Crear v. National Fire & Marine Ins. Co.
| Decision Date | 08 May 1985 |
| Docket Number | No. 16914-CA,16914-CA |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | Nancy B. CREAR, et al., Plaintiffs-Appellees, v. NATIONAL FIRE & MARINE INSURANCE COMPANY, et al., Defendants-Appellants. |
Bruscato, Loomis & Street by Anthony J. Bruscato, Monroe, for plaintiffs-appellees.
Davenport, Files & Kelly, Hayes, Harkey, Smith & Cascio, Monroe, Lancaster, Baxter, & Seale by Edgar H. Lancaster, Jr., Tallulah, Lavalle B. Salomon, Joseph D. Cascio, Jr., P.C., Monroe, for defendants-appellants.
Before HALL, SEXTON and LINDSAY, JJ.
On December 3, 1980, Mr. Alex Crear, an 84-year-old senior citizen, was taken to the post office in Tallulah, Louisiana in a van loaned to the Madison Counsel on Aging (MCA) by the Delta Community Action Association (DCAA). The van was driven by Mr. Thomas Bangs, an employee of MCA. As Mr. Crear was walking to the post office building from the post office parking lot space in which the van was parked, he was struck by a car that was backing from another parking space. The driver of the vehicle which struck Mr. Crear drove away and was never identified. Mr. Crear sustained a fractured hip and died later that same month as a result of complications following surgery on the hip. Wrongful death and survival actions were brought by Mr. Crear's widow and two children against DCAA, MCA, the driver of the van, and the van's insurer.
The trial court considered Mr. Crear as handicapped, and considered the van driver's failure to further assist Mr. Crear to the post office building as a proximate cause of the accident. The court found that the liability portion of the van's insurance policy afforded coverage for this accident. The trial court further found that the insurance policy on the van covered the accident under the policy's uninsured motorist provisions. The judgment, rendered against all defendants in solido, and declaring that the insurance policy covering the van provided liability coverage of $100,000 and uninsured motorist coverage of $100,000, awarded a total of $111,268.75 in damages to Mr. Crear's widow and two children. All defendants appealed and plaintiffs answered the appeal.
On appeal the van's insurer, National Fire and Marine Insurance Company, asserts that the trial court erred in finding: (1) that the driver owed a duty to Mr. Crear to escort him across the parking lot, (2) that a causal relationship existed between the accident and the maintenance and use of a vehicle under the terms of bodily injury-liability coverage of the van's insurance policy, (3) that Mr. Crear was an insured under the UM provisions of the policy, (4) that insufficient proof existed to show a selection of lower uninsured motorist limits, and (5) that plaintiffs were entitled to $105,000 in general damages. Another specification of error added by the remaining defendants is that DCAA was in no way liable as a consequence of loaning vans to MCA. The only specification of error made by plaintiffs is the insufficiency of the awards.
On appeal, the determinative issues are whether the van driver owed a duty to Mr. Crear to further assist him in safely reaching the post office building, and whether the accident in this case was covered by the provisions of the van's insurance policy. We find that the van driver owed no duty to further assist, and thus find that there can be no recovery under the liability provisions of the policy. We further find that coverage was not afforded to the decedent under the uninsured motorist provisions of the policy. Accordingly, the judgment of the trial court is reversed.
DCAA and MCA are both non-profit corporations serving the Madison Parish area. Both receive state and federal funding, and have overlapping goals in the area of providing services to the elderly. Mr. Audrey Ogden, the director of MCA, testified that he and Mr. Carl Smith, director of DCAA, tried to coordinate the two programs as best they could. Mr. Smith testified that DCAA loaned four vans, including the one in which Mr. Crear rode, to MCA. Apparently, one of the four vans loaned to MCA was equipped with a wheelchair lift, and was used to transport individuals who were not able to ambulate independently. The van in which Mr. Crear rode, however, was used by MCA to transport elderly citizens who were able to ambulate with little or no assistance.
Mr. Ogden testified that individuals who wished to make use of MCA's transportation services were first certified by the Department of Family Services (DFS). A judgment was made by DFS as to whether MCA could transport those who had applied for the service, and whether those who applied would require assistance. Mr. Ogden noted that MCA did not provide such assistance, but stated that DFS would furnish an escort to certified individuals needing assistance who wanted to travel on one of the vans. No evidence was introduced to show that Mr. Crear had been determined by DFS to need assistance. Mr. Bangs, the driver of the van, testified at trial that all of the individuals he transported could walk and get around by themselves, and that while he thought these individuals were able to get on and off the van without assistance, the policy was to always offer assistance "whether they wanted it or not."
The testimony presented at trial showed that Mr. Crear was an active, independent individual who neither requested nor welcomed assistance. Thomas Bangs stated in his deposition that Mr. Crear got around well and never requested any help. Arcola McCall, who had known Mr. Crear for twelve years, who attended the same church as Mr. Crear, and who apparently was the only eyewitness to the accident, testified that Mr. Crear was very spry and needed no one to help him around. She also testified that she never noticed him to be hard of hearing. Similarly, Mr. Coleman Blackmon, who worked with Mr. Crear on small carpentry jobs for a number of years up until the time of the accident, testified that Mr. Crear needed no help to get around, but was "a good active man." Mr. Blackmon's testimony about driving Mr. Crear to the store on several occasions is indicative of Mr. Crear's ability to function without assistance:
Mr. Crear's daughter, Fannie Releford, stated that Mr. Crear looked young for his age, and that she thought he could walk faster than she could. Even Mr. Crear's wife, Mrs. Nancy Crear, stated that Mr. Crear didn't need any help to walk, and didn't want anyone to help him. She noted that Mr. Crear only wore glasses when reading and when doing carpentry work. However, despite Mr. Crear's apparent lack of serious vision problems, Dr. John Evans, who took a medical history and did a physical examination of Mr. Crear following the accident, testified that Mr. Crear had a mature cataract in his right eye. Mr. Crear indicated to Dr. Evans that he had lost most of the vision in his right eye over the prior two years, and had experienced some dimming of vision in the left eye. While Dr. Evans could not say how well Mr. Crear could see out of his left eye, Dr. Evans did say that Mr. Crear did not suffer from senility, and that while Mr. Crear did have some hearing loss, it was not difficult to communicate with him.
On the day of the accident, Mr. Crear and several other passengers were being taken to a location at which a hot lunch would be served. Mr. Crear asked Mr. Bangs to stop the van at the post office so that Mr. Crear could pick up his social security check. Mr. Bangs testified that Mr. Crear's request was not unusual, and that Mr. Bangs had taken Mr. Crear to the post office for that purpose on three or four occasions in the past. Mr. Crear had been a regular passenger on the van driven by Bangs for six or seven months. Prior to riding with Bangs, Mr. Crear had used the van's service regularly for several years.
When Bangs drove into the post office parking lot, only two parking spaces were available. Both spaces were located on the right side of the parking lot. The parking lot consisted of a drive-through lined on the right and the left for angle parking. The right side of the lot on which Mr. Bangs parked was the side opposite the post office building so that it was necessary for Mr. Crear to walk across the drive-through after exiting the van. After parking the van, Bangs got out, opened the door for Mr. Crear, and placed a milk crate on the pavement to help Mr. Crear step down. Mr. Bangs then took Mr. Crear's hand and helped him exit the van. When Mr. Crear had both feet on the ground, Mr. Bangs took Mr. Crear's left arm and guided him to the end of the van. After observing no moving traffic, Mr. Bangs allowed Mr. Crear to proceed on his own toward the post office. Mr. Bangs then returned to the van.
At the time his deposition was taken, Mr. Bangs was questioned about the extent of the assistance he gave Mr. Crear in exiting the van:
To continue reading
Request your trial
-
Washington Metropolitan Area Transit Authority v. Reading, 954
...12 (S.D.N.Y.1989); Heger v. Trustees of Indiana University, 526 N.E.2d 1041, 1043 n. 4 (Ind.Ct.App.1988); Crear v. National Fire & Marine Ins. Co., 469 So.2d 329, 334-35 (La.App.1985). See also Cary v. New Orleans Public Serv., 250 So.2d 92 (La.App.), cert. denied, 259 La. 808, 253 So.2d 67......
-
Texas Farm Bureau Mut. Ins. Co. v. Sturrock
...for claimant who was twenty-four feet away from vehicle he intended to enter when accident occurred); Crear v. Nat'l Fire & Marine Ins. Co., 469 So.2d 329, 336-37 (La.Ct.App. 1985) (UM coverage denied for injuries suffered when claimant was struck while walking through drive through area of......
-
962096 La.App. 1 Cir. 9/19/97, Minor v. Casualty Reciprocal Exchange
...between the victim and the insured vehicle, when the victim's attention was not directed toward it. In Crear v. Nat'l. Fire & Marine Ins. Co., 469 So.2d 329 (La.App. 2nd Cir.), writ denied, 475 So.2d 364, reconsideration denied, 477 So.2d 698 (La.1985), the court denied coverage. There the ......
- Bellwether Enter. Real Estate Capital v. Jaye