Barber v. Best
| Citation | 394 So.2d 779 |
| Decision Date | 05 February 1981 |
| Docket Number | No. 11856,11856 |
| Parties | Keith BARBER v. Paul F. BEST and Dairyland Insurance Company. |
| Court | Court of Appeal of Louisiana (US) |
Graffagnino, Perez & Roberts, A. Russell Roberts, Metairie, for plaintiff-appellee.
Young, McMahon & Levert, Edward L. Levert, Jr., New Orleans, for defendants-appellants.
Before SAMUEL, GULOTTA and CHEHARDY, JJ.
The trial judge awarded plaintiff a judgment in the sum of $1,300.00 as damages from an automobile accident on January 7, 1979. Included in the award is the sum of $1,100.00, the value of a 1971 Plymouth Valiant "totaled" in the accident, less $100.00 in salvage paid to plaintiff, together with $200.00 for loss of use and inconvenience.
Defendants appealing claim: (1) plaintiff failed to establish the identity of defendant Paul F. Best as the driver of the offending vehicle; (2) no evidence was introduced to establish that Dairyland Insurance Company was the liability insurer of Paul Best; (3) the $910.58 repair estimate does not support the $1,100.00 "totaled" value award; and, (4) error was committed by the trial judge in making an award for inconvenience.
Considering the arguments in the same order as presented, we reject the contention that plaintiff failed to establish Best as the driver of the automobile. Plaintiff testified that after the accident, at the scene, Paul F. Best identified himself as the driver of the automobile that struck plaintiff's car. Barber had not known Best before the accident and he did not see the defendant's driver's license. Plaintiff testified further that the police did investigate the accident. Best did not testify, and although represented by counsel at the trial, this defendant was not present. Considering Barber's testimony, together with the absence of any defense evidence that Best was not the driver of the defendant vehicle, we cannot say the trial judge erred when he concluded, in oral reasons, that Best was the driver of the automobile involved in this accident. We, therefore, do not disturb that part of the decree which casts Paul F. Best in judgment.
We reach a different result, however, regarding the judgment rendered against Dairyland Insurance Company. In paragraph 10 of the petition, plaintiff alleges that "... Dairyland Insurance Company, had in full force and effect a policy of automobile public liability coverage on the said automobile driven by the defendant, Paul F. Best." Defendants deny the allegations of paragraph 10 and state further "... that a policy of insurance, if any, is the best evidence of its contents." Examination of the record fails to disclose any reference to a policy of insurance, any offer of the insurance policy or any testimony relating to coverage. Defendants' answer calls for proof by plaintiff of policy coverage. Plaintiff simply failed to produce that proof and under the circumstances any judgment against Dairyland Insurance Company, as insurer of Best in this case, is error.
We cannot conclude that Dairyland's active participation in the defense of Best at the trial, failure to introduce any evidence denying that it was Best's insurer and its filing of a request for notice, motion for new trial and a suspensive appeal, together with posting security for that appeal, are proof that Dairyland is the liability insurer of Best. A plaintiff suing on an insurance contract has the burden of establishing the existence of the policy sued on and its terms and provisions. Boyd v. White, 123 So.2d 835 (La.App. 2d Cir. 1960). Plaintiff must plead and prove his claim falls within the general policy, whereas the insurer must prove exclusions from coverage. Carriere v. Triangle Auto Service, 340 So.2d 665 (La.App. 4th Cir. 1977). Plaintiff has not met his burden in our case. 1
Turning now to defendants' argument relating to quantum and entitlement to damages for inconvenience, we amend and reduce, in slight measure, the automobile damage award, but affirm the loss of use and inconvenience award. The trial judge found the cash value of the automobile at the time of the accident to be $1,200.00. Plaintiff had purchased the vehicle as a used car approximately two years prior to the accident for $1,500.00. The estimate from Caruso Body Shop for repairs to the damaged vehicle amounted to $910.58. Steve Caruso, the estimator, explained, however, that because additional body repairs are usually required and not observable until after...
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