94 2386 La.App. 1 Cir. 6/23/95, Degruise v. Houma Courier Newspaper Corp.

• Decision Date: 23 June 1995
• Parties: 94 2386 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 580

657 So.2d 580

94 2386 La.App. 1 Cir. 6/23/95

Floyd F. DEGRUISE, et al. v. HOUMA COURIER NEWSPAPER CORPORATION, et al.

No. 94 CA 2386.

Court of Appeal of Louisiana, First Circuit.

June 23, 1995.

Kentley R. Fairchild, Houma, for plaintiffs.

Robert R. McBride, Lafayette and James E. Diaz, Jr., Lafayette, for defendant/appellant.

Before LOTTINGER, C.J., and SHORTESS and CARTER, JJ.

[94 2386 La.App. 1 Cir. 2] CARTER, Judge.

This is an appeal from a trial court judgment in an action for damages arising out of a rear-end collision.

FACTS

On December 18, 1990, petitioner, Floyd F. Degruise, was stopped for a traffic light at the intersection of Louisiana Highway 660 and U.S. Highway 90 in Houma, Louisiana. The vehicle operated by Degruise was owned by his employer, South Louisiana Electric Cooperative Association (SLECA), and Degruise was in the course and scope of his employment at the time of the accident. While stopped at the intersection, the SLECA vehicle was rear-ended by an automobile owned and operated by Diane B. Scott. At the time of the accident, Scott was delivering newspapers for Houma Courier Newspaper Corporation. As a result of this accident, Degruise sustained various injuries.

On October 8, 1991, Degruise and his wife, Della, individually and on behalf of their two minor children, filed the instant petition for damages. Named in their petition were: Houma Courier Newspaper Corporation (Houma Courier), the alleged employer of Scott; Liberty Mutual Insurance Company (Liberty Mutual), the liability insurer of Houma Courier; ¹ Diane B. Scott; American National Agents Insurance Company (American), the liability insurer of the Scott vehicle; ² Federated Rural Electric Insurance Corporation (Federated), the uninsured/underinsured (UM) insurer of SLECA; ³ and Louisiana Farm Bureau Mutual Insurance Company (Farm Bureau), Degruise's uninsured/underinsured (UM) insurer. In a subsequent supplemental and amending petition, petitioners raised a [94 2386 La.App. 1 Cir. 3] claim against Federated pursuant to LSA-R.S. 22:658 for arbitrary and capricious refusal to pay petitioners' UM claim.

On December 13, 1991, SLECA and Federated, as SLECA's worker's compensation insurer, filed a petition of intervention, seeking reimbursement for any and all medical and weekly worker's compensation benefits paid to or on behalf of Degruise. SLECA and Federated subsequently amended the petition of intervention, alleging that the payment of any "UM benefits would be subject to the subrogated claim of Federated as the worker's compensation carrier." By judgment, dated February 25, 1993, the intervention was severed from the principal demand.

On September 1, 1992, Houma Courier filed a motion for summary judgment on the grounds that Scott was not its employee or, alternatively, was not in the course and scope of her employment at the time of the accident. By judgment, dated September 18, 1992, the trial court granted Houma Courier's motion for summary judgment and dismissed petitioners' claims, as well as the cross claims of Farm Bureau and Federated, against Houma Courier.

On September 1, 1992, petitioners filed a motion for summary judgment as to their claims against Federated with regard to the UM coverage. On September 18, 1992, the trial court rendered judgment, granting petitioners' motion for summary judgment and finding that the Federated policy afforded UM coverage of $1,000,000.00. ⁴ On September 9, 1992, petitioners filed a motion for summary judgment against Farm Bureau with regard to the UM coverage. By judgment, dated October 23, 1992, the trial court [94 2386 La.App. 1 Cir. 4] rendered judgment, granting petitioners' motion for summary judgment and finding that the Farm Bureau policy afforded $25,000.00 in UM coverage. ⁵

On January 26, 1993, Farm Bureau filed a motion for summary judgment against Federated, requesting the court to decree that Federated issued to SLECA a commercial umbrella policy which afforded UM coverage with limits of $10,000,000.00. Thereafter, on February 16, 1993, petitioners filed a motion for summary judgment requesting the same relief as was set forth in the Farm Bureau motion. Petitioners' motion for summary judgment was granted on March 1, 1993. ⁶

Prior to trial, the parties stipulated that Federated, as the worker's compensation carrier, paid worker's compensation of $40,809.45 and medical benefits of $18,093.14 for a total of $58,902.59 through June 16, 1994. After a jury trial on the merits, the jury rendered a verdict as follows:

                1)  What award, if any, do you give Floyd Degruise for the following
                a)  Past and present medical expenses:                $   22,000
                b)  Future medical expenses:                          $  190,000
                c)  Past, present and future physical and mental      $  290,000
                      pain and suffering:
                d)  Past, present, and future economic loss and/or    $  600,000
                      earning capacity
                e)  Permanent/Partial disability:                     $  100,000
                    TOTAL                                             $1,202,000
                                                       * * *
                2)  What award, if any, do you award to Della Degruise, Trent Degruise, and
                      Trevor Degruise for their loss of consortium?
                    Della Degruise                                    $   75,000
                    Trevor Degruise                                   $   25,000
                    Trent Degruise                                    $   25,000
                

[94 2386 La.App. 1 Cir. 5] Thereafter, the trial court rendered judgment on July 19, 1994, in favor of Degruise and against Federated for $1,202,000.00, together with legal interest from date of judicial demand until paid. The trial court also rendered judgment in favor of Della, Trevor, and Trent Degruise and against Federated for $75,000.00, $25,000.00, and $25,000.00, respectively, together with legal interest from date of judicial demand until paid. The trial court judgment also awarded Degruise the sum of $240,400.00 in penalties and attorney's fees pursuant to LSA-R.S. 22:658 against Federated from date of judgment until paid. Judgment was also rendered in favor of Della Degruise in the amount of $15,000.00 for penalties and attorney's fees pursuant to LSA-R.S. 22:658 from judgment until paid. Trevor and Trent Degruise were each awarded the sum of $5,000.00 in penalties and attorney's fees with legal interest from judgment until paid against Federated. Federated, as UM insurer, was cast for all costs, including expert witness fees, which were set by the court.

Thereafter, pursuant to a motion for new trial filed by Federated and SLECA, the trial court granted the motion for new trial, amended the trial court judgment, and rendered judgment on the intervention in favor of Federated, as worker's compensation carrier for SLECA, and against Degruise and Federated, as the UM insurer, the stipulated sum of $58,902.59 to be satisfied out of the $1,202,000.00 judgment rendered in favor of Degruise on the main demand. The amended judgment also decreed that Federated, as the worker's compensation carrier, and SLECA were entitled to a credit of $1,202,000.00, less attorney's fees and costs, against future compensation and medical benefits. In all other respects, the original judgment of the trial court was incorporated into the amended judgment. ⁷

From this adverse judgment, Federated suspensively appeals, assigning the following errors:

1. The trial court erred in ruling that there was no valid selection of lower uninsured/underinsured policy limits prior to the accident, and [94 2386 La.App. 1 Cir. 6] that Endorsement ARB 66 (9-88), effective July 1, 1989, increasing the UM coverage from $5/10,000.00 to $20,000.00 in total coverage without a signed selection from SLECA to that effect, had the effect of equating the amount of UM coverage to the liability coverage of $1,000,000.00 provided by Federated's primary auto policy.

2. The trial court erred in ruling that the commercial umbrella policy issued by Federated provided UM coverage in the amount of $10,000,000.00 per occurrence.

3. The trial court erred in holding that the UM coverage provided by the commercial umbrella policy was directly sequential to that provided by the primary auto policy.

4. The jury was manifestly erroneous in awarding damages to the plaintiff, particularly for future economic loss, without consideration of his shortened life expectancy from an unrelated cause.

5. The trial court erred in awarding penalties and attorney's fees on the basis that, once the court had decided that the policies applied and extended UM coverage up to the respective liability limits of $1,000,000.00 and $10,000,000.00, Federated had a duty to tender funds.

SUMMARY JUDGMENT

In the instant case, the issues regarding the primary and umbrella UM insurance coverage were disposed of on pre-trial motions for summary judgment. On appeal, Federated contends that the trial court erred in granting the motions for summary judgment with regard to the UM coverage on the primary and umbrella insurance policies.

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Ouachita National Bank in Monroe v. Gulf States Land & Development, Inc., 579 So.2d 1115, 1120 (La.App. 2nd Cir.), writ denied, 587 So.2d 695 (La.1991). The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966; Thompson v. South Central Bell Telephone Company, 411 So.2d 26, 27 (La.1982); Legros v. Norcen Exploration, Inc., 583 So.2d 859, 860 (La.App. 1st Cir.), writs denied, 588 So.2d 101, 109 (La.1991).

A fact is material if its existence is essential to the plaintiff's cause of action under the applicable theory of recovery and without which the plaintiff could not...