Williams v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 13 June 1977
• Docket Number: No. 11354,11354
• Citation: 349 So.2d 1275
• Parties: James Lawrence WILLIAMS et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
• Court: Court of Appeal of Louisiana — District of US

Page 1275

349 So.2d 1275

James Lawrence WILLIAMS et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.

No. 11354.

Court of Appeal of Louisiana, First Circuit.

June 13, 1977.

Rehearing Denied Aug. 24, 1977.

Writs Refused Nov. 4, 1977.

Paul H. Due, Baton Rouge, for James Lawrence Williams and Mrs. Annie Di Mattia Williams plaintiffs-appellees.

Iddo Pittman, Jr., Hammond, for State Farm Mut. Auto. Ins. Co. defendant-appellant.

A. Clayton James, Jr., Franklinton, for Gregory L. Ballew and Mrs. Dorothy Ballew defendants-appellants.

Joseph F. Keogh, Baton Rouge, for Allstate Ins. Co. defendant.

Before ELLIS, CHIASSON and PONDER, JJ.

ELLIS, Judge:

This is a suit by James Lawrence Williams and Annie Di Mattia Williams for damages arising out of the wrongful death of their son, Roy L. Williams. Defendants are Gregory L. Bellew, Dorothy Bellew, his mother, State Farm Mutual Automobile Insurance Company, their liability insurance company, and Allstate Insurance Company, plaintiff's uninsured motorist insurer. After trial on the merits, judgment was rendered in favor of plaintiffs and against Mr. Bellew, State Farm and Allstate in varying amounts. The suit was dismissed as to Mrs. Bellew. From this judgment, the parties cast have appealed.

The accident happened on December 29, 1974, at the interchange of Interstate Highway 55 and U.S. Highway 190, just west of Hammond, Louisiana. Mr. Bellew, who was driving to his home in McComb, Mississippi, had left I-55 to purchase some gasoline at a filling station in the southeast quadrant of the interchange. In order to return to the interstate, he had to drive about 200 feet east on U.S. 190, make a U turn and head west to the entrance ramp. U.S. 190, in that area is a four lane divided highway, with a grassy median strip. A paved cross over is provided about 200 feet east of the filling station.

Mr. Bellew testified that he looked to his left as he prepared to enter U.S. 190 from the station, and saw a motorcycle under the overpass, about 200 yards to the west, heading east. He stated that he pulled into the right lane of the highway, moved into the left lane almost immediately, and actuated his left turn indicator. As he was making his U turn, his car was struck, on its left rear side, by the motorcycle. The state troopers who investigated the accident fixed the point of collision four and one half feet from the northerly edge of the left hand east bound lane of U.S. 190 and just to the rear of the Bellew vehicle, which came to a halt in the cross over entirely off the traveled portion of the highway.

The only eyewitness to the accident, one of the attendants at the filling station, testified that Mr. Bellew had driven from the station to the cross over in the right hand eastbound lane of the highway, and had started his U turn from that lane, cutting across the left lane to the cross over.

The trial judge believed that the accident happened as related by the attendant, and found that Mr. Bellew was negligent in cutting across the left lane in front of Roy Williams, and that his negligence was the sole proximate cause of the accident.

All defendants allege that the trial court erred in making that finding. They attack the credibility of the gas station attendant, and point to various alleged inconsistencies between the physical evidence and the findings of the trial judge. After a careful review of the record, we find no manifest error in the decision of the trial judge in accepting the testimony of the service station attendant. Although there are discrepancies between the testimony given in his deposition and at trial, he was consistent in his statement that Mr. Bellew made his turn from the outside or right hand lane of traffic. Neither do we find the physical evidence in the case to be inconsistent with the conclusion of the trial judge.

Allstate further claims that the trial court erred in finding that the limits of liability under its uninsured motorist coverage applicable to this accident was $150,000.00 rather than $15,000.00. The policy herein was issued on April 3, 1974, and had no fixed date of expiration. The total premium was $258.00, which was paid in three installments: $103.00 as of the date of issue, $79.00 on July 1, 1974, and $77.50 on September 24, 1974. Under its uninsured motorists coverage the policy provided limits of liability of $5,000.00 for each person and $10,000.00 for each accident. The coverage was $50,000.00 for each person and $100,000.00 for each accident under its liability coverage. The coverage provided to Mr. Bellew under the State Farm liability policy was $10,000.00. It is not contested by Allstate that, because three vehicles were covered under its policy, the total uninsured motorists coverage available thereunder is $15,000.00, and that Mr. Bellew was uninsured or underinsured within the meaning of R.S. 22:1406(D), which at the time of the issuance of the policy, in part, provided:

"D. (1)(a) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits described in the Motor Vehicle Safety Responsibility Law of Louisiana, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage."

"D. (2)(b) For the purposes of this coverage the term 'uninsured motor vehicle' shall, subject to the terms and conditions of such coverage, also be deemed to include an insured motor vehicle when the automobile liability insurance coverage on such vehicle is less than the uninsured motorist coverage carried by the insured."

By Act 154 of 1974, effective August 1, 1974, the above sections were amended to read as follows:

"D. (1) No automobile liability insurance covering liability arising out of the ownership, maintenance or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage or selects lower limits."

"(2) For the purposes of this coverage the term uninsured motor vehicle shall, subject to the terms and conditions of such...