1 UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 99-30359

TRANSIT MANAGEMENT OF SOUTHEAST LOUISIANA, INC.; TRANSIT

MANAGEMENT OF SOUTHEAST LOUISIANA EMPLOYEE HEALTH AND WELFARE

TRUST,

Plaintiffs - Appellants

and

TENET HEALTH SYSTEMS HOSPITALS, INC., formerly known as NME

Hospitals, Inc.

Intervenor - Appellant

VERSUS

GROUP INSURANCE ADMINISTRATION, INC.; ET AL.,

Defendants

BANKERS LIFE & CASUALTY COMPANY; ATLANTA LIFE INSURANCE COMPANY;

MAXICARE LIFE AND HEALTH INSURANCE COMPANY; BANKERS LIFE &

CASUALTY COMPANY/GROUP INSURANCE ADMINISTRATION, INC., A Joint

Venture; ATLANTA LIFE INSURANCE COMPANY/GROUP INSURANCE

ADMINISTRATION, INC., A Joint Venture; MAXICARE LIFE AND HEALTH

INSURANCE COMPANY/GROUP INSURANCE ADMINISTRATION, INC., A Joint

Venture

Defendants - Appellees

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WILBUR J. BABIN, JR., also known as Bill

Plaintiff-Appellant

VERSUS

BANKERS LIFE & CASUALTY COMPANY; MAXICARE LIFE AND HEALTH

INSURANCE COMPANY; ATLANTA LIFE INSURANCE COMPANY

Defendants - Appellees2

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WILBUR J. BABIN, JR.

P laintiff - Appellant

VERSUS

BANKERS LIFE AND CASUALTY COMPANY; MAXICARE LIFE AND HEALTH

INSURANCE COMPANY; ATLANTA LIFE INSURANCE COMPANY

Defendants - Appellees

Appeals from the United States District Court

for the Eastern District of Louisiana

August 31, 2000

Before POLITZ, SMITH, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

Th e principal question of Louisiana law presented by this

appeal is whether the life insurance companies which provided life

and stop loss insurance for an employees’ health and welfare plan

may be held vicariously liable to the employer, the employees’

trust, and the plan’s health care providers, for the third party

plan administrator’s wrongful misappropriation of the plan’s funds,

because the life insurers became joint venturers or solidary

ob ligors with the plan administrator by virtue of the written

contracts and course of dealings between the parties. The district

court granted the life insurers’ motions for partial summary

judgment and dismissal of the plaintiffs’ cla ims on the grounds

that the insurance companies had not participated in the wrongful

conduct, entered joint ventures, or otherwise subjected themselves3

to joint or solidary liability for the plan admin istrator’s

misappropriation of funds. We affirm. The evidence educed for

purposes of the motions for partial summary judgment and dismissal

demonstrates that the life insurance companies did not expressly or

impliedly agree to become joint venturers or solidary obligors with

the plan administrator. We also dismiss for lack of appellate

jurisdiction an appeal involving one insurer.

I. Facts and Procedural History

Transit Management of Southeast Louisiana, Inc., operator of

the New Orleans Transit System, and the Transit Management of

Southeast Louisiana Employee Health and Welfare Trus t provide

health and welfare benefits to employees of the transit system.

(hereinafter we refer to the employer and the employees’ trust

collectively as “Transit”). In May of 1988, Transit solicited

proposals for the services and insurance necessary to provide the

transit employees with certain health and welfare benefits. Group

Insurance Administration, Inc., (GIA) and Bankers Life & Casualty

Company (Bankers) submitted a joint proposal representing

themselves to be partners in a joint venture (Bankers/GIA). On

September 1, 1988, Transit contracted with Bankers and GIA for a

health and welfare benefits plan. Under the contract, GIA was to

operate as the third party administrator to admin ister Transit’s

self-insured preferred provider organization (PPO) health program,

and Bankers was to provide the requisite life insurance and stop1 The Atlanta/GIA “joint venture” instrument was identical in

relevant respects to that between Bankers and GIA, except that the

4 loss insurance for the plan. Transit agreed to pay $11.90 per

employee per month as an administrative services fee, $6 of which

was payable to GIA and the remaining $5.90 was payable to Bankers.

GIA would also receive four percent of the insurance premiums

charged by Bankers.

In return for its fixed fee, GIA agreed to administer the

health plan by processing medical claims and paying health care

providers from a GIA bank account into which Transit would deposit

funds after notification by GIA that c laims had been processed.

GIA also agreed to negotiate discounts with the plan’s pr eferred

providers so that Transit could offer the medical benefits at the

lowest possible cost, saving an average of ten percent in medical

discounts and five percent in dental discounts. Transit’s medical

b enefits were self-insured as Transit funded their direct costs

subject to the stop loss insurance coverage for claims that reached

certain high levels.

GIA administered the health plan from 1988 to 1995. In

September of 1991, Atlanta Life Insurance Compa ny (Atlanta) was

substituted for Bankers as the life and stop loss insurer, and in

September of 1993, Maxicare Life and Health Insurance Company

(Maxicare) too k over from Atlanta in this capacity. Bankers,

Atlanta and Maxicare each signed “joint venture” instruments with

GIA. 1 Atlanta also signed an agreement to be bound by the contractentire $11.90 per employee administration fee was payable t o GIA

together with five percent of the insurance premiums earned by

Atlanta. The Maxicare/GIA joint venture instrument included the

same compensation scheme but significantly reduced Maxicare’s

responsibilities.

2 The contract and the joint venture instrument s identify GIA

as the third party administrator of the plan, but the preferred

provider organization was actually administered by another

corporation, GIA of Louisiana, Inc., which is now insolvent and in

Chapter 7 bankruptcy proceedings in the Eastern District of

Lou isiana. Robert H. Carter, III, was the majority (90-95%)

shareholder of both GIA and GIA of Louisiana, Inc., at the time the

contract was executed.

5 to the same extent as had been Bankers. Maxicare did not sign an

amendment to the contract, but it did forward its joint venture

a greement with GIA to Transit and provided the same insura nce

coverage as had Bankers and Atlanta.

GIA agreed in its contract with Transit to administer

Transit’s PPO for a fixed monthly fee per Transit employee and to

provide all services at the least possible cost to Transit and its

employees. However, GIA negotiated with hospitals and physicians

for discounts ranging from fifteen to thirty-three percent and,

without making disclosures to Transit of the true discounts

obtained, retained as its own profit funds repr esenting the

discounts exc eeding the estimated ten percent. 2 Transit alleges

that GIA wrongfully m isappropriated such funds in the amount of

$4,712,024 over the life of the contract pursuant to the

undisclosed discounts scheme. Additionally, GIA was authorized to

draw upon the Transit Lo ss Fund Account only for the purpose of

paying the processed invo ices of health care providers.6

Apparently, however, GIA paid the invoices of providers who were

not in the preferred provider organization, deliberately failed to

pay PPO providers, and improperl y transferred funds due the PPO

providers into GIA’s general operating account and commingled them

with its own funds. Large sums of money were transferred from this

account to affiliates of GIA. As a result, many providers of

health care services in the Transit benefits plan were not paid.

Transit contends that approximately $665,000 of dedicated funds

were improperly diverted under this scheme. Significantly,

however, Transit does not contend that the insurance companies

participated in GIA’s wrongful conduct or scheme, had any knowledge

of them, or received any benefit therefrom.

Transit filed suit in federal court (No. 96-1445) to recover

funds paid to GIA under the contract and asserted claims under

Louisiana state law, the Employee Retirement Income Security Act of

1974, 29 U.S.C. § 1001, et seq. (ERISA), and the Racketeer

Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-68

(RICO). In addition to suing GIA, its holding company, and other

affiliates (GIA, U.S.A., In c.; Robert H. Carter, III and

Associates, Inc.; and Robert H. Carter, III), Transit named as

defendants each of the three life insurers (Bankers, Atlanta, and

Maxicare) as well as each of the three purported joint ventures:

Bankers/GIA; Atlanta/GIA; and Maxicare/GIA. Tenet HealthSystem

Hospitals, Inc. (Tenet), as an unpaid PPO healthcare provider3 Babin claimed that the insurer defendants-appellees are liable

to the creditors of GIA/LA for debts arising out of the

administration of the Transit health plan, and he included a claim

against Bankers regarding a very simi lar arrangement with GIA/LA

rela ting to a purported joint venture to administer and provide

insurance for a health care plan contracted with the Orleans Parish

School Board (OPSB). Babin’s brief on appeal concedes that his

legal arguments regarding the appelle es’ liability are the same

with respect to both the Tr ansit and the OPSB contracts, and he

adopts by reference the legal arguments advanced by Transit on

appeal.

4 Transit does not appeal the district court’s grant of summary

judgment to these defendants and, thus, this matter forms no part

of this appeal.

7 o perating several hospitals, intervened as plaintiff, adopted b y

reference Transit’s allegations in the complaint, and argued that

under Louisiana Civil Code article 1978, it was a third party

beneficiary to the contracts. Tenet averred that it had provided

over $225,000 of uncompensated medical services to Transit

employees and their beneficiaries under the health plan.

Three other suits were consolidated with the one brought by

Transit: (1) an adversary proceeding filed by Wilbur J. “Bill”

Babin, Jr., Trustee in Bankruptcy, in the bankruptcy proceedings of

Group Insurance Administration of Louisiana, Inc. (GIA/LA) in the

United States Ban kruptcy Court for the Eastern District of

Louisia na (No. 96-3165), 3 (2) an adversary proceeding filed by

Babin, as Trustee, against Carter, GIA/USA, and GIA of Illinois,

Inc., asserting claims under the Bankruptcy Code (No. 97-1310); and

(3) a separate suit by Transit against certain GIA insurers (No.

97-1736). 48

The district court, on October 1, 1998, entered an Order and

Reasons ruling on 17 dispositive motions. Among these rulings, the

court denied Transit’s motion for partial summary judgment against

the three life insurers and the three alleged joint ventures on

claims relating to GIA’s improper retention of medical provider

discounts and diversion of funds ad vanced on provider invoices.

None of the parties asserted that ERISA preempted the state law

claims. Considering the plaintiffs’ claims to be Louisiana breach

of contract claims, the district court found that the insurance

companies had not formed any joint venture under Louisiana law and

denied Transit’s motion for partial summary judgment against them.

The district court granted Transit’s partial summary judgment

motion as to GIA after concluding that GIA had breached the

contract. However, the district court’s ruling encompassed only a

finding of liability and did not address damages. Accordingly, the

district court denied GI A’s motion for partial summary judgment

against Transit, and it also denied as moot motions to dismiss the

three purported joint ventures. Likewise, considering Transit’s

RICO claims against the insurers to be based solely on their

alleged vicarious liability as joint venture partners of GIA, the

distric t court granted the insurers’ motions to dismiss the RICO

claims.

Con c luding that Babin, as Trustee of GIA/LA’s bankruptcy

estate, could only prevail against the life insurers if they had5 GIA, GIA/USA, Carter, and Carter Associates are now in

bankruptcy proceedings in the Northern District of Illinois, and

the claims against them have been stayed. As a result, this appeal

does not include any claims against these parties.

9 formed tr ue joint ventures with GIA, the district court granted

motions to dismiss under Rule 12(c), brought by Bankers and Atlanta

regarding Babin’s claims against them.

At this point, Transit and Bankers entered a settlement.

Transit moved again for partial summary judgment against Atlanta

and Maxicare

– this time seeking to impose joint or solidary

liability on them based directly on their express and i mplied

contracts rather than as joint venturers with GIA. Babin filed a

similar motion against all three life insurers. On December 12,

1998, the district court denied these motions based prima rily on

that court’s previous conclusion that no party had ever represented

that the insurance companies would share responsibility for GIA’s

administration of the health plan. The district court granted

Atlanta and Maxicare’s motions for summary judgment rejecting the

claims of Transit and Tenet. Bankers, however, did not file such a

motion with respect to Tenet’s claims. Finally, the district court

dismissed Babin’s claims against the life insurers.

Transit, Tenet, and Babin each filed a timely notice of appeal

from the Federal Rule of Civil Procedure 54(b) final judgment. 5

Although the district court, by a minute entry on February 26,

1999, ordered that Tenet’s claims against Bankers be dismissed,6 Fed.R.Civ.P. 54(b) provides:

When more than one claim for relief is presented in

an action, whether as a claim, counterclaim, cross-claim,

or third-party claim, or when multiple parties are

involved, the court may direct the entry of a final

judgment as to one or more but fewer tha n all of the

claims or parties only upon an express determination that

there is no just reason for delay and upon an express

direction for the entry of judgment. In the absence of

such determination and direction, any order or other form

of decision, however designated, which adjudicates fewer

than all the claims or the rights and liabilities of

fewer than all the parties shall not terminate the action

10 the Rule 54(b) final judgment entered on March 2, 1999, did not

explicitly dismiss those claims or incorporate by re ference the

minute entry. As a result, Bankers contends that there is no final

judgment on the claims and that Tenet’s appeal, as to Bankers, must

be dismissed for lack of appellate jurisdiction.

II. Analysis

1. Appellate Jurisdiction over Tenet’s Claim Against Bankers.

“The courts of appeal...have jurisdiction of appeals from all

final decisions of the district courts of the United States.” 28

U.S.C. § 1291. Typically an order is final only when it “‘ends the

litigation on the merits and leaves nothing for the court to do but

execute the judgment.’” Nagle v. Lee

, 807 F.2d 435 , 438 (5 t h Cir.

1987) (citing and quoting Catlin v. United States

, 324 U.S. 229,

233 (1945)). Where, as here, an action involves multiple parties,

a disposition of the action as to only some of the parties does not

result in a final appealable order absent a certification by the

district court under Federal Rule of Civil Procedure 54(b). 6 S eeas to any of the claims or parties, and the order or

other form of decision is subject to revision at any time

before the entry of judgment adjudicating all the claims

and the rights and liabilities of all the parties.

11 id

. (citing Thompson v. Betts

, 754 F.2d 1243, 1245 (5 th Cir. 1985);

Arango v. Guzman Travel Advisors Corp

., 6 21 F.2d 1371, 1374 (5 t h

Cir. 1980)).

In pertinent part, Rule 4(a)( 1)(A) of the Federal Rules of

Appellate Procedure provides that a notice of appeal “must be filed

with the district clerk within 30 days after the judgment or order

appealed from is entered.” Rule 4(a)(7) makes clear that “[a]

judgment or order is entered within the meaning of this Rule 4(a)

when it is entered in compliance with Rules 58 and 79(a) of the

Federal Rules of Civil Procedure.” Rule 58 requires, inter alia

,

that “[e]very judgment shall be set forth on a separate document.

A judgment is effective only when so set forth and when entered as

provided in Rule 79(a).” Fed.R.Civ.P. 58 (in pertinent part). In

turn, Rule 79(a) requires that all judgments and orders be entered

on the civil docket kept by the clerk of the district court. See

Fed.R.Civ.P. 79(a). “The import of these appellate and civil

procedure rules, taken together, is that to be appealable, any

decree or order must be set forth in a separate document and

entered on the clerk’s civil docket.” T heriot v. ASW Well Service,

Inc ., 951 F.2d 84, 87 (5 th Cir. 1992).

In this case, as Tenet concedes, the March 2, 1999, Rule 54(b)7 Because Rule 54(b) certification is jurisdictional, an appeal

from a judgment that does not address an intervenor’s claim

resolves less than all of the claims asserted and without the

certif ication, the appeal must be dismissed. S ee Borne v. A & P

Boat Rentals No. 4, Inc. , 755 F.2d 1131, 1133 (5 th Cir. 1985); see

also Mathews v. Ashland Chem., Inc

., 703 F.2d 92 1, 922 (5 t h Cir.

1983) (appeal dismissed as premature where the judgment dismissing

12 final order expressly dismissed Tenet’s claims against Atlanta and

Maxicare and did not address Tenet’s claims against Bankers. Tenet

nevertheless mainta ins that we enjoy appellate jurisdiction over

i ts claims against Bankers because a previous minute entry da ted

February 26, 1999, had ord ered the dismissal of those claims,

thereby signifying the district court’s intention to include that

dismissal withi n its subsequent Rule 54(b) determination and

certification. Tenet errs in three respects. First, when, as

here, “the record clearly indicates that the district court failed

to adjudicate the rights and liabilities of all parties, the order

is not and cannot be pres umed to be final, irrespective of the

district court's intent.” W itherspoon v. White

, 111 F.3d 399, 402

(5 th Cir. 1997) (citing Patchick v. Kensington Publishing Corp

., 743

F.2d 675, 677 (9th Cir.1984). Accordingly, as to Bankers there is

not yet a final judgment dismissing Tenet’s claims. Second, the

district court’s failure to explicitly include those claims within

the Rule 54(b) final judgment, even if accidental, operates to

preclude a final appealable order under 28 U.S.C. § 1291 since, as

to those claims, there has been no express certification by the

district court. S ee Lee

, 807 F.2d at 438. 7 Finally, “[a] minuteplaintiff’s claim against one of multiple de fendants was not

entered with the certification required by Rule 54(b)); 10 Charles

Alan Wright et. al., Federal Practice and Procedure § 2660 (3d ed.

1998). As the Rule 54(b) final judgment did not encompass Tenet’s

claims against Bankers, we cannot conclude that the certification

therein vests jurisdiction in this court to review those claims.

8 While, unlike Rule 54(b) certification, the separate document

requirement of Rule 58 is not jurisdictional and may be waived, see

Cook v. Powell Buick, Inc

., 155 F.3d 758, 761 n.8 (5 th Cir. 1998)

(citing Barnhardt Marine Ins. v. New England Int’l Sur. of America

, 961 F.2d 529 (5 th Cir. 1992)), in this case we cannot conclude that

Bankers has waived the requirement since, while acknowledging the

minute entry dismissal, it premised its motion to dismiss this

appeal on the Rule 54(b) final judgment’s failure to expressly

dismiss Tenet’s claims against Bankers. See Theriot , 951 F.2d at

88 (“[U]nder [ B ankers Trust Co. v. Mallis

, 435 U.S. 381, 385 n.6

(1978) ([per curiam] a decision may be appealed without the benefit

of a separate document if, but only if, the district court and the

parties, w ithout objection, intended that the ruling be a final

decision.”); Hanson v. Town of Flower Mound

, 679 F.2d 497, 501 (5 th

Cir. 1982) (“We conclude that we are free to hold that we may take

jurisdiction of an appeal from a ‘final decision under [28 U.S.C.]

§ 1291, even though no separate judgment has been entered, when the

parties fail to raise the issue.”) (citations omitted).

13 entry, although it is a record of the court’s final decision in a

case or of an appealable interlocutory decision, cannot constitute

a ‘separate document’ for the purposes of meeting the Rule 58

requirement.” T heriot

, 951 F.2d at 87 (citing Jones v. Celotex

Corp

., 857 F.2d 273, 275 (5 th Cir. 1988)). 8 Accordingly, we dismiss

as premature this appeal taken from the district court’s minute

entry order dismissing Tenet’s claims against Bankers.

2. Insurers’ Liability.

The appellants base their claims agai nst the appellee life

insurers on three alternate grounds: (1) each life insurer, as a

joint venturer with GIA, is liable for its virile share of the14

damages c aused by GIA, according to the principles of Louisiana

partnership law; or (2) if not a joint venturer in fact, each life

insurer, by virtue of Transit’s justified detrimental reliance upon

the life insurers’ representations of the existence of a joint

venture, is estopped to deny the formation of such a juridical

entity; and (3) each life insurer is jointly or solidarily liable

for the damage caused by GIA because of the obligations assumed

directly in the contracts.

a) Standard of Review.

“We review a grant of summary judgment de novo, applying the

same standard as th e district court.” K apche v. City of San

Anton io , 176 F.3d 840, 842 (5 t h Cir. 1999) (citing Melton v.

Teachers Ins. & Annuity Ass'n of America

, 114 F.3d 557, 559 (5th

Cir.1997)). “Summary judgment is appropriate when the evidence,

viewed in the light most favorable to the nonmoving party, presents

no genuine issue of material fact and shows that the moving party

is entitled to judgment as a matter of law.” I d

. (citing River

Prod. Co., Inc. v. Baker Hughes Prod. Tools, Inc

., 98 F.3d 857, 859

(5th Cir.1996) (in turn citing Fed.R.Civ.P. 56(c)).

b) Joint Venture and Joint Venture By Estoppel.

Under Louisiana jurisprudence the fundamental elements of a

joint venture are generally the same as those of partnership, and,

a ccordingly, joint ventures are governed by the law of9

“ The principal difference between a partnership and a joint

venture is that while a partnership is ordinarily formed for the

transaction of a general business of a particular kind, a joint

venture is usually, but not necessarily, limited to a single

transaction, although the business of conducting it to a successful

termination may continue for a number of years.” R iddle v.

Simmons , 589 So.2d 89, 92 (La.App. 2 nd Cir. 1991).

10 To the extent that Babin, as Trustee, has ass erted claims

belonging to the estate and that are not personal to its creditors,

he has standing to pursue this appeal. S ee Schimmelpenninck v.

Byrne

, 183 F .3d 347, 359 (5 t h Cir. 1999)(claims of generalized

injury to the debtor’s estate ultimately affecting all creditors).

However, his claims against the insurers fail on their merits since

GIA/LA actively devised and executed the wrongful schemes without

the knowledge or participation of the insurers. This is true

whether the insurers would otherwise be lia ble for their virile

share of the losses under partnership law, see La. Civ. Code art.

2809, or solidarily liable for the losses under the law of

15 partnership. 9 S ee

, e.g.

, A ult & Wiborg Co. of Canada v. Carso n

Carbon Co.

, 160 So. 298, 300 (La. 1935); Kelly v. Boh Bros. Constr.

Co., Inc. , 694 So.2d 463, 468 (La.App. 5 th Cir.), writ denied , 700

So.2d 507 (La. 1997), and w rit denied

, 700 So.2d 509 (La. 199 7);

Cajun Elec. Power Coop., Inc. v. McNamara

, 452 So.2d 212, 215

(La.App. 1 s t Cir.), writ denied

, 458 So.2d 123 (La. 1984); Marin e

Services, Inc. v. A-1 Industries

, 355 So.2d 625,627 (La.App. 4 th

Cir. 1978); see also 7 G lenn G. Morris & Wendell H. Holmes,

Louisiana Civil Law Treatise: Business Organizations § 109 and n.2

(1999).

“A partnership as principal obligor is primaril y liable for

its debts. A partner is bound for his virile share of the debts of

the partnership but may plead discussion of the assets of the

p artnership.” La. Civ. Code art. 2817. 1 0 However, neither theconventional obligations, s ee La. Civ. Code art. 1800. In short,

GIA/LA cannot hold liable the insurers for their alleged failure to

implement procedures to safeguard against GIA/LA’s wrongful

conduct.

11 The Louisiana First Circuit developed the followin g seven

element test following requisites of article 2801:

16 “Joint Venture Agreement” label nor its reference to GIA and the

insurers as “partners” is dispositive of the inquiry into whether

or not the appellees were joint venturers. “[T]he legal

relationship of parties will not be conclusively controlled by the

terms which the parties use to designate th eir relationship,

especially with regard to third parties. Courts look to the

totality of evidence and not just to the written agreement between

the parties to determine whether a joint venture was entered into.”

Cajun Elec. Power Coop., Inc

., 452 So.2d at 216 (citing Guilbeau v.

Liberty Mut. Ins. Co.

, 324 So.2d 571 (La.App. 1 st Cir. 1975)); see

also Morris & Holmes, supra , at § 112 (“Despite the rule that the

existence of a partnership depends on the intention of the parties,

it is also well estab lished, perhaps to a fault, that the label

attached by the parties to their relationship will not control

whether it is to be treated, legally, as a partnership.”). Rather,

“[a] partnership is a juridical person, distinct from its partners,

created by contract between two or more persons to combine their

efforts or resources in determined proportions and to collaborate

at mutual risk for their common profit or commercial benefit.” La.

Civ. Code art . 2801. 1 1 While this article reflects the 1980(1) A contract between two or more parties;

(2) A juridical entity or person is established;

(3) Contribution by all parties of e ither efforts or

resources;

(4) The contribution must be in determinate proportions;

(5) There must be joint effort;

(6) There must be mutual risk vis-a-vis losses;

(7) There must be a sharing of profits.

Cajun Elec. Power Coop., Inc

., 452 So.2d at 215; see also Rester v.

Aetna Cas. and Sur. Co.

, 598 So.2d 673, 676 (La.App. 3 rd Cir. 1992)

(same).

17 revision to the partnership title of the Civil Code, it generally

accords with the three-element partnershi p test set forth by the

Louisiana Supreme Court in Darden v. Cox

, 123 So.2d 68 (La. 1960):

First, the parties must have mutually consented to

form a partnership and to participate in t he profits

which may accrue from property, skill, or industry,

furnished to the business in determined proportio ns by

them. Secondly, all parties must share in the losses as

well as the profits of the venture. Thirdly, the

property or stock of the enterprise must form a community

of goods in which each party has a proprietary interest.

Id

. at 71 (citations omitted). Indeed, the “overwhelming majority

of the partnership formation decisions reported since 1960 have

recited some version of the Darden test.” Morris & Holmes, s upra

,

at § 106 (citing authorities). Typical of such recitations is

Riddle v. Simmons

, 589 So.2d 89, 92 (La.App. 2 nd Cir. 1991): “There

must be a sharing of profits and losses with each party having some

right of control over the business.”12 The latest case to so hold was reversed summarily by the

Louisiana Supreme Court, see H artwick v. Hartley

, 598 So.2d 1241,

1242 (La.App. 4 th Cir.), rev

., 604 So.2d 957 (1992)( “Judgment of

the court of appeal is reversed. There is a genuine issue of

material fact. Motion for summary judgment denied. Case remanded

to the district court for further proceedings.”). Thus, while the

concurring opinion in the court of appeal would have premised

application of th e estoppel theory only on justified detrimental

reliance upon representations of the existence of a partnership,

see Hartwick

, 598 So.2d at 1243-44, this ap proach has yet to be

applied i n a majority decision and does not represent current

Louisiana jurisprudence. See Morris & Holmes, supra , at § 1.10.

18 While Louisiana law at least nominally recognizes the

possibility that a person may be estopped to deny the existence of

a partnership that he has represented to exist when he holds

himself out as a partner to the justified detrimental reliance of

a third party, Louisiana courts have refused to apply the estoppel

theory where the alleged partners have not shared in the profits

and losses of a common enterprise. 1 2 S ee Gravois v. New En gland

Ins. Co.

, 553 So.2d 1034, 1039 (La.Ap p. 4 th Cir. 1989) (“even in

[partnership by estoppel] cases, the intent to share profits and

losses is an indispensable element.”); Butler v. Atwood

, 420 So.2d

742, 747 (La.App. 4 th Cir. 1982) (same); see also Morris & Holmes,

supra , at § 1.10.

Applying these principles, we conclude that, because GIA did

not agree to share profits and losses with any of the life insurers

related to any of the contracts between them, none of the life

insurers became a joint venturer with GIA either by agreement or

estoppel. The contract consisted of five sep arate documents19

totaling 400 pages. It incorporated by reference the instruments

designated “Joint Venture Agreement,” which were sequentially

entered int o by Bankers and Atlanta with GIA. As noted

previously, Bankers was a signatory to the contract, Atlanta signed

a letter agreement substituting itself as the life insurer under

the contract, and Maxicare forwarded to Transit a copy of its

“joint venture agreement.” Each “joint venture agreement”

explicitly provided for the distribution of the monthly per

employee fee of $11.90 to be paid by Transit (GIA $6.00, Bankers

$5.90; GIA $11.90, Atlanta $0; GIA $11.90, Maxicare $0) and for the

insurance premiums to be paid to the life insurers with GIA

receiving a four percent brokerage fee from Bankers and a five

percent brokerage fe e from Atlanta and Maxicare. Under these

agreements, GIA would provide all PPO and administrative services,

and the life insurers would provide life and stop loss insurance

coverage at specified rates. Thus it was entirely possible that

GIA could have profited while the insurers lost money, or vice

versa. In sum, there was no agreement to share in profits or

losses, and no evidence was adduced that profits and losses were

actually shared.

The present case is analogous to Payton v. Aetna Life and Cas.

Co. , 299 So.2d 489 (La.App. 4 th Cir.), writ. denied

, 302 So.2d 617

(La. 1974) . In P ayton

, the Louisiana Fourth Circuit considered

whether a roofing contractor and a sheet metal contractor formed a20

joint venture to perform a construction contract entered into with

a general contractor. S ee id

. at 492. The roofing contractor was

injured while working on a job on which he had jointly bid with the

s heet metal contractor, and the sheet metal contractor sought to

avoid pay ing worker’s compensation by arguing that the injured

party was a joint venturer and not its employee or subcontractor.

See id . at 492-93. The court held:

Nevertheless, we cannot conclude that the

relationship between [the sheet metal contractor] and

[the roofing contractor] constituted a partnership or

joint venture. They did not agree to share profits or

losses, but simply agreed that each would perform a

specific portion of the contract at a fixed remuneration

to each party. Apparently, if [the roofing contractor’s]

cost of roofing materials increased, this cost would come

out of his portion of the calculated contract price; and

if [the sheet metal contractor’s] cost of sheet metal

decreased, [he] would receive the entire windfall.

Thus, it was possible that [the roofing contractor]

could lose money on the venture, while [the sheet metal

contractor] ma de a profit. This is contrary to the

essence of a partnership, which contemplates th at all

partners will lose or all partners will profit [, and it]

is fatal to [the sheet metal contractor’s] contention of

the existence of a partnership.

Id . at 493-94.

We agree with and adopt the district court’s well-stated

conclusions: “There is no indication in the contracts or indeed

from the facts of this case that this endeavor was truly a ‘common21

endeavor’ with a common sharing of risks. Each party had

completely separate functions with separate risks: GIA administered

the Plan and the in surance companies provided insurance coverage

for the plan. The insurance companies earned premiums, and GIA

earned th e service fee, as such the funds were not paid to the

alleged joint venture but to GIA and the respective insurer

separately. For instance, GIA paid nothing and risked nothing with

respect to the insurance companies’ provision of stop-loss coverage

for medical insurance o r life insurance.” The district court

likewise concluded that under Gravois v. New England Ins. Co.

, 553

So.2d at 1039, as there was no intent to share profits and losses,

an indispensable element of joint venture by estoppel was lacking.

For the foregoing reasons, under Louisiana law GIA and the

life insurers were not joint venturers and the life insurers are

not estopped to deny the existence of joint ventures.

c) Joint or Solidary Liability Provided by the Contract.

Multiple obligations contained wit hin a single agreement or

contract may be solidary, joint, or several. See La. Civ. Code

art. 1786. “An obligation is solidary for the obligors when each

obligor is liable for the whole performance.” La. Civ. Code art.

1794 (in pertinent part); see also Narcise v. Illinois Central R.R.

Co.

, 427 So.2d 1192, 1194 (La. 1983) (“Coextensive obligations for

the ‘same thing’ create the solidarity of the obligations.”).

However, solidary liability is never presumed; “[a] solidary22

obligation arises from a clear expression of the parties’ intent or

from the law.” La. Civ. Code art. 1796. As the contracts herein

at issue contain no such clear expression of intent, liability is

only solidary for the insurers if they were liable on the contract,

along with GIA, for the whole performance as a matter of law.

The ultimate test of whether an obligor may be held

for the whole or for only a proportionate part of the

obligation is essentially whether the two obligors each

promised the same or full performance or whether each

promised only a different performance, that is to pay a

proportionate part of the liability. Wilks v. Allstate

Insurance Comp any , La.App., 195 So.2d 390; 4 Corbin on

Contracts, sec. 925. When several persons obligate

themselves to the obligee by the terms 'in solido' or use

any other expressions which clearly show that they intend

that eac h one shall be separately bound to perform the

whole of the obligat ion it is called an obligation in

solido on the part of the obligors. W ilks v. Allstate

Insurance Company

, supra ; LSA-C.C. art. 2082.

Several obligations are produced when what was

promised by one of the obligors is not promised by the

other, but each one promises separately for himself to do

a distinct act; such obl igations, although they may be

contained in the same contract, are considered as much

individual and distinct as if they had been in different

contracts and made at different times. LSA-C.C. art.

2087. Nothing more is effected by such contracts than if

each one of the obligors had entered into se parate and

distinct contracts and the relationship between the

parties is kept as separate and distinct as if each had

made a different contract for himself on a different23

date.

Flintkote Co. v. Thomas

, 223 So.2d 676, 678 (La.App. 4 th Cir. 1969).

Additionally, joint liability obtains when the obli gors are

obligated for the same performance, but none is bound for the

whole. See La. Civ. Code art. 1788 (“When different obligors owe

together just one performance to one obligee, but neither is bound

for the whole, the obligation is joint for the obligors.”).

Appellants rely primarily upon Payton

, 299 So.2d a t 494, in

which the court held that, while the roofing subcontractor and a

sheet-metal contractor were not joint venturers, they were

solidarily liable on a construction contract. In P ayton

, all sheet

metal and roofing work was to be provid ed for one set price, the

contractor made all checks payable to both subcontractors, and each

subcontractor intended that they not be paid unless both portions

of the contract were performed satisfactorily; thus it was

immaterial that as between themselves the subcontractors agreed to

perform only specified portions of the contract. See id . at 492-

94. In short, each party was obligated for the entire performance

due under t he contract. S ee id

. at 494. In contrast, in the

present case, each of the “joint venture agreements” delineated the

separate responsibilities assumed by the life insurers and GIA in

satisfying all of the contractual obligations owed to Transit.

Assuming arguendo that, as contended by appellants, the “joint

venture instruments” between GIA and Bankers, Atlanta, and Maxicare13 The duties were to: (1) provide actuarial services; (2)

provide fully insured coverage to Transit members including group

life, accidental death and dismemberment, medical conversion, and

stop loss policies; and (3) provide group life certificates and all

insurance forms for use in administering the lif e and accidental

death and dismemberment programs.

24 were each incorporated into the contracts with Transit, none of the

instruments requires that the whole, or even the same part, of the

obligations due to Transit and its employees be performed by either

GIA or the insurer. The GIA/Bankers “joint venture agreement”

contained a “statement of work” which assigned 22 duties to

Bankers, all of which were related to the provision of the

requisite life and stop loss insurance coverage, whereas GIA

assumed 41 duties, including, among other things, providin g all

required PPO administra t ive services. The GIA/Atlanta “joint

venture agreement” contained a “statement of work” wherein eighteen

duties were assigned to the insurer regarding insurance coverage

and related matters, and a different forty-two duties were assigned

to GIA, including providing PPO services. Finally, the

GIA/Maxicare “joint venture agreement” listed only three duties for

Maxicare, all related solely to insurance coverage. 13 On the other

hand, this agreement assigned forty-two duties to GIA related to

its role as third party administrator of the PPO.

Under the contracts, the life insurers were not obligated to

perform the administrative services required of GIA , and GIA was

not required to provide the req uisite insurance coverage.25

Accordingly, as the insurers were obligated to provide certain

insurance coverage for a certain amount of money in premiums and

GIA was obl igated to perform totally separate administrative

services for a certain amount of money, each to be paid directly by

Transit even if the other failed to perform, and because neither

was obligated to perform the obligations of the other, liability

for the respective obligations of the insurers and GIA is several

rather than solidary. See La. Civ. Code art. 1787 (“When each of

different obligors owes a separate performance to one obligee, the

obligation is several for the obligors.

. . . A several obligation

produces the same effects as a sepa rate obligation owed . . . by

each obligor to an obligee”).

Thus, our conclusion that the insurers and GIA were not each

obligated to render the whole performance due to Transit forecloses

joint liability and sol idary liability, and instead mandates

several liability. Because it is not alleged or argued that the

life insurers participated, aided, or abetted GIA in its breach of

the contract, they cannot be held liable for th e wrongful

misappropriation of funds by GIA which related exclusively to GIA’s

duties to provide all PPO adm inistrative services, including the

payment of claims, at t he least possible cost to Transit.

Accordingly, we conclude that the district court did not err in

granting the life insurers’ motions for partial summary judgment

and dismissal of the solidary liability claims.26 III. Conclusion

For the foregoing reasons, the appeal of Tenet as to its

claims against Bankers is DISMISSED AS PREMATURE, and the judgments

of the district court included in its Rule 54(b) final judgment are

AFFIRMED.