Griffin v. Aetna Cas. & Sur. Co.

• Decision Date: 03 August 1966
• Docket Number: No. 1773,1773
• Citation: Griffin v. Aetna Cas. & Sur. Co., 189 So.2d 324 (La. App. 1966)
• Parties: Mrs. Sam T. GRIFFIN, Plaintiff and Appellant, v. AETNA CASUALTY AND SURETY COMPANY, Defendant and Appellee.
• Court: Court of Appeal of Louisiana

Page 324

189 So.2d 324

Mrs. Sam T. GRIFFIN, Plaintiff and Appellant, v. AETNA CASUALTY AND SURETY COMPANY, Defendant and Appellee.

No. 1773.

Court of Appeal of Louisiana, Third Circuit.

Aug. 3, 1966.

Maxwell J. Bordelon, Marksville, for plaintiff-appellant.

Gold, Hall & Skye, by John F. Simon, Alexandria, Durham & Lee, by James N. Lee, Bunkie, for defendant-appellee.

Before CULPEPPER, TATE and HOOD, JJ.

HOOD, Judge.

This is an action for damages arising out of a two-car motor vehicle collision. One of the automobiles was being driven by plaintiff, Mrs. Sam T. Griffin, and the other by Mrs. Raphael Ducote . The Ducote car was uninsured. This suit was instituted against plaintiff's own insurer, Aetna Casualty and Surety Company, under an uninsured motorist provision in that policy.

The defendant answered denying liability, and it filed a third party petition against Mr. and Mrs. Ducote, demanding judgment against them for any amount which Aetna may be condemned to pay plaintiff. Mr. and Mrs. Ducote filed answers to the third party petition, alleging as a defense that they had entered into a compromise agreement with Mrs. Griffin and her husband, and that plaintiff had formally released the third party defendants from any claims arising out of this accident. Defendant, Aetna, then filed a supplemental answer, denying liability on the additional ground that coverage is excluded under the terms of the policy because of the compromise agreement entered into between plaintiff and Mr. and Mrs. Ducote.

After trial, judgment was rendered by the trial court rejecting plaintiff's demands, and plaintiff has appealed.

The accident occurred on September 30, 1964. The evidence shows that while the two vehicles were approaching each other from opposite directions on a public highway, the automobile being driven by Mrs. Ducote turned suddenly to its left directly in front of the approaching Griffin car, and a collision occurred. The trial judge concluded that Mrs. Ducote's negligence was the sole and proximate cause of the accident, and we agree with that conclusion.

On April 17, 1965, which was several months after this accident occurred, Mr. and Mrs. Griffin executed a 'release' relating to this accident. The major portion of this document reads as follows:

'RELEASE (Safety Responsibility Law)

THE UNDERSIGNED HEREBY CERTIFY THAT he/she is of the age of 21 years or over and that he/she has released Mr. & Mrs. RAPHAEL DUCOTE, 404 South Ash Street, Bunkie, Avoyelles Parish, Louisiana, from all claims and causes of action of the undersinged (sic) arising from the above described accident, and authorized the Department of Public Safety to accept this certification as satisfactory evidence of such release from Liability as required by the Safety Responsibility Law.

THIS RELEASE is not to be construed in any way, as a release of the Aetna Casualty Surety Company, the insurer for Public Liability of the Griffin Automobile. In other words, all rights are reserved by the insured, to proceed against Aetna Casualty & Surety Company under the UNINSURED MOTORIST ACT.'

Simultaneously with the execution of this release, and as consideration therefor, Mr. and Mrs. Ducote paid to Mrs. Griffin and her husband the sum of $100.00. A check representing payment of a portion of that amount was endorsed and cashed by Mr. and Mrs. Griffin, and immediately above their endorsements on the back of the check is the following statement:

'Endorsement of this check constitutes a full receipt and final release of any and all claims of endorsers hereto arising out of the accident which happened on 9/30/64 in Bunkie, Louisiana, between endorsers and Mrs. Raphael Ducote, Case K44162.'

At the time this accident occurred, there was in effect a family automobile policy which had been issued by defendant, Aetna, to Mr. and Mrs. Griffin, covering the automobile which was being driven by plaintiff. Under the provisions of Part IV of this policy the insurer obligated itself to pay all sums which the insured shall be legally entitled to recover as damages from the operator of an uninsured automobile because of bodily injury caused by accident and arising out of the use of such uninsured automobile. With reference to this 'uninsured motorist' coverage, however, and under the heading of 'Exclusions,' the policy further provides:

'This policy does not apply under Part IV: * * * (b) to bodily injury to an Insured with respect to which said Insured his legal representative or any person entitled to payment under this coverage shall, without written consent of the company, make any Settlement with any person or organization who may be legally liable therefor; * * *.' (Emphasis added.)

Mr. and Mrs. Ducote are persons 'who may be legally liable' for damages for the bodily injuries allegedly sustained by the insured, so under the above quoted provision of the policy plaintiff cannot recover under the 'uninsured motorist' provision if she made a 'settlement' with the Ducotes without the written consent of Aetna. Plaintiff has not shown, and she does not contend, that she obtained the written consent of the insurer to enter into a settlement or compromise agreement with the third party defendants.

There are no allegations of fraud or mistake relating to the execution of this release in any of the pleadings which are in the record. At the trial, plaintiff offered oral testimony which shows that one of the principal reasons why the parties entered into this agreement and why the release was signed was to prevent the suspension of Mrs. Ducote's driver's license under the provisions of the Safety Responsibility Law (LSA-R.S. 32:872). Defendant objected to this oral testimony on the ground that it tended to contradict or vary the provisions of the written release. The trial judge felt that the evidence was inadmissible, but he permitted it to be introduced so that it would be available to the reviewing court. It is unnecessary for us to determine whether this evidence is or is not admissible, because we have concluded that under either ruling the outcome of the case would be the same.

Aetna denies liability on the ground that Part IV of the policy, which provides ...