599 So.2d 791 (La.App. 1 Cir. 1992), 90 CA 0698, Miley v. Louisiana Farm Bureau Cas. Ins. Co.

Docket Nº90 CA 0698, 90 CA 0699.
Citation599 So.2d 791
Party NameEva MILEY, Individually and on Behalf of Her Deceased Son, Bruce L. Miley v. LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY and George B. McKenzie. CONSOLIDATED WITH Murphy Keith WHEAT, Individually, and on Behalf of His Deceased Wife, Cindee Parker Wheat v. George B. McKENZIE, Individually, and as Administrator of the Estate of His Minor Son, Th
Case DateFebruary 21, 1992
CourtCourt of Appeals of Louisiana

Page 791

599 So.2d 791 (La.App. 1 Cir. 1992)

Eva MILEY, Individually and on Behalf of Her Deceased Son, Bruce L. Miley

v.

LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY and George B. McKenzie. CONSOLIDATED WITH Murphy Keith WHEAT, Individually, and on Behalf of His Deceased Wife, Cindee Parker Wheat

v.

George B. McKENZIE, Individually, and as Administrator of the Estate of His Minor Son, Thomas B. McKenzie, Louisiana Farm Bureau Casualty Insurance Company, State Farm Mutual Automobile Insurance Company, and Estate of Robert R. Fussell.

Nos. 90 CA 0698, 90 CA 0699.

Court of Appeals of Louisiana, First Circuit.

February 21, 1992

Rehearing Denied May 28, 1992.

Writ Denied Oct. 2, 1992.

Page 792

John M. Robin, Covington, for plaintiff-second-appellant Eva Miley.

Dale Branch, Bogalusa, for plaintiff-third-appellant Murphy K. Wheat.

John N. Gallaspy, Bogalusa, for defendants-first-appellants La. Farm Bureau and George B. McKenzie.

Page 793

Before WATKINS, CARTER, LANIER, LeBLANC and FOIL, JJ.

CARTER, Judge.

These consolidated appeals arise out of trial court judgments in suits for damages resulting from an automobile accident in which four people were killed.

FACTS

On July 12, 1986, at approximately 9:40 p.m., Cindee Parker Wheat and Bruce L. Miley were guest passengers in an automobile owned and operated by Robert R. Fussell, an uninsured motorist. The Fussell vehicle was proceeding south on Seven Mile Road. At about the same time, fifteen-year-old Thomas B. (Ben) McKenzie was driving a vehicle owned by his father, George B. McKenzie, west on Louisiana Highway 10 toward the intersection with Seven Mile Road. The McKenzie vehicle was also occupied by a guest passenger, Jason Seal. As the Fussell vehicle attempted to turn left onto Louisiana Highway 10, it was struck by the McKenzie vehicle. As a result of this accident, the occupants of the Fussell vehicle, namely Cindee Parker Wheat, Bruce L. Miley, and Robert R. Fussell, were killed. 1 In the McKenzie vehicle, Ben McKenzie suffered a serious cut on his lip, and Jason Seal, the fifteen-year-old guest passenger, was killed.

On November 17, 1986, Eva Miley filed suit for damages for the death of her son, Bruce L. Miley, against George B. McKenzie and his insurer, Louisiana Farm Bureau Casualty Insurance Company (Farm Bureau). Farm Bureau answered, alleging the negligence of Miley in riding with a driver whom he knew or should have known was intoxicated, and filed a third-party demand against the estate of Robert R. Fussell and against his parents, personally, for having accepted his succession. 2 Miley subsequently amended her petition, naming as additional defendants, James and Nadine Rogers, alleging that their minor son, Lance Rogers, had negligently provided liquor to Ben McKenzie. 3 Miley also requested exemplary damages under LSA-C.C. art. 2315.4 for the alleged intoxication of Ben McKenzie. 4

On November 17, 1986, John H. Fussell and Elta Mae Fussell, individually and on behalf of their deceased son Robert R. Fussell, filed suit for damages against George B. McKenzie and Farm Bureau.

On December 12, 1986, Murphy Keith Wheat, husband of Cindee Parker Wheat, filed suit for damages and for the wrongful death of his wife. Named as defendants in Wheat's petition were: George B. McKenzie, individually and as administrator of the estate of his minor son Ben McKenzie; the Estate of Robert R. Fussell; Farm Bureau, McKenzie's liability insurer; and Allstate Insurance Company (Allstate), Wheat's uninsured motorist insurer. 5 Thereafter, Wheat amended his petition to name as additional defendants James and Nadine Rogers, 6 who filed a third-party demand against the estate of Robert R. Fussell.

Page 794

On January 20, 1987, Jean E. and Charles R. Parker, Cindee Parker Wheat's parents, filed suit for damages and for the wrongful death of their daughter against numerous defendants. Pursuant to a peremptory exception pleading the objection of no right of action, the Parkers' action was dismissed by judgment dated February 24, 1988.

Pursuant to motions to consolidate, these matters were consolidated for trial. After a jury trial, the jury determined that both Ben McKenzie and Robert Fussell were negligent. However, the jury found that, while Fussell's negligence was a cause-in-fact of the damages sustained by Wheat, Miley, and Fussell, McKenzie's negligence was not a cause-in-fact. Moreover, the jury determined that Wheat and Miley were contributorily negligent, which negligence was a cause-in-fact of their respective damages. In allocating fault in the Wheat case, the jury allocated fault as follows:

McKenzie 10% Fussell 85% Wheat 5% In allocating fault in the Miley case, the jury allocated fault in the same proportions. Thereafter, the jury awarded damages to Wheat for only his wife's medical expenses. With the exception of this single item of damage, the jury made no monetary awards to any party for any damages. 7

Page 795

[Entire Page Contains Footnote]

Page 796

Wheat, Miley, and Fussell filed motions for judgment notwithstanding the verdict and, alternatively, for new trials on the grounds that the jury verdict was contrary to the law and the evidence. Thereafter, the trial judge granted plaintiffs' motions and determined that the jury's verdict was inconsistent with regard to its finding that Ben McKenzie's fault was not a cause-in-fact of plaintiffs' damages and its allocation of 10% of the fault to him. However, the trial judge refused to reapportion fault between the parties. The trial judge then awarded plaintiffs damages. Eva Miley was awarded $35,000.00 for the loss of the love and affection of her son, Bruce L. Miley, as well as funeral and burial expenses of $5,038.53. Awards of $20,000.00 and $25,000.00, respectively, were awarded to Elta and John Fussell for the loss of the love and affection of their son, Robert R. Fussell, as well as funeral and burial expenses of $4,410.03. Murphy Keith Wheat was awarded $5,000.00 for the loss of the love and affection of his wife, Cindee Parker Wheat, $35,000.00 for the conscious pain and suffering of Cindee Wheat prior to her death, and $7,150.00 for medical expenses.

By judgment, dated June 14, 1989, the trial court rendered judgment in favor of Miley and against McKenzie and Farm Bureau for $38,036.58, together with legal interest from date of judicial demand plus costs. On June 21, 1989, the trial court signed the judgment in favor of the Fussells and against McKenzie and Farm Bureau for $4,944.10, together with legal interest from judicial demand and costs. 8 On June 26, 1989, the trial court rendered judgment in favor of Wheat and against McKenzie and Farm Bureau for $44,792.50, together with legal interest from date of judicial demand and all costs. The trial court also rendered judgment in favor of Allstate and against Wheat, dismissing the demands of Wheat against his uninsured motorist insurer with prejudice.

From these adverse judgments, McKenzie and Farm Bureau appeal, assigning the following errors:

  1. The trial court erred in granting a Judgment N.O.V. in each of the two cases on appeal, setting aside the jury's

    Page 797

    determination that the negligence of Ben McKenzie was not a cause in fact of the accident.

  2. Alternatively, the trial court erred in disturbing the jury's assessment of damages in favor of Murphy Keith Wheat.

    1. The jury did not abuse its much discretion in finding that Wheat did not sustain compensable damages for loss of love and affection as a result of his wife's death.

    2. The jury did not abuse its much discretion in finding that Wheat did not prove that his wife suffered conscious pain and suffering prior to her death.

    3. Even if the jury was in substantial error, the trial court erred in setting damages at a figure in excess of the discretionary range.

  3. Alternatively, under the authority of Theriot v. Bergeron, 552 So.2d 1 (La.App. 1 Cir.1989), Farm Bureau and McKenzie should only have been cast for 10% of the damages, representing the allocation of negligence to McKenzie.

    Wheat appeals the judgment of the trial court, assigning the following errors:

  4. The trial court erred in failing to hold that the Allstate policy's UM coverage was available to Mr. Wheat.

  5. The trial court erred in failing to award sufficient general damages to Mr. Wheat for the death of his wife.

    Miley also appeals the trial court judgment, assigning the following errors:

  6. The trial court erred in awarding Eva Miley only $38,036.58 in general damages for the death of her son.

  7. Alternatively, if this court determines that the Judgment N.O.V. was improperly granted, the trial court erred in not granting a new trial.

    UM COVERAGE BY ALLSTATE

    Wheat contends that the trial judge erred in failing to find that his uninsured motorist insurance covered his deceased spouse. Wheat reasons that, under the clear terms of the policy, Cindee Parker Wheat was a resident of his household and that, as such, was an insured within the contemplation of the policy of insurance issued to him.

    In Part V of the Allstate policy, under the section entitled "Uninsured Motorists Insurance, Coverage SS," insured persons are described as follows:

    (1) You and any resident relative.

    (2) Any person while in, on, getting into or out of an insured auto with your permission.

    (3) Any other person who is legally entitled to recover because of bodily injury to you, a resident relative, or an occupant of your insured auto with your permission.

    The policy defines resident as "the physical presence in your household with the intention to continue living there." You is defined in the policy as "the policyholder named on the declarations page and that policyholder's resident spouse."

    The plain language of the...

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21 practice notes
  • 701 So.2d 462 (La.App. 1 Cir. 1997), 96 CA 2109, Carbon v. Allstate Ins. Co.
    • United States
    • Louisiana Court of Appeals of Louisiana
    • September 23, 1997
    ...an intent not to return. Bearden v. Rucker, 437 So.2d 1116, 1121 (La.1983); Miley v. Louisiana Farm Bureau Casualty Insurance Company, 599 So.2d 791, 797-798 (La.App. 1st Cir.), writ denied, 604 So.2d 1313 (La.1992). It is a matter of intention and choice, rather than one of location. Beard......
  • 744 So.2d 676 (La.App. 1 Cir. 1999), 98 CA 1814, Scoggins v. Frederick
    • United States
    • Louisiana Court of Appeals of Louisiana
    • September 24, 1999
    ...reasonable inferences of fact should not be disturbed on appeal. See Miley v. Louisiana Farm Bureau Casualty Insurance Company, 599 So.2d 791, 809 (La.App. 1 Cir.), (Lanier, J., concurring in Page 688 part and dissenting in part), writ denied, 604 So.2d 1313 (1992). The trial court in the i......
  • 633 So.2d 944 (La.App. 1 Cir. 1994), 92 CA 0858, Bozeman v. Reed
    • United States
    • Louisiana Court of Appeals of Louisiana
    • March 11, 1994
    ...to article 2324 changed the obligation from in solido to joint liability. Miley v. Louisiana Farm Bureau Casualty Insurance Company, 599 So.2d 791, 806 (La.App. 1st Cir.), writ denied, 604 So.2d 1313 (La.1992). [12] LSA-R.S. 9:2798.1 provides: A. As used in this Section, "public entity......
  • 714 So.2d 792 (La.App. 3 Cir. 1998), 97-958, Lafleur v. Dugas
    • United States
    • Louisiana Court of Appeals of Louisiana
    • May 6, 1998
    ...basis exists to support the lower court's judgment. Put another way, as did the First Circuit in Miley v. La. Farm Bureau Cas. Ins. Co., 599 So.2d 791, 798 (La.App. 1 Cir.), writ denied, 604 So.2d 1313 (La.1992) (emphasis added): [97-958 La. 8] The question is largely one of intention. The ......
  • Request a trial to view additional results
21 cases
  • 701 So.2d 462 (La.App. 1 Cir. 1997), 96 CA 2109, Carbon v. Allstate Ins. Co.
    • United States
    • Louisiana Court of Appeals of Louisiana
    • September 23, 1997
    ...an intent not to return. Bearden v. Rucker, 437 So.2d 1116, 1121 (La.1983); Miley v. Louisiana Farm Bureau Casualty Insurance Company, 599 So.2d 791, 797-798 (La.App. 1st Cir.), writ denied, 604 So.2d 1313 (La.1992). It is a matter of intention and choice, rather than one of location. Beard......
  • 744 So.2d 676 (La.App. 1 Cir. 1999), 98 CA 1814, Scoggins v. Frederick
    • United States
    • Louisiana Court of Appeals of Louisiana
    • September 24, 1999
    ...reasonable inferences of fact should not be disturbed on appeal. See Miley v. Louisiana Farm Bureau Casualty Insurance Company, 599 So.2d 791, 809 (La.App. 1 Cir.), (Lanier, J., concurring in Page 688 part and dissenting in part), writ denied, 604 So.2d 1313 (1992). The trial court in the i......
  • 633 So.2d 944 (La.App. 1 Cir. 1994), 92 CA 0858, Bozeman v. Reed
    • United States
    • Louisiana Court of Appeals of Louisiana
    • March 11, 1994
    ...to article 2324 changed the obligation from in solido to joint liability. Miley v. Louisiana Farm Bureau Casualty Insurance Company, 599 So.2d 791, 806 (La.App. 1st Cir.), writ denied, 604 So.2d 1313 (La.1992). [12] LSA-R.S. 9:2798.1 provides: A. As used in this Section, "public entity......
  • 714 So.2d 792 (La.App. 3 Cir. 1998), 97-958, Lafleur v. Dugas
    • United States
    • Louisiana Court of Appeals of Louisiana
    • May 6, 1998
    ...basis exists to support the lower court's judgment. Put another way, as did the First Circuit in Miley v. La. Farm Bureau Cas. Ins. Co., 599 So.2d 791, 798 (La.App. 1 Cir.), writ denied, 604 So.2d 1313 (La.1992) (emphasis added): [97-958 La. 8] The question is largely one of intention. The ......
  • Request a trial to view additional results