noting “[t]he action for indemnity is a separate substantive cause of action, independent of the underlying tort”
How later courts described this case
- noting “[t]he action for indemnity is a separate substantive cause of action, independent of the underlying tort”
- “An action for indemnity is a separate substantive cause of action, arising at a different time, independent of the underlying tort, with its own prescriptive period.”
Written by the judges who cited it.
The opinion
WEIMER, J.,
concurring.
hi concur in the result only. Because prescription does not commence on a claim for indemnity until a party has sustained a loss, either through payment, settlement, or an enforceable judgment, I would hold the indemnity claim is not time barred. See Wiggins v. State, Department of Transportation and Development, 97-0432, p. 7 (La.App. 1 Cir. 5/15/98, 712 So.2d 1006, 1011 ), writ not considered, 98- *960 1652 (La.9/25/98), 726 So.2d 6 (claim for indemnity not governed by or time-barred by the provisions of LSA-C.C.P. art. 1067).
Further, there is a distinction between the right to “claim” indemnity and the right to “collect” indemnity. Generally, a person cannot exercise his right of action until the corresponding cause of action accrues. However, a solidary obligor may exercise his right of action for indemnity before the cause of action accrues. LSA-C.C. art. 1805. Subrogation is the source of indemnification, and “[sjubrogation takes place by operation of law ... [i]n favor of an obligor who pays a debt he owes with others or for others and who has recourse against those others as a result of the payment.” LSA-C.C. art. 1829(3); Wiggins, supra.
Thus, NOAB’s action against ETI is neither premature nor prescribed.