Bond v. Commercial Union Assur. Co., 80-C-1965

• Decision Date: 06 April 1981
• Docket Number: No. 80-C-1965,80-C-1965
• Parties: Chester G. BOND, III, et ux. v. COMMERCIAL UNION ASSURANCE CO., et al. (Lumbermens Mutual Casualty Company) and Chester G. BOND, III, et ux. v. Cindy G. JACK et al. (Lumbermens Mutual Casualty Co.)
• Court: Louisiana Supreme Court

Page 401

407 So.2d 401

Chester G. BOND, III, et ux. v. COMMERCIAL UNION ASSURANCE CO., et al. (Lumbermens Mutual

Casualty Company)

and

Chester G. BOND, III, et ux. v. Cindy G. JACK et al. (Lumbermens Mutual Casualty Co.)

No. 80-C-1965.

Supreme Court of Louisiana.

April 6, 1981.

On Rehearing Nov. 16, 1981.

Rehearing Denied Dec. 14, 1981.

John G. McLure, McLure & McLure, Alexandria, for defendants-applicants.

Gregory S. Erwin, Bolen & Erwin, Alexandria, Sylvia Cooks, Norman P. Foret, McBride & Brewster, Lafayette, Dorwan G. Vizzier, Gist, Methvin, Hughes & Munsterman, Alexandria, for plaintiffs-respondents.

BLANCHE, Justice.

Plaintiffs, the parents of Chester G. Bond, IV, filed two lawsuits seeking wrongful death damages for the death of their major son, and a survival action for his pain and suffering, medical expenses and property damage.

In the first suit, filed in Lafayette Parish, plaintiffs sued the driver of the vehicle, Cindy G. Jack, and her insurer, State Farm Mutual Automobile Insurance Company (referred to as State Farm). In the second suit, filed in Rapides Parish, plaintiffs sued the deceased's uninsured motorist carrier, Commercial Union Assurance Companies (referred to as Commercial), and their own uninsured motorist carrier, Lumbermens Mutual Casualty Company (referred to as Lumbermens). Commercial and Lumbermens filed several pre-trial exceptions which were denied and a third party demand against Cindy Jack.

The suit in Lafayette Parish was transferred to Rapides Parish by order of the trial court and was consolidated with the suit against the two uninsured motorist carriers. Prior to the trial, Chester G. Bond, III, the deceased's father, passed away. His wife and daughter were properly substituted in his place.

After a three day trial, the twelve person jury returned a unanimous verdict for the defendant, Cindy Jack; thus, all claims were dismissed. The plaintiffs appealed and the Third Circuit Court of Appeal reversed and rendered a judgment in favor of the plaintiff against all four defendants. Defendant Lumbermens has taken this writ, which we granted under the jurisdiction of the 1974 Louisiana Constitution, art. 5, § 5.

The facts of the case are relatively simple. On a clear, dry summer day at a little past noon the deceased, Chester G. Bond, IV, was riding his 750CC motorcycle in a southward direction on University Avenue, a four-lane avenue in the City of Lafayette. The defendant, Cindy Jack, a student at USL at the time, was driving her 1965 automobile in a northward direction on University Avenue. She executed a left turn off of University Avenue onto Azalea Street, a two-lane road, in front of the deceased. In his attempt to avoid a collision with the defendant, the deceased put on his brakes and swerved his motorcycle. He lost control of the motorcycle, flew through the air and landed on the pavement. Having no helmet, the deceased sustained severe head injuries which resulted in his death thirty-two hours later.

The jury heard several witnesses for each side recant the events of that day, and concluded unanimously that the defendant was not negligent or that the deceased had been contributorily negligent. None of the defendants were held responsible to the plaintiffs, and the third party demand of Lumbermens and Commercial against Cindy Jack was also dismissed.

The court of appeal reversed the trial court's finding of no negligence on the part of the defendant Cindy Jack. The court was also of the opinion that a proper jury charge had not been given to the jury as the standard for a left-turning motorist was greater than "ordinary care". Furthermore, it concluded that even had the jury been properly charged it would have been manifest error to reach a verdict for the defendants. Accordingly, the court awarded the plaintiffs: $10,000 for decedent's pain and suffering; $20,000 per parent for his wrongful death; and $8007.58 for stipulated medical and funeral expenses, for a total award of $58,007.58.

In Suit # 7489, the defendant, Cindy Jack, was held responsible for the entire amount of the judgment. Defendant State Farm was held liable for the limit of her policy, $5,000, in solido with Cindy Jack. The judgment was consolidated with the judgment in Suit # 7488 concerning Lumbermens and Commercial. Their liability was for the excess of State Farm's liability. Since the limit on the Commercial policy was $5,000, and that on the Lumbermens policy was $100,000, their respective liabilities were adjusted in proportion to their coverages. Thus, Commercial was held responsible for $2,524.17, and Lumbermens for $50,483.41 which, combined with State Farm's $5,000, made a total consolidated judgment of $58,007.58.

The court of appeal further ruled that the third party demand of Commercial and Lumbermens against Cindy Jack was still alive though they had not answered the plaintiff's appeal, for they had prevailed at the trial court. However, the Third Circuit ruled Commercial and Lumbermens could not seek reimbursement from Cindy Jack, citing Niemann v. Travelers Ins. Co., 368 So.2d 1003 (La.1979). Thus, they affirmed the dismissal of the third party demands against Cindy Jack.

On certiorari to this Court, Lumbermens has raised four specifications of error:

(1) The court of appeal erred in holding the jury committed manifest error and was clearly wrong in finding for the defendant.

(2) The court of appeal erred in reciting the standard of care for left-turning motorists and finding the jury was precluded from reaching a proper verdict.

(3) The court of appeal erred in finding uninsured motorist coverage on the part of Lumbermens; and

(4) The court of appeal erred in holding that uninsured motorist carriers have no cause of action against an alleged third party tortfeasor.

Though tempted to address each of these allegations, particularly number 4, we decline, for we agree with the defendant that specification of error number 3 has merit and, accordingly, we reverse the court of appeal's finding that the deceased was covered by the Lumbermens policy issued to the deceased's father. We agree with the defendant Lumbermens that the deceased was not an insured under his father's uninsured motorist policy as the deceased was not a resident of his father's household.

Prior to the trial, Commercial filed exceptions of improper venue and lack of procedural capacity and Lumbermens filed an exception of venue. It was obvious to the trial judge that Lumbermens' prime contention was that plaintiffs had no cause of action as the deceased was allegedly not a resident of his father's household. The trial judge heard the evidence and overruled both defendants' exceptions, including the exception of no cause of action. The defendants did not appeal.

At the trial, the trial judge refused to allow the defendants to pursue this issue of the deceased's residency in front of the jury. By the use of proffer, both the defendant and the plaintiffs put in evidence substantial materials concerning the deceased's residency.

However, once the jury found for the defendants, Lumbermens was not held liable to the plaintiffs irrespective of the deceased's residence. When the plaintiffs appealed the decision to the court of appeal, none of the defendants answered or appealed the lower court's decisions.

The court of appeal reversed the trial court's holding and while addressing Commercial's and Lumbermens' third party demand against the tortfeasor, Cindy Jack, they did not regard the deceased's residency. It appears they assumed the deceased was covered by his father's uninsured motorist policy.

We now address that issue in spite of the plaintiff's contention that the issue should be considered abandoned because the defendant Lumbermens did not appeal the overruled exception of no cause of action, nor raise the issue by answering the plaintiff's appeal.

According to C.C.P. art. 2083:

"An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury."

The overruling of Lumbermens' exception of no cause of action was not a final judgment and did not cause irreparable injury. Rapides Cent. Ry. Co. v. Missouri Pac. R. Co., 207 La. 870, 22 So.2d 200 (1945). A trial court's overruling of the defendant's exception of no right or cause of action is an interlocutory judgment and is not appealable, but it is reviewable on appeal from an adverse judgment on the merits. Maxie v. Hartford Acc. & Indem. Co., 212 So.2d 165 (La.App. 3rd Cir. 1968).

Thus, the defendants could not have appealed the overruling of their exception of no cause of action, but they could have raised it on appeal if they had received an adverse judgment on the merits.

However, the defendant was not under any necessity to appeal the overruled exception after having received a favorable judgment on the merits at the trial court. According to C.C.P. art. 2133:

"An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant ..."

Thus, it would appear from the clear provisions of this article that the defendant was not obliged to answer an appeal from a judgment he did not desire to have modified, revised or reversed in part.

In interpreting the predecessor articles, Code of Practice, arts. 888 and 592, to art. 2133, we have previously decided this issue. In Succession of Markham, 180 La. 211, 156 So. 225 (La.1934), we asked the question, "Have we the power to consider the exception, at the defendant's instance, in the absence of an appeal by her or in the absence of an answer to the appeal taken by the plaintiff?" We answered in the affirmative.

Likewise, our courts of appeal have held that the prevailing party at the trial level may raise his exceptions on appeal even...