Brummerloh v. Firemen's Ins. Co. of Newark, N. J., 7254

Citation377 So.2d 1301
Decision Date12 November 1979
Docket NumberNo. 7254,7254
PartiesRonnie BRUMMERLOH et al., Plaintiffs-Appellees, v. FIREMEN'S INSURANCE CO. OF NEWARK, N. J., et al., Defendants-Appellants.
CourtCourt of Appeal of Louisiana (US)

William J. Doran, Jr., Baton Rouge, for defendant-appellant-appellee.

Watson, Murchison, Crews, Arthur & Corkern by Ronald E. Corkern, Jr., Natchitoches, Trimble, Randow, Smith & Wilson, James T. Trimble, Jr., Gold, Little, Simon, Weems & Bruser, John F. Simon, Alexandria, for defendant-appellee-appellant.

McKinley & O'Neal, Hodge O'Neal, III, Monroe, for plaintiffs-appellees.

Before CUTRER, STOKER and DOUCET, JJ.

CUTRER, Judge.

This is a suit for damages for personal injuries received by Ronnie Brummerloh; his wife, Sherrie Sue; and their two minor children, Kimberly and Scottie, as a result of a two vehicular accident involving an automobile driven by plaintiff, Ronnie Brummerloh, and a vehicle driven by Tom Elkins.

The accident occurred after dark, shortly past 6:00 P. M., on January 18, 1972, near but inside the western city limits of the City of Natchitoches, Louisiana, on Louisiana Highway 6. There was a misty rain at the time of the accident. Brummerloh was proceeding east along Highway 6 toward Natchitoches, approaching a bridge which spanned a bayou. Brummerloh stated that, as he was so proceeding, another vehicle was approaching with its bright lights on. Brummerloh testified that the bright lights blinded him and he could not ascertain the location of the center line of the highway. As he crossed the bridge, Brummerloh pulled slightly to his right to avoid the possibility of hitting the oncoming car (Tom Elkins' vehicle). Brummerloh stated that as he approached the bridge and the bright lights, he slowed his car to 35 miles per hour. After Brummerloh crossed the bridge, his two right wheels dropped off the pavement into a rut. This caused Brummerloh to lose control of his automobile which swerved into the westbound lane of traffic. His vehicle collided with the Elkins' vehicle, resulting in injuries to Brummerloh, his wife, and their two children.

Several years before the accident, the Highway Department had entered into a maintenance agreement with the City of Natchitoches, which provided for maintenance of certain streets within the Natchitoches city limits, which streets were part of the State highway system. The agreement included Highway 6 up to the city limits.

On May 21, 1971, the Highway Department entered into a construction contract with Louisiana Paving Company for the construction of two additional lanes of travel along Highway 6 and the improvement of the existing two lanes of travel, extending from the Natchitoches By-Pass westerly for a distance of 1.27 miles. This construction program would include the area of the accident.

Suit was filed by Brummerloh, individually, and on behalf of his two minor children. Mrs. Brummerloh also joined as a party plaintiff for damages due to her injuries. Parties defendant were the State of Louisiana Through the Department of Highways (Highway Department); 1 the liability insurers of Tom Elkins, Firemen's Insurance Company of Newark, New Jersey (Firemen's) and Reliance Insurance Company (Reliance); the City of Natchitoches (City); its insurer, Hartford Accident and Indemnity Company (Hartford); and Louisiana Paving Company (Louisiana Paving). The Highway Department, the City and Louisiana Paving filed third party demands against each other, which raised the questions of whether the City and/or Louisiana Paving were responsible for the maintenance of the shoulders of the highway under their respective contracts with the Highway Department. The City also filed a third party demand against Hartford, contending that Hartford owed the City a defense under the insurance contract issued by Hartford to the City.

Prior to trial the claims against Tom Elkins' insurers, Firemen's and Reliance, were compromised and all claims were dismissed as to these parties.

Upon trial of the matter, the trial court rendered judgment in favor of the plaintiffs, and against the Highway Department and Louisiana Paving, in solido. The trial court also concluded that Tom Elkins was negligent and reduced each of the awards by one-third ( 1/3). The plaintiffs' suit against the City and its alleged insurer, Hartford, was dismissed. Judgment was rendered in favor of the City on its third party demand against Hartford, awarding the City attorney's fees for a defense of the suit. All other third party demands were dismissed.

From this judgment, the plaintiffs appealed insofar as it dismisses the plaintiffs' claim against the City and Hartford. Plaintiffs also answered the appeals of the defendants seeking an increase in quantum. Louisiana Paving and the Highway Department appeal the judgment against them. Hartford appeals from the judgment against it for attorney's fees. The City answered the Hartford appeal seeking an increase in attorney's fees.

The issues presented by these appeals are whether the trial court erred in the following respects:

(1) By finding the Highway Department negligent;

(2) By finding that Ronnie Brummerloh was free of contributory negligence;

(3) By finding Louisiana Paving negligent;

(4) By dismissing plaintiffs' claim and the third party demands against the City and its insurer, Hartford;

(5) By awarding attorney's fees to the City against Hartford on the ground that Hartford had a duty to defend the City;

(6) By denying legal interest on attorney's fees awarded the City;

(7) By finding that Tom Elkins was guilty of negligence and thus granting a reduction of the awards;

(8) By awarding inadequate damages.

(1) Liability of the State of Louisiana Through the Department of Highways.

The Highway Department contends that the plaintiffs failed to prove that there existed any condition on the roadway at the time of the accident which was obviously unsafe for a driver using ordinary care. The Highway Department also contends that, in the event such a condition did exist, plaintiffs have failed to prove that the Highway Department had actual or constructive knowledge of same.

In the recent case of Brown v. Louisiana Dept. of Highways, 373 So.2d 605 (La.App. 3rd Cir. 1979), this court set forth the responsibilities of the Highway Department as follows:

"The legal responsibility of the Department as to highway accidents was generally stated by this court in LaBorde v. Louisiana Department of Highways, 300 So.2d 579 (La.App. 3 Cir. 1974), writ denied, 303 So.2d 182 (La.1974) as follows:

'The Department of Highways is not responsible for every accident which occurs on state highways. It is not a guarantor of the safety of travelers thereon, or an insurer against all injury or damage which may result from defects in the highways. The duty of the Department of Highways is only to see that state highways are reasonably safe for persons exercising ordinary care and reasonable prudence. The department is liable for damages only when it is shown (1) that the hazardous condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver, and (2) that the department had notice, either actual or constructive, of the existence of the defect and failed within a reasonable time to correct it.'

Also, see U. S. F. & G. Co. v. State, Dept. of Highways, 339 So.2d 780 (La.1976) and Guin v. State Through Dept. of Highways, 360 So.2d 1185 (La.App. 3 Cir. 1978).

"Included within the Department's duties is the maintenance of the shoulders of the highway in a reasonably safe condition. Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979)."

This accident occurred shortly after 6:00 P. M. on January 18, 1972. Among the first persons to arrive at the scene of the accident was Larry G. Fontenot, an insurance salesman and resident of the City. When he arrived, he went to the cars involved, which were "locked together" in the north (westbound) lane of the highway. When he arrived, the engine of the Brummerloh vehicle was still running and steam was emitting from same. He saw Brummerloh and one child in the car. Mrs. Brummerloh had fallen out of the car and was lying in or near the north ditch.

Fontenot lived just west of the scene at the time of the accident. He traveled the road each day going to and from work. He had previously noticed deep ruts in this area adjacent to the pavement on several occasions. He stated that previously his vehicle dropped off the pavement into ruts in this area and he was aware of such a condition existing in this particular area of the roadway. As to the condition of the south shoulder at the time he arrived at the scene, we quote testimony as follows:

"Q. These ruts, were they there at the time you arrived at the scene of this accident?

"A. Yes, they were.

"Q. Particularly, can you tell us where they started in relation to the bridge and where they ended up, to the best of your recollection?

"A. I don't know, uh, it seemed like right off of the bridge, it wasn't near as bad, but when I got farther down, it seemed like the ruts got deeper and not too far from the bridge, I would say.

"Q. Did these ruts . . .

"A. As best as I can remember.

"Q. Did these ruts extend to the place in the highway where these two vehicles were locked together?

"A. It's seems to me like it was a pretty good ways up the highway. I'd say, uh, a hundred and fifty, two hundred yards, for sure, you know.

"Q. But, from where?

"A. From the bridge.

"Q. To where the ruts ended?

"A. Yes, uh-huh. I don't remember exactly how far the vehicles were from the bridge that night. You know, I was more or less interested in trying to help the people at the time.

"Q. Had you noticed that kind of condition on that highway on previous occasions?

"A. Yes, I did. Almost every time it rained, it seemed to get water standing in the ruts along the edge."

Fontenot...

To continue reading

Request your trial
14 cases
  • 26,887 La.App. 2 Cir. 6/21/95, Williams v. Louisiana Indem. Co.
    • United States
    • Court of Appeal of Louisiana — District of US
    • June 21, 1995
    ...attorney fees due under LSA-R.S. 22:658 are not ascertainable until awarded by the court. See also, Brummerloh v. Firemen's Insurance Company of Newark, 377 So.2d 1301 (La.App. 3d Cir.1979). In Gulf Wide Towing v. F.E. Wright (U.K.), 554 So.2d 1347 (La.App. 1st Cir.1989), the appellate cour......
  • Riley Stoker Corp. v. Fidelity and Guar. Ins. Underwriters, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • July 22, 1994
    ...cost claims against insurers), writ denied, 556 So.2d 36 (La.1990); see also Little, 424 So.2d at 1069; Brummerloh v. Firemen's Ins. Co., 377 So.2d 1301, 1312 (La.Ct.App. 3d Cir.1979). But see Merrick Constr. Co. v. Hartford Fire Ins. Co., 449 So.2d 85, 89 (La.Ct.App. 1st Cir.) (stating tha......
  • Roberts v. State, Through Dept. of Transp. and Development
    • United States
    • Court of Appeal of Louisiana — District of US
    • February 27, 1991
    ...It should likewise be noted that this case is distinguishable from the pre-comparative case of Brummerloh v. Firemen's Insurance Co. of Newark, N.J., 377 So.2d 1301 (La.App. 3rd Cir.1979), relied upon by the trial court in granting L.J. Earnest, Inc.'s motion for summary judgment. In Brumme......
  • Robinson v. State Through Dept. of Transp. and Development, s. 82
    • United States
    • Court of Appeal of Louisiana — District of US
    • July 2, 1984
    ...the DOTD should have known of the hazardous condition; yet it took no action. Louisiana Paving cites Brummerloh v. Firemen's Ins. Co. of Newark, 377 So.2d 1301 (La.App. 3d Cir.1979), and Davis v. T.L. James and Company, 154 So.2d 640 (La.App. 1st Cir.1963), in support of its contention that......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT