Allen v. U.S. Fidelity & Guaranty Co.

• Court: Court of Appeal of Louisiana
• Writing for the Court: GLADNEY
• Citation: Allen v. U.S. Fidelity & Guaranty Co., 188 So.2d 741 (La. App. 1966)
• Decision Date: 30 June 1966
• Docket Number: No. 10608,10608
• Parties: Donald ALLEN, Plaintiff-Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY et al., Defendants-Appellees.

Page 741

188 So.2d 741

Donald ALLEN, Plaintiff-Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY et al Defendants-Appellees.

No. 10608.

Court of Appeal of Louisiana, Second Circuit.

June 30, 1966.

Rehearing Denied Aug. 4, 1966.

George Fink, Monroe, for appellant.

Theus, Grisham, Davis, Leigh & Brown, Monroe, for appellee, United States Fidelity & Guaranty Co.

Carl F. Walker, Monroe, for appellee State Farm Mut. Auto. Ins. Co .

Before HARDY, GLADNEY and AYRES, JJ.

GLADNEY, Judge.

This action for personal injuries arises from a collision of three automobiles, October 8, 1964, on Louisville Avenue, a four lane east-west thoroughfare in Monroe, Louisiana. The vehicles included a Volkswagen, driven by Donald Allen, with the permission of its owner, Levy Redden; a Chevrolet automobile owned and operated by Vincent A. Genusa, and a Buick automobile owned and operated by Charles F. Collins. Collins was not covered by public liability insurance. Suit was filed by Donald Allen against United States Fidelity and Guaranty Company, insurer of Levy Redden, predicated upon the uninsured motorist coverage provision of the policy. The petition was amended to join State Farm Mutual Automobile Insurance Company, liability insurer of Genusa, as a party defendant. Judgment was rendered in favor of Allen against United States Fidelity and Guaranty Company in the sum of $1,477.38, and in favor of State Farm Mutual Automobile Insurance Company, rejecting the demands of plaintiff. The latter has appealed and defendant United States Fidelity and Guaranty Company has answered the appeal for the purpose of fixing liability upon State Farm Mutual Insurance Company.

Immediately prior to the accident the Chevrolet automobile driven by Genusa stopped in the inside eastbound lane waiting for the traffic light to change in order to make a left turn. In this position it was struck on the right rear end by the car driven by Collins, the impact propelling it across the center-line of the street into the path of Allen's westbound vehicle. Genusa observed the approach of Collins and turned his wheels slightly to the left but did not move the vehicle before it was hit. Genusa is charged with negligence in so turning his wheels instead of maintaining them in a position to continue forward.

In the trial court plaintiff contended Collins and Genusa were guilty of concurrent negligence and should be held responsible. A further issue presented related to the interpretation of the policy provisions embodying uninsured motorist coverage. The same issues are presented on this appeal. The record fully substantiates the finding of the trial judge that the sole proximate cause of the accident was due to the negligent driving of Collins, the uninsured motorist, while under the influence of intoxicating beverages, his failure to pay attention to the road ahead, and driving in a reckless manner.

The second issue presented herein requires interpretation of the uninsured motorist coverage provision contained in the policy issued to Levy Redden by defendant United States Fidelity and Guaranty Company.

The pertinent provisions of that coverage provide:

'Limits of Liability.

(a) * * *

(a) any amount payable under the terms of this endorsement because of bodily injury sustained in an accident by a person who is an insured under this coverage shall be reduced by:

'(1) * * *

(2) The amount paid and the present value of all amounts payable on account of such bodily injury under any workmen's compensation law, disability benefits law or any similar law.'

It is stipulated Allen has received payments under the provisions of the Louisiana Workmen's Compensation Statute in the sum of $3,522 .62 and it is admitted that should the Court find he is entitled to recover in this action because of the extent of his injuries his damages will exceed $5,000.00. The court awarded plaintiff $1,477.38, as the amount due under the policy after deducting workman's compensation payments received by plaintiff.

Appellant Allen most seriously urges that the defendant United States Fidelity and Guaranty Company is not entitled to credit against its liability workmen's compensation benefits received by him, and that accordingly the judgment against said insurer herein should be amended to provide for payment without such credit or deduction. His argument stresses the fact that if he repays the compensation benefits paid to him under the Workmen's Compensation Act he is in effect in a position whereby he would not be paid anything for workman's compensation, and that such a deduction is repugnant to our statutes, particularly LSA-R.S. 32:872 requiring the policy containing the uninsured motorist protection shall be subject to a limit 'exclusive of interest and costs, of not less than five thousand dollars because of bodily injury to or death of one person in any one accident * * *.'

In his consideration of the question the trial judge commented:

'The Insurance Code of the State of Louisiana provides that every policy of automobile liability insurance shall contain uninsured motorist vehicle coverage in not less than the limits described in the Motor Vehicle Safety Responsibility Law of Louisiana, but gives the named insured the right to reject the coverage (LSA-R.S. 22:1406(D)). Nowhere in this Act is found any provision which prohibits inclusion of a clause limiting liability of the company as was done in the policy in question.

'In the case of Kennedy v. Audubon Insurance Company, (La.App.) 82 So.2d 91, Judge Tate said:

'In the absence of statutory provisions to the contrary, insurance companies have the same right as individuals to limit their liability, and to impose whatever conditions they please upon their obligations not inconsistent with public policy; and the courts have no right to add anything to their contracts, or to take anything from them. Muse v. Metropolitan Life Insurance Company, 193 La. 605, 192 So. 72, at page 75, 125 A.L.R. 1075.' (See also Diez v. Accident Indemnity Insurance Company, (La.App.,) 162 So.2d 206.)

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