The instant case is a sequel to our recent decision in Daigle v. Clemco Industries, 613 So.2d 619 (La.1993). Daigle repudiates the holding in Schiffman v. Service Truck Lines, Inc., 308 So.2d 824 (La.App. 4th Cir.1974), that a pre-death release of a wrongful death claim is contra bonos mores, and declares that a beneficiary under LSA-C.C. Art. 2315.2 can settle his or her potential wrongful death claim before the injured party dies and such right accrues. We granted writs in the instant case to resolve a related issue not presented in Daigle, supra. The issue presented in the instant case is whether a predeath release executed by both a husband and his wife of all their claims arising out of the husband's personal injuries, but not expressly referring to his death as a potential consequence of the claimed tort, encompasses the wife's subsequently accruing wrongful death claim.
Refining Daigle's holding that such a predeath release is permissible, we add a requirement that the release instrument unequivocally reflect, while not necessarily by express reference, that the parties clearly contemplated a compromise of future wrongful death claims. For the reasons that follow, we find that the release instrument in the instant case does not. We thus reverse the court of appeal's decision dismissing the wife's wrongful death claim and remand.
On February 9, 1979, Buel Brown fell from a drilling rig at the Strategic Petroleum Reserve Project in Bayou Choctaw, Louisiana. Seeking recovery for his injuries, Buel Brown filed suit, naming numerous entities as defendants, but serving only the following named defendants: National Union Fire Insurance Company of Pittsburgh, Pennsylvania; Granite State Insurance Company; The Home Indemnity Company; Pacific Employers Insurance Company; Millers Mutual Insurance Association of Illinois; Harbor Insurance Company; Employers Casualty Company; and Drillers, Inc. (hereinafter collectively referred to as "Defendants"). In 1980, the petition was amended to add as a party plaintiff Buel Brown's wife, Ruth Brown, seeking loss of consortium damages.
In September 1982, Buel and Ruth Brown settled their pending suit. In connection therewith, the parties' attorneys executed a Settlement Agreement, reflecting the terms of the settlement. One of those terms was that upon receipt of the settlement proceeds, both Buel and Ruth Brown would execute a Receipt, Release, Indemnification and Subrogation Agreement in Defendants' favor (hereinafter referred to as the "Release Agreement").
On September 8, 1982, both Buel and Ruth Brown, with the advise and assistance of counsel, executed the Release Agreement. That agreement is the crux of this case, and contains the following recital:
Further, the Release Agreement includes an express indemnity provision, requiring that Buel and Ruth Brown hold harmless, defend and indemnify Defendants for any future claims asserted as a result of Buel Brown's injuries; particularly, Paragraph 3 of the agreement recites that Buel and Ruth Brown:
Still further, the Release Agreement contains a representation by Buel Brown to the effect that he had consulted with his physicians, was advised regarding the prognosis of his injuries, and disclaimed any rights in the event "his condition worsens in the future"; particularly, Paragraph 4 of the agreement states that Buel Brown:
As required by the Release Agreement, the pending lawsuit was dismissed. However, in May 1987, approximately five years after the release instrument was executed, Buel Brown died as a result, at least in part, of the injuries he sustained in the 1979 accident. Ruth Brown then filed the instant wrongful death action on behalf of herself and her minor daughter, Kimberly Brown, against Defendants. Answering that suit, Defendants interposed the release instrument. More particularly, in their answer, Defendants asserted four affirmative defenses: release, indemnity, confusion and set off. Defendants also filed a third party demand against Ruth Brown for indemnification; Defendants alleged that under the indemnity provision of the instrument, Ruth Brown was required to hold harmless, defend and indemnify them for the wrongful death claim she asserted on Kimberly Brown's behalf.
Thereafter, Defendants filed a motion for summary judgment, claiming, among other things, that Ruth Brown's wrongful death claim was barred by the release instrument. Ruth Brown responded by filing her own affidavit. In her affidavit, she attested that "[b]y signing the document, she did not intend to release a future wrongful death claim," and that "[a]t the time she signed the document, she did not think that [Buel Brown] would die from his injuries but would grow old."
Citing the holding in Schiffman v. Service Truck Lines, Inc., 308 So.2d 824 (La.App. 4th Cir.1974), that an anticipatory waiver a wrongful death claim is contra bonos mores, the district court held that Ruth Brown could not have compromised her claim or her minor child's claim for wrongful death before her husband died. While Defendants' application for supervisory writs was pending, we handed down our decision in Daigle v. Clemco Industries, 613 So.2d 619 (La.1993), repudiating the Schiffman holding and declaring that a prospective beneficiary under LSA-C.C. Art. 2315.2 can release his or her future wrongful death claim before the tort victim dies.
Citing Daigle, supra, the court of appeal granted Defendants' application in part,
We granted Ruth Brown's writ application to consider the correctness of that decision. 619 So.2d 557 (La.1993). Based on the following analysis of the codal articles governing transaction and compromise and of the parties' intent as reflected in the release instrument, we find that the instrument does not clearly contemplate a release of future wrongful death claims.
As evidenced by the Release Agreement,
As authorized by LSA-C.C. Art. 3078, Defendants interposed the release instrument here in the same manner that a judgment is interposed to support an exception of res judicata.
While Defendants dispute the latter procedural point, contending that Plaintiff has the burden of proof here, the cases on which they rely involve attempts by plaintiffs to rescind a compromise. Saunders v. New Orleans Public Service, Inc., 387 So.2d 603, 605 (La. App. 4th Cir.), writ denied, 394 So.2d 614 (La.1980); Barnhill v. Consolidated Medical, Disability & Life Trust, 569 So.2d 1115, 1117 (La.App. 3d Cir.1990), writ denied, 572 So.2d 93 (La.1991); Ellison v. Michelli, 513 So.2d 336 (La.App 4th Cir.1987). Those cases stand for the proposition that the burden of establishing the invalidity of a compromise is on the party attacking the instrument.
Shifting back to the codal provisions, LSA-C.C. Art. 3071 further provides that a compromise is a written contract. It follows that the compromise instrument is the law between the parties and must be interpreted according to the parties' true intent. Ritchey v. Azar, 383 So.2d 360, 362 (La.1980); Succession of Magnani, 450 So.2d 972, 975 (La.App. 2d Cir.1984). It also follows that the compromise instrument is governed by the same general rules of construction applicable to contracts.
LSA-C.C. Art. 2046 sets forth a general rule of construction, providing that "[w]hen the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent." LSA-C.C. Art. 2046 (emphasis supplied). The underscored word "further" in this article signifies the true nature of contractual interpretation. The determination that the language contained in a contract is clear and explicit, in itself, involves an interpretive process. For that reason, LSA-C.C. Art. 2046 emphasizes that the process involves no further interpretation, as opposed to no interpretation at all. Expose' Des Motifs of the Project of Titles III and IV of Book III of the Civil Code of Louisiana, p. 67 (1984); R. MacLean, Judicial Discretion in the Civil Law, 43 La.L.Rev. 45, 55-56 n. 28 (1982).
LSA-C.C. Art. 3073 contains a supplementary rule of construction governing the interpretation of the operative language, and the determination of the scope, of a compromise agreement. LSA-C.C. Art. 3073 provides that a compromise agreement extends only to those matters that the parties expressly intended to settle and that the scope of the transaction cannot be extended by implication. See Comment, Compromise in Louisiana, 14 Tul.L.Rev. 282, 283 (1940). More precisely, LSA-C.C. Art. 3073 set forth the following four factors to be considered in determining the scope of a compromise instrument:
We utilize these four factors below as the framework for analyzing the issue of contractual interpretation presented in the instant case.
In applying the rule of construction set forth in LSA-C.C. Art. 3073, courts are guided by the general principle "that the contract must be construed as a whole and in light of attending events and circumstances." Succession of Teddlie, 385 So.2d 902, 904 (La.App. 2d Cir.), writ refused, 393 So.2d 742 (La.1980); LSA-C.C. Art. 2050. Thus, the intent which the words of the compromise instrument express in light of the surrounding circumstances at the time of execution of the agreement is controlling.
The meaning and intent of the parties to a written instrument, including a compromise, is ordinarily determined from the four corners of the instrument, and extrinsic (parol) evidence is inadmissible either to explain or to contradict the terms of the instrument. Maltby v. Gauthier, 526 So.2d 455, 457 (La.App. 5th Cir.), writ denied, 531 So.2d 474 (La.1988); Smith v. Leger, 439 So.2d 1203 (La.App. 1st Cir.1983).
Moak, supra stands for the proposition that when a dispute arises as to the scope of a compromise agreement, extrinsic evidence can be considered to determine exactly what differences the parties intended to settle. Following Moak, a long line of jurisprudence holds that a general release will not necessarily bar recovery for those aspects of a claim not intended by the parties to be covered by the release. Under that jurisprudential rule, the parties to a release instrument are permitted to raise a factual issue as to whether unequivocal language in the instrument was intended to be unequivocal.
Louisiana courts, however, have tempered that jurisprudential rule, recognizing that absent some substantiating evidence of mistaken intent, no reason exists to look beyond the four corners of the instrument to ascertain intent. Duet v. Lucky, 621 So.2d 168, 173 (La.App. 4th Cir.1993). Utilizing a case-by-case, factual analysis, Louisiana courts have limited the rule's application to cases in which substantiating evidence is presented establishing either (1) that the releasor was mistaken as to what he or she was signing, even though fraud was not present; or (2) that the releasor did not fully understand the nature of the rights being released or that the releasor did not intend to release certain aspects of his or her claim. Higgins v. Spencer, 531 So.2d 768, 772 (La.App. 1st Cir.), writ denied, 532 So.2d 106 (La.1988). When the factual circumstances surrounding the execution of the release instrument do not fall within either of the above categories, Louisiana courts, applying LSA-C.C. Art. 2046's general rule of construction, have not hesitated to confine their analysis to the four corners of the instrument.
Briefly, the parties' contentions regarding the scope of the release instrument are as follows.
Plaintiff suggests that we adopt a blanket rule that a future wrongful death claim can be released (or subject to an indemnity obligation)
Alternatively, Plaintiff contends that the release instrument is, at best, ambiguous as to whether the parties intended to include future wrongful death claims within its scope. In support of this contention, Plaintiff relies on three things. First, Defendants failed to include in the release instrument, which they drafted, a reference either generally to death as a potential outcome of the claimed tort, or particularly to wrongful death claims. Second, Defendants failed to obtain, and to include in the instrument, a release of the wrongful death claim of the other potential beneficiary, Kimberly Brown, the couple's minor child. And, third, Plaintiff's affidavit in which she attests to her contrary intent. Plaintiff submits that had Defendants wished to broaden the release to include wrongful death claims, it was incumbent upon them to so specify. Citing LSA-C.C. Art. 2056's general rule of construction that ambiguities in an instrument are to be construed against the drafter, Plaintiff contends that the ambiguity regarding the inclusion of wrongful death claims should have been resolved against Defendants.
In the further alternative, Plaintiff contends that the court of appeal incorrectly resolved the ambiguity regarding the scope of the release instrument on summary judgment. Citing the jurisprudential rule, discussed above, Plaintiff argues that such ambiguity must be correctly resolved on remand based on extrinsic evidence.
Conversely, Defendants contend that Plaintiff's request that this court adopt a blanket requirement of expressly mentioning in the release instrument the talismanic term wrongful death is contrary to LSA-C.C. Art. 3073's express authorization for the differences settled to be explained in a "general" manner. Defendants urge that under that article, parties are not required to give a laundry list of claims subject to a settlement. In accordance with LSA-C.C. Art. 3073's express authorization for general recitals, Defendants contend that they drafted the release instrument as broadly as possible to reflect the parties' intent that Defendants "buy their peace" as to all claims arising out of the claimed tort.
Defendants further contend that the language in the release instrument is express and unequivocal, covering any and all—existing and future—claims, rights of action or demands relating to Buel Brown's injuries. As Ruth Brown's wrongful death action is a claim relating to Buel Brown's personal injuries, Defendants urge that it is encompassed within that all-encompassing language. Defendants contend that, contrary to Plaintiff's optimistic attestations, the language in the instrument reflects the parties' intent to settle wrongful death claims just as it does their intent to settle claims arising from any other worsening of Buel Brown's personal injuries. Defendants emphasize that Plaintiff signed
Defendants still further contend that LSA-C.C. Art. 2046's general rule of construction and the interpretive jurisprudence under it, holding that a releasor is bound by the unequivocal language of the release instrument he signed, are controlling. Defendants thus urge that the parties' subjective intent is subsumed within the written release instrument and that the court of appeal correctly declined to look beyond the four corners of the instrument in determining that the parties' intent, as reflected in the instrument, was to compromise Plaintiff's future wrongful death claim.
To place our analysis of the issue of contractual interpretation presented here in context, we begin by setting forth a basic distinction between the tort victim's personal injury action and his or her beneficiaries' wrongful death action under LSA-C.C. Art. 2315.2. Our jurisprudence, as Plaintiff correctly points out, holds that these are legally separate and distinct actions. Taylor v. Giddens, 618 So.2d 834, 840 (La.1993); Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383, 1387 (La.1993); Guidry v. Theriot, 377 So.2d 319 (La.1979). Although both of these actions stem from a common tort, and thus from common factual allegations, under Louisiana law, "the rights arising in instances of this nature are not a single right of action but two separate and distinct actions." Guidry, 377 So.2d at 322. Indeed, these actions arise at different times and compensate different parties for different injuries.
The tort victim's personal injury action arises simultaneously with the claimed tortious occurrence and compensates for those injuries which are peculiar and personal to the tort victim. Guidry, supra; Knight v. Samuel, 447 So.2d 587 (La.App. 3d Cir.), writ denied, 449 So.2d 1349 (La.1984). In stark contrast, the beneficiaries' wrongful death action, by definition, comes into existence upon the tort victim's death and "serves to compensate a legislatively created class of persons for the loss occasioned by the wrongful killing of the decedent." Knight, 447 So.2d at 593-94; Daigle, 613 So.2d at 623 (citing Guidry, supra). The beneficiaries' action encompasses their damages suffered from the moment of the tort victim's death and thereafter. Taylor, 618 So.2d at 840; Guidry, 377 So.2d at 322. The beneficiaries' action compensates them for their own personal losses, both economic and emotional, suffered as a result of the tort victim's death. Williams, 611 So.2d at 1387.
In Guidry, supra, we recognized that a necessary corollary of this basis distinction is that the tort victim lacks the power to compromise the beneficiaries' potential wrongful death action because that action "never existed or arose in favor of the victim." 377 So.2d at 326. A contrary rule, we explained, would have the following effect:
Id. at 322.
The rule in Louisiana, however, has long been established: "It was rather early recognized [in Louisiana] that the victim's compromise of his action and release of the defendant does not bar a wrongful death action by the beneficiaries against the same defendant on the same issues." H. Johnson, Death on the Callais Coach: The Mystery of Louisiana Wrongful Death and Survival Actions, 37 La.L.Rev. 1, 47 (1976); Johnson v. Sundbery, 150 So. 299 (La.App. 1st Cir.1933);
With that historical backdrop in mind, we return to the contractual interpretation issue presented in the instant case. The issue presented here is whether the language employed in the release instrument reflects that the parties clearly comprehended, in light of the surrounding circumstances, a release of future wrongful death claims.
When, as here, the parties dispute exactly what claims were clearly contemplated to be covered by a release, the jurisprudential rule allowing consideration of extrinsic evidence to determine the parties' intent would ordinarily, as Plaintiff contends, be invoked and thus dictate that we remand for consideration of such extrinsic evidence.
Utilizing the four factors set forth in LSA-C.C. Art. 3073, we find that the release instrument does not encompass future wrongful death claims.
(i) Transactions regulate only the differences which appear clearly to be comprehended in them by the intention of the parties:
The code provides that a compromise covers only those matters "clearly" contemplated by the compromise instrument. Under the code, the release instrument here can be construed as precluding Plaintiff's wrongful death action only if the parties clearly contemplated that the release would cover that future action. Neither the district court nor the court of appeal considered this contractual intent issue, relying instead on Schiffman, and Daigle, respectfully. In both of those cases, however, the release instrument expressly referred to death claims.
Turning to the wording of the release instrument here, it lacks reference either generally to death as a potential outcome of the claimed tort, as in Schiffman, or specifically to wrongful death claims, as in Daigle. In their attempt to bring Ruth Brown's wrongful death claim within its terms, Defendants thus must rely on one or more of the following general recitals in the Release Agreement:
The latter disclaimer, as pointed out in oral argument, obviously is directed solely at Buel Brown's personal injury claims and is thus inapposite. As to the former two general recitals, these, by their express terms, cover all claims arising out of Buel Brown's personal injuries. The issue before us thus can be narrowed to whether these general recitals are sufficient to clearly express the parties' intent that the release instrument cover Ruth Brown's future wrongful death claim.
(ii) Transactions can "be explained in a
general or particular manner":
The code also provides that the differences settled by a compromise can be recited in a general manner. Plaintiff nonetheless contends that the strong emotional overtones inherent in the execution of anticipatory releases of wrongful death claims dictate that this court adopt a blanket express waiver requirement.
Continuing, Defendants cite as controlling the test enunciated in Daigle that "the compromise of a prospective wrongful death claim has res judicata effect if there is no error, fraud, duress or undue influence which vitiates the consent of the potential wrongful death beneficiary." 613 So.2d at 620-21. Applying that test, Defendants emphasize that no vice of consent is either alleged or present here—Plaintiff was represented by counsel throughout, indeed the same counsel still represents her; Plaintiff received substantial compensation; and the release instrument was executed almost three years post-accident, and five years pre-death. It follows, Defendants contend, that Daigle's authorization of anticipatory releases of wrongful death claims, coupled with LSA-C.C. Art. 3073's authorization of general recitals of the differences settled, leads to the inescapable conclusion that the general recitals of the release instrument cover Plaintiff's wrongful death claim.
We agree with Defendants' contention that Daigle disposes of Plaintiff's argument that anticipatory releases of wrongful death actions should be treated differently than releases of other future actions, and thus decline Plaintiff's invitation to adopt an express waiver requirement. We disagree, however, with Defendants' further contention that Daigle compels a conclusion that the general recitals in the release instrument encompass Plaintiff's future wrongful death action.
Even when valid, releases of future actions are narrowly construed to assure that the parties fully understand the rights released and the resulting consequences. As a result, if the release instrument leaves any doubt as to whether a particular future action is covered by the compromise, it should be construed not to cover such future action.
The underlying rationale for the special treatment accorded releases of future actions is succinctly stated as follows: "[w]herever a bargain is intended to operate in the future as an exemption from liability the courts apply more stringent rules of interpretation, partly because the chances are smaller that the parties have adverted to this very cause of action, and partly because these contracts tend to be against public policy." 15 W. Jaeger, Williston on Contracts § 1825, pp. 479-80 (3d Ed.1972).
That the parties probably did not advert to the wrongful death action in entering the release instrument is supported by both the facts and the state of the law at the time the agreement was executed.
Factually, nothing in the circumstances surrounding the execution of the release instrument suggests that the parties were contemplating Buel Brown's death. To the contrary, no one thought Buel Brown would die from his injuries. Plaintiff attests to this fact in her affidavit. Defendants concede this fact, noting in their brief that at the time the release instrument was executed, Buel Brown's death was not imminent. Indeed, hindsight confirms this fact; Buel Brown lived another five years after the release instrument was executed. This fact is further corroborated by the plain language of the release instrument; while Buel Brown acknowledged in the release instrument that his condition might worsen, the instrument does not mention death as a possible consequence of the claimed tort.
The state of the law at the time the release instrument was executed likewise reflects that the parties did not advert to a future wrongful death action. On September 8, 1982, the prevailing jurisprudence was that neither Buel nor Ruth Brown could compromise a future wrongful death action.
Summarizing, we find that the parties did not clearly contemplate that the release instrument would cover Ruth Brown's future wrongful death action. As established above, the factual and legal circumstances surrounding the execution of the release instrument establish that the parties did not advert to a future wrongful death action in executing the instrument. Moreover, there is no language in the instrument indicating that the parties intended to settle anything other than claims arising out of Buel Brown's personal injuries.
While on this factor, we address Defendants' related contention that under LSA-C.C. Art. 3083, an all-encompassing, general release of "all differences" between the parties—as Defendants characterize the release instrument here—covers all claims, even ones that the parties were not thinking about. See Fidelity & Deposit Co. of Maryland v. Cloy Constr. Co., 425 So.2d 887, 892 (La.App. 1st Cir.1983) (holding that LSA-C.C. Art. 3083 applies to a compromise of "all differences," and LSA-C.C. Art. 3073 applies to a compromise of limited scope).
The jurisprudence construing LSA-C.C. Art. 3083 is sparse. Nonetheless, as Defendants contend, this article has been construed in a handful of cases to mean that a releasor will be bound by the unconditional language of the written release instrument he signed, despite his claims of contrary subjective intent.
In an attempt to resolve this apparent conflict, we retrace LSA-C.C. Art. 3083 back to its source provision. As noted elsewhere, this article is one of the obscurely worded codal provisions designed to illustrate a particular instance in which parties err. 2 M. Planiol, Treatise on the Civil Law § 2301 (La.State Law Inst.Trans.1959) ("Planiol") (discussing the source provision of this article).
Nonetheless, there was no existing wrongful death claim at the time the release instrument was executed that was later discovered; Plaintiff's wrongful death claim did not come
(iii) "The necessary consequence of what is expressed" qualification:
In a further attempt to bring Ruth Brown's wrongful death claim within the ambit of the release instrument, Defendants rely on LSA-C.C. Art. 3073's qualification that even claims not intended to be included in a compromise are nonetheless included if they are a "necessary consequence of what is expressed." Defendants argue that regardless of whether Ruth Brown intended to compromise her wrongful death claim, the release instrument must cover such claim because death was a necessary consequence of Buel Brown's personal injuries, and thus the clear language of LSA-C.C. Art. 3073 renders Ruth Brown's subjective intent to the contrary inconsequential. Plaintiff counters that death is not a necessary consequence of personal injuries.
The jurisprudence interpreting the "necessary consequence" provision of LSA-C.C. Art. 3073 is scant. Nonetheless, from that jurisprudence emerges the following two principles. First, this provision qualifies the general rule that the parties' actual intent is relevant in determining the scope of a compromise. Ravia v. Istre, 600 So.2d 812, 814 (La.App. 3d Cir.1992); Ingram Corp. v. J. Ray McDermott & Co., 698 F.2d 1295, 1321 (5th Cir.1983). Second, "[a]ll necessary consequences of what is expressed in the [a]greement, must be reflected within the four corners of the instrument." Pat O'Brien's Bar, Inc. v. Franco's Cocktail Products, Inc., 615 So.2d 429, 432 (La.App. 4th Cir.), writ denied, 617 So.2d 909 (La. 1993).
Applying those principles to the instant case, we find Defendants' reliance on this qualification misplaced. The release instrument, by its express terms, covers only claims arising out of Buel Brown's personal injuries. The wrongful death claim in question is not a necessary consequence of Buel Brown's personal injuries—logically, legally or factually. Logically, as Plaintiff contends, it cannot be said that a necessary consequence of personal injury is death. Legally, as outlined above, claims arising out of a tort victim's personal injuries are separate and distinct from his beneficiaries' wrongful death claim. And, factually, as discussed above, at the time the release instrument was executed, no one thought that Buel Brown would die as a result of his injuries from the accident in question.
A more basic deficiency in Defendants' argument that the wrongful death action is a necessary consequence of what is expressed in the release instrument is that it would require we read into the instrument, which states that it covers all claims arising out of Buel Brown's personal injuries, a statement that it covers all claims arising out of the claimed tort. The latter verbiage, unlike the actual verbiage in the release instrument, has been construed in other states as clearly evidencing an intent to compromise all claims arising from a common tort, including both the tort victim's personal injury action and the beneficiaries' subsequently arising wrongful death action. F.W. Woolworth Co. v. Todd, 204 Okla. 532, 231 P.2d 681 (1951).
(iv) Transactions do not extend to differences which the parties never intended to include in them:
Defendants' final attempt to bring the wrongful death claim within the scope of the differences the parties intended to settle is based on the fact that the only claim Ruth Brown had at the time the release instrument was executed was her wrongful death action. From this premise, Defendants urge that if this future action was not intended to be included within the scope of the release, then Ruth Brown's execution of the instrument would have been a meaningless gesture. We disagree. Defendants overlook the fact that at the time the release instrument was executed, Ruth Brown was a party plaintiff to the pending suit, asserting a claim for loss of consortium, albeit before such claim was legislatively authorized.
This final factor reiterates the important role the intent of the parties plays in determining the scope of compromise agreements in Louisiana; differences which the parties do not intend to settle are unaffected by a compromise agreement. Matthew v. Melton Truck Lines, Inc., 310 So.2d 691, 693 (La.App. 1st Cir.1975). Applying that factor here, we find the release instrument does not extend to Ruth Brown's future, uncontemplated wrongful death action, an action entirely separate and apart from Buel Brown's action for his personal injuries and Ruth Brown's claim for loss of consortium. In so finding, we are not unmindful of the strong policy favoring compromise agreements and finality of settlements. Rivett v. State Farm Fire and Casualty Co., 508 So.2d 1356 (La.1987); Succession of Teddlie, 385 So.2d 902, 904 (La.App. 2d Cir.), writ refused, 393 So.2d 742 (La.1980). The policy favoring compromise agreements, however, cannot defeat the statutorily created rights in favor of survivors of tort victims wrongfully killed. In any event, our holding here, together with our holding in Daigle, permits defendants to conclusively compromise potential wrongful death claims, provided the intent to do so is unequivocally reflected, while not necessarily by express mention of such claims, in the language employed in the release instrument. The release instrument here does not do so.
Since we rule in Plaintiff's favor regarding the interpretation of the release provisions, we must next address the parties' contentions regarding the indemnity provision of that same instrument. Generally, the indemnity provision provides that Buel and Ruth Brown will hold harmless, indemnify and defend Defendants in the event that there be any further claims arising out of Buel Brown's personal injuries by anyone, expressly including his heirs. Defendants submit that Kimberly Brown's wrongful death claim falls squarely within that provision. Defendants further submit that a greater amount was paid in settlement than otherwise would have been paid solely because of the inclusion of that indemnity obligation. To allow Plaintiff to avoid the indemnity obligation for which she was compensated, Defendants urge, would result in her being unjustly enriched. Plaintiff counters that Defendants should not be able to accomplish through the back door via the indemnity provision a release of the minor's wrongful death claim when they could not have accomplished that same result directly without taking the additional step of obtaining court approval.
Our finding renders it unnecessary to address Plaintiff's counter argument regarding Defendants' attempted use of the indemnity provision as a backdoor method of obtaining a release of the minor child's claim. Nonetheless, we note that in jurisdictions, like Louisiana, that have adopted statutory procedures for obtaining minor settlements, defendants should not be permitted to bypass such procedures by the simple expedient of including an indemnity provision in a release instrument executed by the minor's parent.
As to Defendants' argument regarding unjust enrichment, we note that both the courts and commentators have recognized the potential double recovery problem presented in cases like this one. When, as here, the tort victim during his lifetime is compensated, either by judgment or settlement, and after his death his heirs are permitted to pursue wrongful death claims, the potential double recovery problem arises. This problem stems from the overlap between the elements of damages recovered by the tort victim in the earlier action or settlement, and the elements of damages claimed by the beneficiary in the wrongful death action. The solution to this problem, as Defendants acknowledge by asserting the affirmative defense of set-off, is to allow, if warranted, some type of credit.
For the foregoing reasons, we conclude, as a matter of law, that the release instrument was not intended to cover the wrongful death actions asserted by Ruth Brown and Kimberly Brown. We thus reverse the judgment of the court of appeal dismissing Ruth Brown's wrongful death action based on the release instrument; overrule Defendants' motion for summary judgment on their third party demand against Ruth Brown based on the indemnity provision of that instrument; and remand to the district court for further proceedings.
Planiol, supra at § 2301.