Ferrell v. Fireman's Fund Ins. Co.

• Decision Date: 01 July 1997
• Citation: 696 So.2d 569
• Parties: 96-3028 La
• Court: Louisiana Supreme Court

Page 569

696 So.2d 569

96-3028 La. 7/1/97

Reva Spiegal, wife of/and Edward FERRELL v. FIREMAN'S FUND INSURANCE CO., et al.

No. 96-C-3028.

Supreme Court of Louisiana.

July 1, 1997.

[96-3028 La. 2] VICTORY, Justice.

We granted certiorari in this personal injury action arising out of a multi-vehicle accident for two reasons: (1) to determine whether Fireman's Fund is liable for Mrs. Ferrell's loss of consortium out of the per accident bodily injury limits of its policy, or whether loss of consortium is derivative of her husband's injuries and therefore must be satisfied out of the per person bodily injury limits of the policy, and (2) to review the court of appeal's decision that Fireman's Fund is liable for interest on the amount of damages awarded to the Ferrells in excess of its policy limits.

For the reasons that follow, we hold that Mrs. Ferrell's claim for loss of consortium is derivative of her husband's injuries. As such, Mrs. Ferrell's award for loss of consortium must be satisfied out of the per person bodily injury limits of the Fireman's Fund policy, assuming the policy limits have not been exhausted by Mr. Ferrell's damages. In addition, we hold that, because Patrice Brown, Fireman's Fund's insured, was never served with the Ferrells' petition and likewise was never cast in judgment, Fireman's Fund is not liable to the Ferrells for interest on damages in excess of its policy limits pursuant to its supplementary payment provision.

FACTS AND PROCEDURAL HISTORY

The facts as determined by this Court in our previous opinion, Ferrell v. Fireman's Fund Ins. Co., 94-1252 (La.2/20/95); 650 So.2d 742 are as follows:

The multiple-vehicle accident in this case occurred on August 12, 1985 on I-10 East at the Read Road overpass in the early evening hours at dusk. The weather was rainy, with overcast skies, and visibility was poor, except for the well-lit overpass where the accident occurred.

Five vehicles were involved in this accident--a Mazda owned by Patrice Brown, a Chevrolet driven by Kimmie Cranford, a Ford LTD driven by police officer Reid Noble, a Toyota driven by Edward Ferrell, and a Cadillac driven by Antoine Paudice. A sixth vehicle, not described, with an unknown driver, allegedly was also involved.

Patrice Brown was driving home from work when she lost control of her Mazda on the incline of the I-10 overpass at Read Road. She claims the steering mechanism failed; other witnesses said the car "hydroplaned." She struck the left hand guard rail, spun around, and skidded in the left lane of I-10. She claims she came to a stop adjacent to the guard rail, out of the left lane, in the safety accident lane, facing oncoming traffic. The precise position of Brown's vehicle following the spin is in dispute.

[96-3028 La. 3] Kimmie Crawford was traveling on I-10 behind Brown when he observed Brown's car swerve, strike the left hand rail, spin around and come to a stop facing oncoming traffic. Cranford says the Mazda stopped in the left hand lane, blocking traffic, not in the safety lane. He stopped his car in the left hand lane behind her car, put on his emergency signal, got out, and went to assist Brown. He helped her push her car from the left lane to the emergency lane before a police car drove up and stopped behind his car.

Officer Reid Noble was driving her Ford LTD unmarked police car on I-10 when she observed traffic congestion on the Read Road overpass. She slowed down and stayed in the left hand lane when she observed Brown's Mazda stopped in the emergency lane facing oncoming traffic. Cranford's Chevrolet was stopped behind the Mazda, with the emergency lights on. She pulled her Ford LTD to a stop behind Cranford's Chevrolet, turned her emergency flashers on, and radioed headquarters that she was stopping to investigate an accident. All three vehicles were on the elevated portion of the overpass, and at least Cranford and Noble had their flashers on. When Noble found there was no personal injury, she told Brown and Cranford to move their vehicles if possible, so as not to cause an accident, and went back to her vehicle to report the situation. At that moment, an unidentified "phantom" vehicle swerved to avoid her LTD, skidded in the right lane guard rail, and continued down I-10.

Edward Ferrell was driving his Toyota with his wife as a passenger. While driving on I-10, he was behind a vehicle in the left hand lane, when that vehicle suddenly swerved to the right. When it swerved, he saw Noble's police car in front of him, but could not avoid hitting it. When he hit the police car, it was knocked forward into Cranford's Chevrolet. Ferrell's Toyota came to rest in the middle lane of I-10, where it was struck by Paudice's Cadillac.

Antoine Paudice was driving his Cadillac on I-10. When he saw Ferrell's Toyota stopped, blocking the middle lane of traffic, he could not avoid hitting it. Paudice's Cadillac smashed into Ferrell's Toyota. Paudice was injured, but not as severely as the Ferrells.

As a result of the accidents, two lawsuits were filed. The Ferrells filed suit against the drivers and insurers of the other five vehicles; Mr. Ferrell for injuries he suffered in the accident and Mrs. Ferrell for her loss of consortium resulting from Mr. Ferrell's injuries. Antoine Paudice also filed suit against the drivers and insurers of the other vehicles, including the Ferrells and their insurer. ¹ Prior to trial, the Ferrells settled their claims against Paudice, Noble and the City of New Orleans. Remaining for trial were the Ferrells' claims against Brown and her insurer, Fireman's Fund, Cranford and his insurer, Liberty Mutual, and Enterprise Leasing, the company that leased the car to Cranford.

[96-3028 La. 4] After trial on the merits, a jury determined that neither Brown nor Crawford were negligent, but that Officer Noble, Paudice and the phantom vehicle were negligent and caused the accident. In addition, the jury found although Mr. Ferrell was negligent, his negligence did not cause the accident. Fault was apportioned as follows: 0% to Brown and Cranford; 20% to Officer Noble; 30% to the phantom vehicle; 30% to Ferrell; and 20% to Paudice. The court therefore dismissed with prejudice the claims of Antoine Paudice and the Ferrells as to defendants Cranford and his insurer, Liberty Mutual Insurance Company, Enterprise Leasing Company, and Fireman's Fund Insurance Company. The Fourth Circuit Court of Appeal affirmed. Ferrell v. Fireman's Fund Ins. Co., 92-2116 (La.App. 4th Cir. 2/25/94); 635 So.2d 1152.

We granted certiorari, Ferrell v. Fireman's Fund Ins. Co., 94-1252 (La.9/16/94); 642 So.2d 177, and reversed the jury's determination that Ms. Brown was not at fault. Furthermore, we found that the trial court had committed legal error by entering judgment on the jury's inconsistent responses to interrogatories, an error we determined may have interdicted the fact-finding process. ² Thus, we remanded the case to the court of appeal, for it to perform a de novo review, with the instruction that it should first determine whether Edward Ferrell was guilty of any negligence that was a cause of the accident and, if so, assign him the proper percentage of fault. After doing so, the court of appeal was to recalculate the respective percentages of fault of the phantom driver, Officer Noble, and Paudice and enter an appropriate judgment. Ferrell v. Fireman's Fund Ins. Co., 94-1252 (La.2/20/95); 650 So.2d 742.

[96-3028 La. 5] On remand, the court of appeal determined that Edward Ferrell was negligent and his negligence was a legal cause of the accident. It then recalculated the percentages of fault as follows: 50% to Ms. Brown, 25% to Edward Ferrell and 25% to Mr. Paudice. No fault was assigned to the phantom driver or Officer Noble. Edward Ferrell was awarded $489,098.06 in damages and Mrs. Ferrell was awarded $25,000 for her loss of consortium.

In addition, the court of appeal determined that Fireman's Fund was not only liable for legal interest on its policy limits of 10/20 from the date of judicial demand until paid, but, pursuant to the supplementary payment provision of its policy, it was also liable for legal interest on the entire amount in excess of its policy limits from June 2, 1992, the date judgment was rendered in the trial court, until payment was made. Notably absent, however, from the court of appeal's decision was discussion concerning the issue of whether Fireman's Fund was liable to Mrs. Ferrell for her loss of consortium out of the per accident bodily injury limits of its policy, or whether loss of consortium was derivative of her husband's injuries and thus had to be satisfied out of the per person bodily injury limits of the policy. Ferrell v. Fireman's Fund Ins. Co., 92-2116 (La.App. 4th Cir. 7/31/96); 680 So.2d 690, remanded by 94-1252 (La.2/20/95); 650 So.2d 742.

Fireman's Fund was granted limited rehearing to consider the date from which it was to pay legal interest on the amount of damages awarded to the Ferrells in excess of its policy limits. Fireman's Fund argued that because the trial court judgment of June 2, 1992 was entered in its favor, based on the jury's finding that its insured was free of fault, interest could only be due on the excess judgment from rendition of judgment in the court of appeal on remand. The court of appeal agreed that it had erred in awarding interest from the date of the trial court judgment, but disagreed that the correct date was the date of its opinion on remand. Rather, the court of appeal determined:

On February 20, 1995, the Supreme Court determined that Fireman's Fund insured was negligent and caused the accident in which the plaintiff was injured. Ferrell v. Fireman's Fund Ins. Co., 94-1252, pp. 6-7 (La.2/20/95), 650 So.2d 742, 747. The Supreme Court remanded the case to this court solely to apportion fault and to determine damages. The Supreme Court's judgment was a final, unappealable determination that Fireman's Fund insured was...