25,770 La.App. 2 Cir. 6/24/94, Sledge v. Continental Cas. Co.
| Decision Date | 24 June 1994 |
| Citation | 639 So.2d 805 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | 25,770 La.App. 2 Cir |
John A. Boatner, Bunkie, for Georgia R. Sledge.
Mayer, Smith & Roberts by David F. Butterfield, Shreveport, for Continental Cas. Co.
Bodenheimer, Jones, Klotz & Simmons by G.M. Bodenheimer, Shreveport, for Cas. Reciprocal Exchange, et al.
Voorhies and Labbe by Cyd Sheree Page, Lafayette, for Jane Sledge.
Before LINDSAY, HIGHTOWER and VICTORY, JJ.
This is a suit instituted by a mother, individually and on behalf of her minor daughter, following a one-vehicle accident in which the child sustained personal injuries and the girl's father died. After the trial judge resolved insurance coverage questions in favor of plaintiffs and a jury decided the factual issues, various litigants appealed. For the reasons hereinafter expressed, we amend the judgment and affirm as amended.
In early June 1990, Randolph Sledge ("Sledge") 1 took his two minor children, Leigh Sledge and James Sledge, two of their friends, and his nephew to the Louisiana State Bar Convention in Destin, Florida for a vacation. To facilitate the trip from Louisiana, Sledge acted through an intermediary, Daniel Scott Brown, a friend of the family, to borrow a Ford Econoline van owned by Dr. Joseph Beard of Shreveport. Although the owner mistakenly believed that the vehicle would only be driven to a nearby location in Arkansas, Sledge had no contact with the owner and allowed Brown to conduct all the arrangements.
After several days in Florida, the vacationers departed for home at approximately 10:30 p.m. on June 9, with Sledge driving. During the return trip, everyone except the driver and his son slept. Finally, about 2:00 or 2:30 a.m., the youth also fell asleep. Later, around 3:00 a.m., Sledge felt tired and asked his 15-year-old son if he could take over the driving chores. Proud that his father had confidence in his abilities, the recently-licensed teenager agreed. Sledge then reclined in the front passenger seat and went to sleep.
Shortly after James began driving, he fell asleep at the wheel, allowing the van to leave the highway in Stone County, Mississippi, continue over a steep embankment and collide with a tree. The resultant impact caused the immediate death of Sledge and seriously injured all other occupants, with those sustained by James apparently being the most significant.
Treatment of Leigh, 11 years old at the time of the accident, required two months in the hospital and another month with her leg in a cast, followed by a period on crutches and undergoing physical therapy. Nevertheless, within seven months, the young girl had fully recovered and resumed her normal activities.
Georgia R. Sledge, individually and as tutrix of her daughter, filed suit alleging that the accident resulted solely from the fault of James, and asserting the father's vicarious liability for the negligence of his minor son. Plaintiffs sued Continental Casualty Company ("Continental"), the insurer of Dr. Beard's van; Casualty Reciprocal Exchange ("Reciprocal"), Sledge's automobile insurance carrier; the Succession of Randolph Sledge; and Jane Lefebvre Sledge, the tutrix of James. The petition sought recovery for Leigh's personal injuries and the wrongful death of her father, along with her mother's incurred medical bills, lost wages, and loss of society with the child.
Eventually, the parties agreed to bifurcate the insurance coverage questions from the remaining issues of the case. Then, based upon an evidentiary stipulation, the trial court rendered a "judgment" declaring James and his father to be insureds under Continental's policy.
After a four-day trial concerning the other aspects, the jury's special verdict reported the following findings:
1) Fault in causing the accident
James Sledge --50%
Randolph Sledge --50%
2) Damages for Leigh Sledge's Personal Injuries
Past and future pain and suffering --$ 60,000.00
Past and future mental pain and suffering --$ 40,000.00
3) Damages for Wrongful Death
Loss of love, affection and society --$247,815.00
Loss of past and future support --$ 50,000.00
One-half of funeral expenses --$ 2,185.00
4) Georgia Sledge's Damages resulting from accident
Loss of society $ 3,000.00
Medical expenses $ 31,878.21
Lost wages $ 5,726.99
Subsequently, the district judge reduced the wrongful death recovery by fifty percent, while awarding total damages with respect to the other claims.
Three separate appeals ensued with plaintiffs, Continental, and Jane Lefebvre Sledge asserting numerous assignments of error. The succession and Reciprocal did not appeal, filing instead only a short brief adopting plaintiffs' arguments on the insurance coverage issues.
In its first two assignments of error, Continental complains that the trial court erred in declaring that the insurer's "Universal Security Policy: Elite," 2 previously issued to Dr. Beard, afforded liability coverage to both James and Sledge. It is argued that, under the factual circumstances involved, two separate provisions of the insurance contract precluded its applicability.
Before examining these arguments, however, we must resolve whether the coverage question has been properly preserved. As noted, the parties litigated the insurance issue separately in accordance with LSA-C.C.P. Art. 1562(D). After its decision, but before the jury trial, the district court granted Continental's motion for "devolutive appeal or the alternatively requested application for supervisory writs." Yet, save the current appeal, the record reveals no other disposition of the matter beyond an extension of time for completing transcriptions. 3 In oral argument, plaintiffs maintain that the first appeal has been abandoned, making the coverage determination final.
Appeals may be taken from "a final judgment" or "an interlocutory judgment which may cause irreparable injury." LSA-C.C.P. Art. 2083. A final judgment is one that determines the merits of the action in whole or in part. LSA-C.C.P. Art. 1841. Further, an exclusive listing of those instances where partial final judgements may be rendered and appealed is provided by LSA-C.C.P. Art. 1915. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234 (La.1993). The earlier coverage decision here, given that it neither causes irreparable harm nor is expressly reviewable under LSA-C.C.P. Art. 1915, constitutes merely an interlocutory judgment presentable for appellate consideration via application for supervisory writs or appeal following adjudication of the remaining issues. Id. Consequently, the coverage dispute continues to be viable, notwithstanding that Continental admittedly abandoned any effort toward supervisory review.
In first contending that James is not a "covered person" under Beard's insurance policy, Continental points to a crucial portion of the contract providing coverage to "[a]ny other person using or occupying your motor vehicle or boat, if there is a reasonable belief that person was permitted to use it." The insurer maintains the trial court erred in finding that the 15-year-old reasonably believed he had permission to drive the vehicle under the circumstances. This argument is unconvincing, however.
Clauses similar to the one relied upon by Continental have been very broadly construed in favor of permission. Francois v. Ybarzabal, 483 So.2d 602 (La.1986); Williams v. Buckelew, 246 So.2d 58 (La.App.2d Cir.1971); Johnson v. Aetna Casualty and Surety Co., 274 So.2d 769 (La.App. 3d Cir.1973). The requirement of "reasonable belief" sets forth
a subjective standard of determining permission, so that a permittee could be covered if he reasonably believed that he had permission of the owner, transmitted through another permittee, whether or not such other permittee had actual authority to transmit permission.
Johnson, supra, at 773. See also Brumfield v. United Services Auto. Assoc., 616 So.2d 876 (La.App. 3d Cir.1993); Building Specialties, Inc. v. State Farm Mutual Auto. Ins. Co., 440 So.2d 984 (La.App. 3d Cir.1983). Such phraseology provides a criterion based on the driver's expectations. Hence, trial court findings of fact in this regard should not be set aside unless clearly wrong or manifestly erroneous. Rosell v. ESCO, 549 So.2d 840 (La.1989).
Continental's primary position centers around a paraphrasing of LSA-R.S. 32:416.1 contained on the reverse side of James's driving license and reading, "Minors--Illegal For Anyone Under 17 to Drive Between 11 P.M.-5 A.M. Mon.-Thurs. and Between 12 A.M.-5 A.M. Fri.--Sun." The insurer argues that this restriction prevented the 15-year-old from "reasonably believing" he could lawfully operate the van at 3:00 a.m. on a Mississippi highway, even though that state directly places no similar constraint on its drivers. Yet the teenager's testimony indicated that, although he knew of the Louisiana limitation, he had no knowledge about the law in other states. To resolve that aspect, James said he relied on his father, a district judge. The youngster reasoned that, had it been illegal, no request would have been made for him to drive.
Continental further contends James could not possibly believe that Beard, an adult he did not know, would have authorized him to drive. The insurer notes testimony by the van owner stating that he...
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