1

United States Court of Appeals,

Fifth Circuit.

No. 94-40307.

Nathan Joseph CORMIER, Jr., et al., Plaintiffs-Appellants,

v.

CLEMCO SERVICES CORP., et al., Defendants.

PAULI & GRIFFIN CO., Defendant-Appellee,

v.

AETNA CASUALTY & SURETY CO., Intervenor Plaintiff-Appellant.

March 29, 1995.

Appeals from the United States District Court for the Western

District of Louisiana.

Before REYNALDO G. GARZA, GARWOOD and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Nathan Cormier appeals the district court's dismissal as time

barred of his Louisiana tort action against the manufacturer of an

allegedly defective item of equipment. We agree with at least one

of Cormier's arguments and vacate and remand.

I.

Nathan Cormier was employed by Meaux Services, Inc. (MSI) as

a sandblaster and painter. In April 1990, MSI sent Cormier to work

on an offshore platform owned by Pennzoil Exploration and

Production Company (Pennzoil). On April 16, Cormier was injured

when his sandblasting hose unexpectedly switched itself on,

blasting him in the leg with a burst of sand. Cormier alleges that

this accident was caused by a malfunctioning "deadman," the device

at the nozzle end of a sandblasting hose that controls the sand
 

1The district court granted summary judgment in favor of

Clemco on December 5, 1991. This Court affirmed summary judgment

in Cormier v. Clemco, 969 F.2d 1559 (5th Cir.1992) (per curiam). 

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flow. When Cormier's attorney tried through a number of informal

means to locate the deadman, he was told by MSI that the deadman

was lost. However, MSI's representatives informed him that the

deadman had been manufactured by a company called Clemco.

MSI's insurer, Aetna Casualty and Surety Company (Aetna),

promptly began to pay Cormier workers' compensation benefits under

the Longshore and Harbor Workers' Compensation Act (LHWCA), 33

U.S.C. § 901 et seq. On February 20, 1991, Cormier filed suit

against, inter alia, Clemco Industries Corporation and Clemco

Services Corporation (collectively "Clemco"). On April 9, 1991,

Aetna intervened as MSI's workers' compensation insurer, claiming

a right to reimbursement out of any award Cormier received. At the

time of its intervention, Aetna was still paying benefits to

Cormier.

In May, 1991, Clemco served a subpoena on MSI demanding

production of the deadman. Evidently aided by this more formal

discovery request, MSI was able to find the hitherto lost deadman.

To the surprise of all parties, the deadman that MSI produced was

not manufactured by Clemco, but by Pauli & Griffin Company (P & G).

On December 6, 1991, Cormier added P & G as a defendant.1

P & G argued that, under La.Civ.Code Ann. art. 3492, Cormier's

cause of action against P & G was prescribed because it had not

been brought within one year of Cormier's injury. Although the

district court denied P & G's pretrial motion for summary judgment,
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the court later dismissed Cormier's complaint as prescribed.

Cormier now appeals the dismissal of his complaint against P & G.

II.

Because Cormier's injury occurred while he was working on the

Outer Continental Shelf off the coast of Louisiana, Cormier's case

is governed by the Outer Continental Shelf Lands Act (OCSLA). 43

U.S.C. § 1331 et seq. Under the OCSLA, Cormier is covered by the

workers' compensation scheme established in the LHWCA and by

Louisiana's tort law. 43 U.S.C. § 1333. As noted above,

Louisiana's one year prescriptive period applies to Cormier's tort

claim against P & G. This period is interrupted when an obligor is

sued by a claimant, La.Civ.Code Ann. art. 3462, or when the obligor

acknowledges liability to the claimant, La.Civ.Code Ann. art. 3464.

When prescription is interrupted for one solidary obligor, it is

interrupted for all solidary obligors. La.Civ.Code Ann. arts. 1799

and 3503.

Cormier argues that Aetna, as the workers' compensation

insurer, and P & G, as the third-party tortfeasor, are solidary

obligors under Louisiana law. Cormier further argues that Aetna

acknowledged Cormier's right to recompense by paying workers'

compensation benefits. Cormier contends that this acknowledgement

interrupted prescription against all solidary obligors, including

P & G. Cormier maintains that because his suit against P & G was

filed within one year of the date of Aetna's payment, his suit is

timely.

A. Aetna and P & G as Solidary Obligors
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Under Louisiana law, a workers' compensation insurer and a

third-party tortfeasor are solidary obligors to an injured

employee. See Williams v. Sewerage & Water Bd. of New Orleans, 611

So.2d 1383 (La.1993). In Williams, the Louisiana Supreme Court

held that an employer and a third-party tortfeasor are solidary

obligors to an employee hurt on the job and explicitly overruled

Maryland v. Fabco, 438 So.2d 1152 (La.App. 1st Cir.1983), which

decided that a workers' compensation insurer and a third-party

tortfeasor are not solidary obligors. P & G contends that a 1987

amendment to La.Civ.Code Ann. art. 2324, post-dating the cause of

action in Williams, changed the relationship from solidary to joint

obligation. P & G relies upon the portion of art. 2324 which

reads:

[L]iability for damages caused by two or more persons shall be

a joint, divisible obligation, and a joint tortfeasor shall

not be solidarily liable with any other person for damages

attributable to the fault of such other person ... regardless

of such other person's ... immunity by statute.

P & G maintains that this language eliminated solidary liability

between third-party tortfeasors and statutorily immune employers.

P & G misunderstands amended art. 2324. Art. 2324 defines

only the relationship between joint tortfeasors—those who are

jointly liable because they are jointly at fault. However, a

workers' compensation insurer is solidarily liable with a

third-party tortfeasor not because they both caused the same

damage, but because they are both obligated to repair the same

damage. See Williams, 611 So.2d at 1387-88 (though employer is

liable under workers' compensation law and third-party tortfeasor
 

2In the event that Cormier eventually receives a judgment,

we do not address the effect that MSI's proportion of fault may

have on Aetna's recovery of benefits it paid under the LHWCA. 

See Gauthier v. O'Brien, 618 So.2d 825 (La.1993). 

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is liable in tort, both are solidary obligors because both must

compensate same injury). See also La.Civ.Code Ann. arts. 1794,

1797 and 1798. Therefore, the narrowing of solidary liability

between joint tortfeasors does not encompass the solidary liability

that arises in Cormier's case. Thus, as to the solidary

relationship between P & G and Aetna toward Cormier, art. 2324 does

not govern.2

In addition, art. 2324 was amended again in 1988 to provide

that "[i]nterruption of prescription against one joint tortfeasor,

whether the obligation is considered joint and divisible or

solidary, is effective against all joint tortfeasors." La.Civ.Code

Ann. art. 2324-C. This 1988 amendment insured that the newly

altered relationship between joint tortfeasors was still subject to

the traditional rule on interruption. P & G's argument that art.

2324-C does not apply because Cormier's employer is not a joint

tortfeasor borders on sophistry. Either Cormier's employer (and

thus, Aetna) is subject to art. 2324 or it is not.

Consequentially, even if art. 2324 changed the relationship between

Aetna and P & G to one of joint liability, Aetna's acknowledgment

would still interrupt prescription as to P & G.

B. Payment of Compensation Benefits as Acknowledgement

In a case almost identical to Cormier's, the Eastern District

of Louisiana held that an employer's voluntary payment of workers'
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compensation benefits interrupted prescription against a

third-party tortfeasor. Billizon v. Conoco Inc., 864 F.Supp. 571

(E.D.La.1994) Like Cormier, Billizon was injured on a platform off

the Louisiana shore and received workers' compensation payments

from his employer under the LHWCA. More than a year after his

injury, Billizon filed suit against a third-party tortfeasor.

Billizon argued that his employer's payment of workers'

compensation had interrupted prescription against the third-party

tortfeasor.

The district court agreed. The court first held that under

Williams, Billizon's employer and the third-party tortfeasor were

solidarily liable. The court next decided that by voluntarily

paying workers' compensation, the employer had " "perform[ed] acts

of reparation or indemnity, [made] an unconditional offer or

payment, or [lulled] the creditor into believing that [the

employer] will not contest liability,' " and thus tacitly

acknowledged Billizon's right to recovery. Id. at 574 (quoting

Lima v. Schmidt, 595 So.2d 624, 634 (La.1992)). The court reasoned

that:

the consequences in law of an employer who has been sued for

workers' compensation do not conceptually differ, then, from

those resulting from an employer's voluntary payment of

compensation benefits in response to an administrative

request. On the contrary, the law should favor such payments,

and should not inspire lawsuits simply as a model to interrupt

prescription.

Id.

The Billizon Court recognized that its decision would allow an

injured employee to file suit against a tortfeasor within one year
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of the employer's last compensation payment, even if that payment

occurred many years after the injury. However, the court explained

that:

[t]he Louisiana Supreme Court has specifically stated that the

common law doctrine of laches does not apply in Louisiana and

that prescription periods are the province of the legislature.

Picone v. Lyons, 601 So.2d 1375, 1377 (La.1992). In that

case, the high court held that interruption of prescription

against all solidary obligors is rationally related to the

state's interest in providing full recovery for tort victims.

Id. at 575.

For several reasons, P & G maintains that Billizon was

wrongly decided. P & G first argues that Aetna's compensation

payments did not acknowledge Aetna's liability for all of Cormier's

damages, but only acknowledged liability for the amount of each

payment as it came due. However, as the Billizon Court correctly

explained, "the liability for workers' compensation is a unitary

obligation for an indeterminate amount, which the law directs shall

be made in a series of regular payments." See 864 F.Supp. at 574-

75. Thus, Aetna's payments constituted acknowledgement of, and

interrupted prescription on, the unitary obligation.

P & G also argues that Aetna's voluntary payments should not

interrupt prescription against P & G because of Aetna's position as

a subrogee of Cormier. P & G contends that, by interrupting

prescription of Cormier's claim, Aetna also preserved its own

opportunity to be reimbursed out of Cormier's recovery. P & G

asserts that this constitutes a conflict of interest between Aetna

and itself and argues that Aetna's acknowledgement should not

interrupt prescription against P & G in such circumstances.
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However, the benefit that a workers' compensation carrier may

ultimately gain from an employee's suit against a third-party

tortfeasor is far too uncertain and remote to regard the

compensation carrier's payment of benefits as a self-serving act

designed to preserve its recovery rights. More importantly,

nothing in Louisiana law, including the Louisiana Supreme Court's

decision in Williams, suggests that acknowledgment by one solidary

obligor interrupts prescription against other solidary obligors

only when their interests are perfectly aligned.

P & G next asserts that, under Louisiana law, payment of

workers' compensation benefits is not an admission of liability,

citing La.Rev.Stat.Ann. § 23:1204. But Aetna did not make its

payments under the Louisiana workers' compensation program covered

by § 23:1204; Aetna paid under the LHWCA. Thus § 23:1204 has no

application in this case.

We essentially agree with the Billizon Court's sound

analysis. Accordingly, we agree that an insurance carrier which

voluntarily pays workers' compensation benefits under the LHWCA

acknowledges the employee's right to these benefits and interrupts

prescription against all solidary obligors.

C. Extent of Interruption

P & G argues finally that, even if Aetna's payments

interrupted prescription against P & G, interruption was only

effective for an amount equal to the extent of the solidary

obligation. While this may have been the law at one time, see

Anderson v. Sciambra, 310 So.2d 128, 131 (La.App. 4th Cir.1975), it
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is no longer the rule after Williams. As Williams emphasized, once

prescription is interrupted for all solidary obligors, "plaintiffs

are free to assert whatever claims they have against the

defendants." 611 So.2d at 1384-85. To hold otherwise would

contravene Louisiana's stated interest in providing tort victims

with a full recovery. See Lyons, 601 So.2d at 1377. We conclude

that Aetna's acknowledgment interrupted prescription on all of

Cormier's claims against P & G.

III.

Because Aetna's payment of LHWCA benefits interrupted

prescription against P & G, we do not reach Cormier's arguments

that the prescriptive period was interrupted by Aetna's

intervention or suspended under the equitable doctrine of contra

non valentum.

The district court's dismissal of Cormier's suit against P &

G is VACATED and the case REMANDED for further proceedings.