Solidarity in Overlapping Insurance Coverage: Rethinking Hoefly

AuthorAlex Robertson
PositionAssociate Attorney at Irwin Fritchie Urquhart & Moore LLC
Pages975-995
Solidarity in Overlapping Insurance Coverage:
Rethinking Hoefly
Alex Robertson*
In for a penny, in for a poundsolidary obligors are treated as one.
As between themselves, a payment to a creditor by one solidary obligor
relieves the others toward that creditor.1 Interruption of prescription as to
one solidary obligor interrupts as to all.2 The effects of solidarity are
powerful and have always been clear, but deciding to whom solidarity
applies has proven cumbersome for Louisiana courts.3
A plain reading of the Louisiana Civil Code suggests that solidarity
arises only when the parties or the law clearly express an intent to bind
obligors in solido.4 The Louisiana Supreme Court in Hoefly v. Government
Employees Insurance Company5 established a three-pronged test whereby
courts could more flexibly invoke the doctrine of solidarity arising from
the law6 to save a plaintiff’s claim from prescription.7 The Hoefly Court’s
holding, however—that a victim’s under- or uninsured motorist (“UM”)
insurer and a tortfeasor were solidarily bound so that prescription was
interrupted as to both8perhaps unwittingly expanded the application of
solidarity.9
Copyright 2017, by ALEX ROBERTSON.
* Associate Attorney at Irwin Fritchie Urquhart & Moore LLC. For her
instruction, which was indispensable to the preparation of this Article, the a uthor
thanks Professor Melissa T. Lonegrass. The author would also like to thank his
wife Felicia and his grandparents, Care y and Shirley, for their unwavering love
and support. The author dedicates this Article to the memory of his father, Andrew
K. Robertson, who instilled in him the ethics and curiosity necessary to undertake
and complete this arduous process.
1. LA. CIV. CODE art. 1794 (2017).
2. Id. art. 3503.
3. See generally Bruce Schewe, Tilting Against Windmills: A Solidary
Rejoinder, 41 LA. L. REV. 1279 (1981) [hereinafter Tilting Against Windmills].
4. LA. CIV. CODE art. 1796.
5. 418 So. 2d 575 (La. 1982).
6. Id. at 577 (“Under Civil Cod e Article 2091, ‘[t]here is an obligation in
solido on the p art 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 th e creditor.’ When an obligation
fulfills this definition and contains these ingredients, the obligation is in solido.”).
7. See discussion infra Part I.B.3.a.
8. Hoefly, 418 So. 2d at 580.
9. See discussion infra Part I.C.
976 LOUISIANA LAW REVIEW [Vol. 77
Although it granted future courts a certain amount of flexibility to
summon the doctrine of solidarity on an ad hoc basis,10 the Hoefly test
created unanticipated and perhaps undesirable consequences. Less than a
year after Hoefly, Justice Blanche criticized the Hoefly Court for
attempting to “salvage[] a particular plaintiff's claim from prescription by
invoking the doctrine of solidarity” without considering what other, “less
palatable effects the application of . . . solidarity would have upon future
claimants.”11 Blanche’s criticisms foreshadowed a line of tort cases in
which an insurer’s coverage obligation overlaps with either a tortfeasor or
another insurer’s liability, sparking litigation over whether parties are
entitled to a credit for payments made under the policy.12 A study of this
line of cases reveals that the application of the Hoefly test suffers from
circular reasoning, irreconcilably conflicts with other Civil Code
principles and Louisiana Supreme Court jurisprudence, is no longer
needed to serve the purposes for which Louisiana adopted solidarity, and
is easily manipulated.
Part I of this Article analyzes the relevant Louisiana Civil Code
articles relating to when solidarity should apply, Louisiana courts’
interpretations of those articles leading up to Hoefly, and the expansion of
the Hoefly test in the insurance context. Part II articulates four possible
defects in the Hoefly test and illustrates each defect with a discussion of
post-Hoefly jurisprudence. Finally, Part III suggests that courts analyze
solidarity arising from the law based on a plain reading of the Civil Code,
requiring the legislature to decide expresslyguided by public policy
which obligors are solidarily bound.
I. LOUISIANAS INTERPRETATION OF SOLIDARITY ARISING FROM THE
LAW AND ITS APPLICATION IN THE INSURANCE CONTEXT
Analyzing only the text of the Civil Code articles concerning solidarity
lends itself to multiple interpretations of when solidarity arises from the law
that is, situations in which parties have not contracted for a solidary
relationship. Indeed, Louisiana courts vacillated over the proper interpretation
until Hoefly established the now-operative three-pronged test. The Hoefly
decision, however, inadvertently portended the extension of solidarity’s
application in the insurance “credit cases.
10. See SAUL LITVINOFF, OBLIGATIONS § 7.61, in 5 LOUISIANA CIVIL LAW
TREATISE 142 (2d ed. 2001).
11. Carona v. State Farm Ins. Co., 458 So. 2d 1275, 1280 (La. 1984)
(Blanche, J., concurring).
12. See discussion infra Part I.C.

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