
    Richard A. RIZER & Cherice R. Baldwin, v. AMERICAN SURETY & FIDELITY INS. CO., et al.
    No. 93 CA 1977.
    Court of Appeal of Louisiana, First Circuit.
    April 11, 1995.
    
      S. Alfred Adams, Baton Rouge, for plaintiff-appellant, Richard A. Rizer.
    Kirk A. Patrick, III, Baton Rouge, for defendant-appellee, La. Ins. Guaranty Ass’n.
    Melissa J. Richard, Baton Rouge, for defendant-appellee, State Farm Mut. Auto. Ins.
    Daniel A. Reed, Baton Rouge, for defendant-appellee, United Services Auto Ass’n.
    James E. Moore, Jr., Lafayette, for amicus curiae, Rachel C. Moore.
    Before SHORTESS, CARTER, LeBLANC, PITCHER, and FITZSIMMONS, JJ.
   |2SHORTESS, Judge.

This suit arises from an automobile accident which occurred in March 1990 when a vehicle owned by Gregory W. Baldwin and driven by Jerry W. Boudinot, Jr., collided with a vehicle driven by Richard A. Rizer (plaintiff). In July 1990 plaintiff and his passenger, Cherice R. Baldwin, filed suit against Boudinot’s liability insurer, American Surety & Fidelity Insurance Company (American). American was subsequently ordered into liquidation, and all proceedings were stayed in June 1992.

On August 10, 1992, plaintiff and Baldwin amended their petition to name the Louisiana Insurance Guaranty Association (LIGA) and State Farm Mutual Automobile Insurance Company, Baldwin’s liability insurer, as defendants. On October 27, 1992, more than two years after the accident, they amended the petition to add Boudinot as a defendant.

On January 7, 1993, plaintiff filed a “Second Supplemental and Amending Petition” adding United Services Automotive Association (USAA), his uninsured motorist insurer. The trial court signed an order permitting the amendment on January 12, 1993. USAA then filed an exception of prescription, which was sustained by the trial court. Plaintiff appeals.

Actions against uninsured motorist insurers prescribe two years from the date of the accident absent interruption of the prescriptive period. LSA-R.S. 9:5629. Plaintiffs claim against USAA was filed more than two years after the accident and is prescribed on its face. Plaintiff thus has the burden of proving an interruption of prescription. Younger v. Marshall Indus., 618 So.2d 866, 869 (La.1993).

Interruption of prescription against one solidary obligor is effective against all solidary obligors. La.C.C. arts. 1799 & 3503. Plaintiff contends that American and USAA are solidary obligors and thus his timely suit against American, the tort-feasor’s liability insurer, interrupted prescription 13as to USAA. USAA contends, however, and the trial court found that because the uninsured motorist carrier and the liability carrier “do not owe the same thing,” their obligations are not solidary.

Obligations may be solidary even though the debtors are bound differently from each other, and even if them obligations are subject to different terms and conditions. Williams v. Sewerage & Water Bd., 611 So.2d 1383, 1388 (La.1993); La.C.C. arts. 1797 & 1978. It is the coextensiveness of the obligations for the same debt, and not the source of liability, which determines the solidarity of the obligation. Younger, 618 So.2d at 868 n. 4; Williams, 611 So.2d at 1388.

In Hoefly v. Government Employees Ins. Co., 418 So.2d 575 (La.1982), the supreme court held that an uninsured motorist carrier was solidarily liable with a third-party tort-feasor so that suit against one would interrupt prescription against the other. The court cited former Civil Code article 2091 in defining a solidary obligation: “There is an obligation in solido on the part of the debtors, when they are all obliged to the same thing, so that each may be compelled for the whole, and when the payment which is made by one of them, exonerates the others toward the creditor.”

The supreme court held in Hoefly, and later expounded in Narcise v. Illinois Cent. Gulf Ry. Co., 427 So.2d 1192 (La.1983), Parker v. Southern Am. Ins. Co., 590 So.2d 55 (La.1991), Williams, and Younger, that the sources of the obligors’ debts are irrelevant so long as they are both obliged to the same thing, that is, to repair the same damage. In Williams, the court held that the worker’s compensation carrier and the third-party tort-feasor were solidary obligors because they shared “coextensive liability to repair certain ^elements of the same damage,” i.e., lost wages, medical expenses, and certain death benefits. 611 So.2d at 1387.

In this case, American, the tort-feasor’s liability carrier, and USAA, the uninsured motorist carrier, are both obliged to compensate plaintiff for the same damage, i.e., his personal injuries resulting from the March 1990 accident. That they are contractually liable for different dollar portions of the same damage, i.e., the uninsured motorist insurer is liable to plaintiff only for the amount of his damages above the liability insurer’s policy limits, is irrelevant in determining whether they are solidary obligors. Clearly, American and USAA are solidary obligors, so plaintiffs suit against American interrupted prescription against USAA.

For these reasons, the trial court committed legal error in sustaining the exception of prescription; that judgment is hereby reversed, and this case is remanded to the trial court for further proceedings. All costs of this appeal are assessed to USAA.

REVERSED AND REMANDED.

FITZSIMMONS and LeBLANC, JJ., dissent and assign reasons.

|1LeBLANC, Judge,

dissenting.

I respectfully dissent.

Each insurer, with the tortfeasor, is solidarity obligated to the tort victim; however, the insurers are not co-solidary obligors to each other. I would not extend the distinct solidary relationship of each of the two insurers with the tortfeasor to produce the final leg of the triangle: solidarity between the liability insurer and the UM carrier so that suit against one interrupts prescription against the other.

This lack of solidarity is based on the failure to meet the requirements established by the Civil Code and expounded on in Hoefly v. Government Employees Insurance Company, 418 So.2d 575 (La.1982). Hoefly stated when obligors were solidarily obligated, each may be compelled for the whole. La.C.C. art. 1795; Hoefly, 418 So.2d at 576. In the instant case, this requirement is not met. The obligation of the UM carrier, in its role of providing excess coverage when the tortfeasor is inadequately insured, does not begin until the obligation of the tortfeasor’s insurer is extinguished. Because of the actual existence of the tortfeasor’s liability carrier, the UM carrier may not be compelled for the whole, only for some remaining portion necessary to provide the victim with full recovery. The UM earner, when called upon to perform, may demand that the obligation be divided and the tortfeasor’s liability carrier be required to perform its portion.

This right does not undermine the objective of the legislation to provide the victim with full recovery. It simply provides the UM carrier the benefit of its contractual provisions; i.e., to only be required to provide excess coverage when the tortfeasor is inadequately insured.

12Since I would find no co-solidarity, I would not find interruption of prescription as to USAA by the filing of suit against American Surety.

|1FITZSIMMONS, Judge,

dissenting.

When the Louisiana Civil Code drafters announced that law was a “solemn expression of the legislative will,” they were subscribing to the doctrine of legislative supremacy. Our Louisiana Civil Code provides that “the sources of law are legislation and custom.” La.C.C. art 1. Legislation is defined as “a solemn expression of legislative will.” A custom “results from practice repeated for a long time and generally accepted as having acquired the force of the law.” La.C.C. arts. 2-3. According to civilian doctrine, legislation and custom are authoritative or primary sources of law. They are contrasted with persuasive or secondary sources of law, such as jurisprudence, doctrine, conventional usages and equity, that may guide the court in reaching a decision in the absence of legislation and custom. See Yiannopoulos, Louisiana Civil Law System §§ 31, 32 (1977).

Although these sources of law are the pri-us of all Louisiana legislation, historically, our Constitution and customs envisage that the courts will perform law revision and law adaptation functions in order to maintain the coherency and currency of the law. Nevertheless, in the small proportion of cases in which judicial law-creation is appropriate, such power must be exercised subject to traditional restraints. Analogical development is proper only insofar as it is consistent with, and deepens the aims of the historical forces that motivated adoption of the legislative text. Jurisprudential creation of laws must be in accord with the reasoned development of pre-existing doctrine rather than to express any personal philosophy of the judges. William Thomas Tete, The Code, Custom and the Courts: Notes Toward a Louisiana Theory of Precedent, 48 Tul. L.Rev. 1 (1973). See also Albert |2Tate, Jr., The Law-Making Function of the Judge, 28 La.L.Rev. 211 (1968).

Therefore, rules of law formulated by judicial decisions represent the danger of unforeseen judicial law-making, disregarding the civilian concept that judicial decisions are only interpretations, and that law results from legislation alone. To this end, I respectfully disagree with that specific portion of the Supreme Court’s judicial interpretation of the Louisiana Civil Code articles pertaining to the existence of solidarity among obligors in the cases of Hoefly and Williams. “There is no prescription other than that established by the legislature.” La.C.C. art. 3457.

A solidary obligation for obligors is defined by Louisiana Civil Code article 1794 as an obligation where “each obligor is liable for the whole performance. A performance rendered by one of the solidary obligors relieves the others of liability toward the obligee.” An obligation in solido is never presumed. It must be expressly stipulated by the parties or arise from the law. La.C.C. art. 1796. The articles following the definitional article 1794, do not define solidarity. Those articles describe the legal effects of a finding of solidarity.

The “definition of solidary obligations consists of three elements: multiple debtors; liability of each for the whole debt; and release of all by one’s payment.” Schewe, Bruce V. & Thomas, Martha Quinn, Prescribing Solidarity: Contributing to the Indemnity Dilemma, 41 La.L.Rev. 659, 672 n. 105 (1981), citing Note, The Non-solidness of Solidarity, 34 La.L.Rev. 648, 648 (1974). An obligation is in solido, if, and only if, the obligations under review contain all three elements.

Nevertheless, we have made solidarity complex by consistently distinguishing its very being. A distinction between perfect and imperfect solidarity existed in our jurisprudence before its abrogation by the court in Foster v. Hampton, 381 So.2d 789 (La.1980). Solidarity was perfect, “and the obli-gors mandataries of each other, when by the same act, at the same time, they [bound] | sthemselves to the performance of the same thing. It [was] imperfect ... when they [bound] themselves to the same thing by different acts or at different times.” Gay v. Blanchard, 32 La.Ann. 497, 502 (1880). “Had Louisiana followed a consistent doctrinal scheme in classifying solidary obligations as solidary or not and as perfect or imperfect, the distinction abolished in Foster might have been warranted to preserve doctrinal purity. As a practical matter, the distinction would have been useful in some cases in which parties were bound for the whole but were not bound so intimately that the interruption of prescription by suit against one was justified.” Schewe & Thomas, supra, at 683 (footnote omitted).

Besides interruption of prescription, Hoef-iy avoided discussing the effects arising from a finding of solidarity. “The question of the effect of payment by one debtor” was not explored. Mona Howard Miller, Proportionate Prescription-An Alternative for Applying Changes in Liberative Prescriptive Periods, 43 La.L.Rev. 777, 778 (1983). In Williams, the court found that the partial payment by the employer, to the extent of the obligation owed under worker’s compensation laws, exonerated the debt owed by the tortfeasor to the extent of the payment. Based on this partial payment and partial release, the Williams court found that the requirement that payment by one exonerated all the obligors as to the creditor was met. Williams, 611 So.2d at 1388-89. Why focus on “partial” when the definition found in article 1794 centers on the “whole?” The essential element of solidarity is not partial release by a partial payment, but liability of all for the whole and the release of all by the payment of one. Only in the presence of such an intrinsic relationship of debtors can interruption of prescription be just.

Hoefiy and Williams embarked upon a course to extend prescription by application of solidarity. If prescription needs to be extended to preserve the rights of the plaintiff (id est, to save the plaintiff from a too short prescriptive period for tort), one should note that the general prescriptive period in France was (an absolute) 30 years. Under scrutiny, this period was reduced and ^modified depending on the type of action and the legal relationship existing between the parties.

The whole thrust of the concept of prescription is not to compete with solidarity, but rather to coexist with it. While solidarity will interrupt prescription, this interruption should not be such as to emasculate prescription. The objection against solidarity is akin to the objection posed against suspension of prescription: “that it frustrates the benefit one expects from prescription.” See Aubry & Rau, chapter IV, The Concept of Prescription.

The application of the principles of solidarity to the case before us would not merely “extend” or “interrupt” prescription as to any tortfeasor whose actions netted co-existent harm to the victim, solidarity vis a vis prescription would dilute the true concept of prescription: prescription thus becomes a time line without a term. 
      
      . Louisiana Civil Code article 2091 was amended and reenacted by Acts 1984, No. 331, and is now contained in Civil Code article 1794. The amendment did not change the law.
     
      
      . Shael Herman, The Louisiana Civil Code: A European Legacy for the United States, 18 (1993).
     