in

three of the suits. The plaintiffs named neither TIG nor the Tribe in the fourth matter.

The defendants filed numerous exceptions in the first three matters, including

no right of action, lack of indispensable party and related exceptions such as res

judicata and lis pendens. After this court issued Bonnette, finding the Tribe to be an

indispensable party and affirming the dismissal of the suits involved therein, the trial

court conducted a hearing involving the four new lawsuits and took the matters under

advisement. The trial court ultimately denied the defendants’ exceptions of no right

of action and lack of indispensable party, as well as the remaining exceptions.

On writs of review, this court reversed the trial court’s denial of the exceptions

of no right of action and lack of indispensable party, dismissing the plaintiffs’ claims

as follows:

The trial court erred in denying the exceptions of no right of
action and failure to join an indispensable party. Louisiana Revised
Statute 22:655 does not provide for direct action in state court against
the insurer of a party claiming sovereign immunity. Additionally, the
Tunica-Biloxi Indian Tribe is an indispensable party to the litigation in
state court. Bonnette v. Tunica-Biloxi Indians d/b/a Paragon Casino
Resort, 02-919 (La.App. 3 Cir. 5/28/03), 873 So.2d 1. Accordingly, the

1
We recognize that Louisiana Code of Civil Procedure Articles 641 and 642, as amended
in 1995, no longer classify parties as “necessary” or “indispensable.” Instead, the articles consider
“joinder” of a party. See also La.Code Civ.P. art. 927. However, the filings in this matter continue
to frame the question as one of indispensability, a term that is particularly descriptive here due to the
question of whether dismissal is appropriate.

2

trial court’s ruling is hereby reversed and set aside, and plaintiffs’ claims
against the defendant are hereby dismissed.

See Laborde v. Pecot, unpublished writ opinions rendered June 29, 2005 bearing

docket numbers 05-285, 05-304, 05-330, 05-365, 05-369, 05-374, 05-376, 05-379,

05-381, 05-384, 05-401, 05-406, and 05-407. See also Laborde v. Pecot, unpublished

writ opinions rendered January 5, 2006 and bearing docket numbers 05-986, 05-1011,

05-1017, 05-1044, 05-1052, 05-1057, 05-1072, 05-1090.

The plaintiffs applied for writs to the Louisiana Supreme Court. The supreme

court denied in part and granted in part the application and explained:

Denied in part, granted in part. There is no error in that portion of the
court of appeal’s ruling dismissing the Tribe’s insurer(s). See La. R.S.
22:655(B). However, with respect to the defendants other than the
Tribe’s insurer(s), the case is remanded to the court of appeal for
reconsideration of the applicable factors under La.Code Civ. P. art. 641
in light of La. Civ. Code arts. 2323 and 2324, as interpreted in Dumas
v. State, 02-0563 (La. 10/15/02), 828 So.2d 530.

See Laborde v. Pecot, 05-2254 (La. 3/17/06), 925 So.2d 522; Laborde v. Pecot, 06-

0290 (La. 3/17/06), 925 So.2d 523. Thus, the matter arrives at this court for further

consideration in light of the supreme court’s instructions.2

Discussion

The defendants each offer their own opposition to the trial court’s denial of the

exceptions. In sum, the question before the court, at this point, is whether the Tribe

is a necessary party pursuant to La.Code Civ.P. art. 641, and, if so, whether Article

642 requires dismissal of the action against the remaining defendants in light of the

breadth of La.Code Civ.P. arts. 2323 and 2324.

2
We have not considered arguments outside of the supreme court’s specific remand
instructions.

3

The plain wording of La.Code Civ.P. arts. 641 and 642 indicates that, in certain

circumstances, dismissal of an action against remaining defendants may be

appropriate if a necessary party cannot be joined. The articles provide:

Art. 641. Joinder of parties needed for just adjudication

A person shall be joined as a party in the action when either:

(1) In his absence complete relief cannot be accorded among
those already parties.

(2) He claims an interest relating to the subject matter of the
action and is so situated that the adjudication of the action in his absence
may either:

(a) As a practical matter, impair or impede his ability to protect
that interest.

(b) Leave any of the persons already parties subject to a
substantial risk of incurring multiple or inconsistent obligations.

Art. 642. Determination by court whenever joinder not feasible

If a person described in Article 641 cannot be made a party, the
court shall determine whether the action should proceed among the
parties before it, or should be dismissed. The factors to be considered
by the court include:

(1) To what extent a judgment rendered in the person’s absence
might be prejudicial to him or those already present.

(2) The extent to which the prejudice can be lessened or
avoided by protective provisions in the judgment, by the shaping of
relief, or by other measures.

(3) Whether a judgment rendered in the person’s absence will
be adequate.

(4) Whether the plaintiff will have an adequate remedy if the
action is dismissed for nonjoinder.

In Bonnette, 873 So.2d 1, this court worked through the analysis required by these

articles. The conditions of Article 641 were found to be satisfied, as the Tribe could

not be joined due to its immunity in state court and, thus, relief would be limited to

4

the fault apportioned, if any, between the remaining defendants. The court also noted

that the Tribe’s absence would impair its ability to protect its interest and,

furthermore, that, should the matter be pursued in tribal court, the parties risked the

possibility of multiple or inconsistent obligations. Finding the Tribe necessary under

the criteria of Article 641, the panel turned to Article 642 and found that

circumstances warranted dismissal due to the considerations of Paragraphs (3) and

(4).

The possibility of dismissal through application of La.Code Civ.P. arts. 641

and 642, and as found applicable in Bonnette, appear to be in high tension with

La.Civ.Code arts. 2323 and 2324, which provide:

Art. 2323. Comparative fault

A. In any action for damages where a person suffers injury,
death, or loss, the degree or percentage of fault of all persons causing or
contributing to the injury, death, or loss shall be determined, regardless
of whether the person is a party to the action or a nonparty, and
regardless of the person’s insolvency, ability to pay, immunity by
statute, including but not limited to the provisions of R.S. 23:1032, or
that the other person’s identity is not known or reasonably ascertainable.
If a person suffers injury, death, or loss as the result partly of his own
negligence and partly as a result of the fault of another person or
persons, the amount of damages recoverable shall be reduced in
proportion to the degree or percentage of negligence attributable to the
person suffering the injury, death, or loss.

B. The provisions of Paragraph A shall apply to any claim for
recovery of damages for injury, death, or loss asserted under any law or
legal doctrine or theory of liability, regardless of the basis of liability.

C. Notwithstanding the provisions of Paragraphs A and B, if
a person suffers injury, death, or loss as a result partly of his own
negligence and partly as a result of the fault of an intentional tortfeasor,
his claim for recovery of damages shall not be reduced.

Art. 2324. Liability as solidary or joint and divisible obligation

A. He who conspires with another person to commit an
intentional or willful act is answerable, in solido, with that person, for
the damage caused by such act.

5

B. If liability is not solidary pursuant to Paragraph A, then
liability for damages caused by two or more persons shall be a joint and
divisible obligation. A joint tortfeasor shall not be liable for more than
his degree of fault and shall not be solidarily liable with any other
person for damages attributable to the fault of such other person,
including the person suffering injury, death, or loss, regardless of such
other person’s insolvency, ability to pay, degree of fault, immunity by
statute or otherwise, including but not limited to immunity as provided
in R.S. 23:1032, or that the other person’s identity is not known or
reasonably ascertainable.

C. Interruption of prescription against one joint tortfeasor is
effective against all joint tortfeasors.

In Dumas v. State ex rel. Department of Culture, Recreation & Tourism, 02-

0563 (La. 10/15/02), 828 So.2d 530, the supreme court considered a case in which the

family of a man who died following a bicycle accident brought a wrongful death and

survival action against the State, alleging that the bicycle accident was caused by a

roadway defect. In an amended answer, the State alleged that the medical negligence

of the hospital where the victim was treated was the sole cause of his death. The

plaintiffs filed a motion to strike the amended answer and asserted that the allegations

of any subsequent negligence were immaterial and irrelevant and arguing that the

original tortfeasor was the legal cause of any injury arising from subsequent medical

treatment. The trial court granted the motion to strike. The first circuit affirmed. The

supreme court granted the State’s writ application and reversed the granting of the

motion to strike in light of Articles 2323 and 2324. The court explained:

Article 2323 provides that “[i]n any action for damages . . ., the degree
of percentage of fault of all persons causing or contributing to the
injury, death, or loss shall be determined, regardless of whether the
person is a party to the action or a nonparty . . . . The [foregoing]
provisions . . . shall apply to any claim . . . asserted under any law or
legal doctrine or theory of liability, regardless of the basis of liability.”
(Emphasis added.) Thus, this article clearly requires that the fault of
every person responsible for a plaintiff’s injuries be compared, whether
or not they are parties, regardless of the legal theory of liability asserted
against each person.

6

Likewise, the language of Article 2324(B) is equally clear. It
provides that, in non-intentional cases, liability for damages caused by
two or more persons shall be a joint and divisible obligation. Each joint
tortfeasor shall not be liable for more than his degree of fault and shall
not be solidarily liable with any other person for damages attributable
to the fault of that other person. This provision abolishes solidarity
among non-intentional tortfeasors, and makes each non-intentional
tortfeasor liable only for his own share of the fault, which must be
quantified pursuant to Article 2323.

In this case, the State alleges that a portion of the damages sought
by plaintiffs was caused by medical malpractice on the part of the health
care provider treating Mr. Dumas for the injuries he sustained in the
bicycle accident. Pursuant to Article 2323, the fault of both the State
and the allegedly negligent health care providers should be determined
notwithstanding the fact that the health care providers are nonparties.
Under Article 2324(B), if a jury determines that both the State and the
health care providers negligently injured Mr. Dumas and plaintiffs, then
the liability between them will be a joint and divisible obligation, they
will not be solidarily liable, and each joint tortfeasor will be liable only
for his portion of fault. The comparative fault article La.C.C. art. 2323,
makes no exceptions for liability based on medical malpractice; on the
contrary, it clearly applies to any claim asserted under any theory of
liability, regardless of the basis of liability. There is no conflict between
either Article 2323 or Article 2324(B) and the Medical Malpractice Act
that could be fairly classified as “absurd.” Accordingly, we find the
clear language of Articles 2323 and 2324(B), applied as written, leads
to the inescapable conclusion that the State in this case must be allowed
to put on evidence related to the health care provider’s alleged fault as
part of its defense. While we recognize that these articles, which
substantially impede the ability of an injured party to obtain full
recovery of his damages, are in derogation of established rights and are
to be strictly construed, Touchard, 617 So.2d at 892, we simply cannot
construe their unmistakably clear language in a contrary manner without
overstepping our role as jurists.

Id. at 537-38 (footnotes omitted).

While Dumas addressed the apparent expansiveness of Articles 2323 and 2324,

it did not address the apparent conflict between the dismissal of the case anticipated

by Article 642 and Article 2323’s requirement of apportionment of fault between all

actors. Neither did Dumas involve the question of an actor who is beyond the

jurisdiction of the court due to sovereign immunity. This case involves all of these

elements and presents the challenge of interpreting these seemingly conflicting

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articles in light of one another. See La.Civ.Code art. 13, which instructs that: “Laws

on the same subject matter must be interpreted in reference to each other.” Moreover,

as noted in Dumas, 828 So.2d 530, the judiciary may not disregard the public policy

decisions on which legislation is based, nor may it reweigh the balance of interests

and policies previously struck by the legislature.

The parties’ submissions indicate that, since Bonnette however, the

circumstances surrounding this case have changed. Recall that, in Bonnette, the court

explained that the Tribe was a necessary party due, in part, to the risk of multiple or

inconsistent obligations stemming from the possibility of a proceeding in tribal court.

Subsequently, in a related matter in the United States District Court for the Western

District of Louisiana, the trial court determined that the land on which the hotel was

constructed was not Indian Country until after construction. See Tunica-Biloxi

Indians of Louisiana v. Pecot, 351 F. Supp. 2d 519 (W.D. La. 2004). Thus, the

possibility of tribal court proceedings related to activities during that time period has

been eliminated as has the risk of multiple or inconsistent verdicts/obligations

stemming from these ancillary proceedings.

This case now requires a different analysis than that employed in Bonnette as

the crucial element of the possibility of tribal court proceedings has been eliminated

from the analysis required by La.Code Civ.P. art. 641. Further, when we examine

Article 642(4) in light of this development, it is apparent that there is no longer the

possibility that the plaintiffs “will have an adequate remedy if the action is dismissed

for nonjoinder.” Rather, with this element eliminated, Article 642(3), which asks

“[w]hether a judgment rendered in the person’s absence will be adequate[,]” becomes

central to the analysis. Articles 2323 and 2324 indicate that the legislature has

positively identified a verdict comparatively assessing the fault of all actors as

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adequate. In the present iteration of this lawsuit, Article 642 no longer requires

dismissal of this action against the remaining defendants. The trial court did not err

in denying the defendants’ exceptions.

We also note that there are defendants remaining who contend that their

involvement in this matter stems from injury incurred on tribal property and did not

arise until after the construction of the hotel and, therefore, their involvement is

outside the scope of Pecot, 351 F. Supp. 2d 519. However, we find no error in the

denial of the exceptions of these defendants. Rather, the filings before us do not

indicate that further proceedings are likely, or even possible, against these defendants

in another forum. In this respect, these defendants have not met their burden of

proving entitlement to dismissal under Articles 641 and 642.

DECREE

For the foregoing reasons, the writ applications are denied. Costs of this

proceeding are assessed to the relators. The matter is remanded to the trial court for

further proceedings.

WRIT DENIED. REMANDED.

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