Benoit v. Hartford Cas. Ins. Co., 84-758
| Decision Date | 07 November 1985 |
| Docket Number | No. 84-758,84-758 |
| Citation | 478 So.2d 707 |
| Parties | Rogers Joseph BENOIT, et al., Plaintiffs-Appellants, v. HARTFORD CASUALTY INSURANCE COMPANY, et al., Defendants-Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
Guillory, McGee & Mayeux, Robert K. Guillory, Eunice, for plaintiffs-appellants.
Jeansonne, Briney & Goudelocke, Owen Goudelocke, Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for defendants-appellees.
Before GUIDRY, STOKER and KING, JJ.
This is a wrongful death action brought by the five children of Mary C. Fruge, the decedent, who was killed in an automobile accident, which occurred on January 8, 1982, on U.S. Highway 190, in Basile, Evangeline Parish, Louisiana. The original defendants in this suit were the Hartford Casualty Insurance Company (hereafter referred to as Hartford), the liability insurance carrier of Felicien Gobert, the owner/driver of the other automobile involved in the accident, and State Farm Mutual Automobile Insurance Company (hereafter referred to as State Farm), the alleged insurer of the vehicle Mary C. Fruge was driving. Before trial, the plaintiffs and Hartford settled. After trial on the merits, judgment was rendered in favor of the defendant, State Farm, the trial court concluding that plaintiffs failed to prove by a preponderance of the evidence that Felicien Gobert was guilty of any negligence. Plaintiffs have devolutively appealed, asserting that the court erred in failing to find fault on the part of Felicien Gobert. Defendant-appellee, State Farm, answered asserting that the court's negligence finding was proper but that the court's finding that the State Farm policy was in full force and effect was erroneous.
1. May the plaintiffs prove the primary negligence of Felicien Gobert through use of the presumption that when someone is killed in an accident, the law presumes they exercise reasonable care and were free of negligence? What effect does comparative negligence have on this presumption?
2. Whether the plaintiffs carried their burden of proving by a preponderance of the evidence the negligence of Felicien Gobert?
3. Whether the defendant proved the contributory negligence of Mary Fruge?
4. Whether State Farm afforded uninsured or under-insured motorist coverage on the vehicle being driven by Mary Fruge?
On January 8, 1982, at approximately 9:50 a.m., two cars, one driven by Mary C. Fruge and the other driven by Felicien Gobert, were traveling in a westerly direction on U.S. Highway 190 in the town of Basile, Louisiana, the Gobert vehicle following the vehicle driven by Fruge. U.S. Highway 190 is a two-lane road that runs in an east-west direction at this locality and has a nine foot wide improved shoulder on both sides.
Presumably, Fruge, who was driving a 1976 Mazda, either owned by herself or her son-in-law, Norvil Mosbroker, attempted a left turn into an unmarked private driveway located south of U.S. High-way 190. Presumably, at this point in time, the Gobert vehicle either had commenced or began a passing maneuver. The two cars collided in the east bound lane.
A police officer of the town of Basile, John Harvey, was called to the scene of the accident. His accident report and later testimony indicated that the Gobert automobile left skid marks in the east bound lane and south shoulder for 50 feet before the point of impact and 57 feet after the point of impact until the two vehicles came to rest in a wide ditch which runs along the southern side of the highway. Harvey fixed the point of impact in the east bound lane of the highway.
There were no eyewitnesses to the accident. Mary C. Fruge died a relatively short time later that same morning while on route to a hospital. Mary C. Fruge was not able to give her account of the accident to the police officer immediately after the accident because she was trapped in the automobile and in some considerable amount of pain.
Felicien Gobert, the driver of the other vehicle, died approximately two months later of natural causes apparently unrelated to the collision. Gobert was never deposed after the accident.
On cross-examination, the investigating officer indicated that Gobert told him soon after the accident that Fruge did not use her turn signals, however, on re-direct examination, the officer indicated that, at the scene of the accident, he had written on his accident report that Gobert said he did not see the signal from Fruge's car. Harvey also testified, without objection, that Gobert stated to him that "he was in the east bound lane going west, attempting to pass, when she (Mrs. Fruge) turned in fron of him."
At the location of the accident, there was no intersection, no prohibition against turning left, and no yellow lines on the highway in the westbound lane prohibiting passing. The road was straight and level. The weather was clear and dry.
At the time of the accident, there was a $10,000.00 limit of liability insurance coverage by Hartford Casualty Insurance Company on the Gobert automobile, and $25,000.00 limits of uninsured or underinsured motorist coverage by State Farm Mutual Automobile Insurance Company on the automobile driven by Fruge. Before the trial on the merits, the plaintiffs and Hartford settled. The plaintiffs reserved their rights against State Farm.
Plaintiffs contend that when a person is killed in an accident and is therefore unable to testify on his or her own behalf, the law presumes, because of the instinct of self-preservation and love of life, that the decedent was not negligent and acted with ordinary care for his or her own safety. Callahan v. The Town of Bunkie, 287 So.2d 629 (La.App. 3rd Cir. 1973), writ not considered, 290 So.2d 905 (La.1974); LeBlanc v. Estate of Blanchard, 266 So.2d 918 (La. App. 4th Cir.1972), writ refused, 263 La. 618, 268 So.2d 677 (1972); Gant v. Aetna Casualty and Surety Company, 234 So.2d 776 (La.App. 1st Cir. 1970), writ denied, 256 La. 376, 236 So.2d 503 (1970). Accordingly, they argue that the trial court erred in denying them judgment.
The plaintiffs are correct in stating that such a presumption does exist. However, their application of the presumption is erroneous. The presumption is applicable only to negate contributory negligence and not to establish the primary negligence of another. Stated another way, the presumption may be invoked to negate contributory negligence only after the negligence of the defendant has been established by primary evidence. Ebarb v. Southern Farm Bureau Casualty Ins. Co., 251 So.2d 100 (La.App. 3rd Cir. 1971), writ denied, 259 La. 88, 253 So.2d 215 (La.1971).
The plaintiffs further contend that the adoption of comparative negligence in Louisiana should have an effect upon the previously cited legal presumption. They argue that the testimony at the trial was conflicting and that, therefore, the court should have found mutual fault under the doctrine of comparative negligence.
La. C.C. Art. 2323 states:
"When contributory negligence is applicable to a claim for damages, its effect shall be as follows: If a person suffers injury, death or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the claim for damages shall not thereby be defeated, but the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death or loss." (Emphasis added).
Comparative negligence is used to determine the damage award that is available for each party when each party is found to have some degree of fault. A trier's findings as to percentages of fault are factual and, in the absence of clear or manifest error or an abuse of discretion, must be upheld on appeal. Triangle Trucking Co. v. Alexander, 451 So.2d 638 (La.App. 3rd Cir. 1984).
The law of comparative negligence will be applied when both the drivers are found to be negligent. Rome v. State Farm Mut. Auto. Ins. Co., 439 So.2d 1253 (La.App. 5th Cir. 1983). However, the drivers must first be found to be negligent.
The plaintiffs cite three cases in their argument that the trial court was clearly wrong in not finding the parties to be mutually at fault. Faciane v. Green, 379 So.2d 847 (La.App. 4th Cir.1980); Provost v. A.E. Gravois and Sons, Inc., 398 So.2d 1287 (La.App. 4th Cir. 1981); Varnado v. Continental Ins. Co., 446 So.2d 1343 (La.App. 1st Cir. 1984). All three of these cases are distinguishable from the present case. In each of the cases cited, the parties involved in the accident were available at the trial to testify. ...
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