Guillory v. Trinity Universal Ins. Co.

• Decision Date: 09 December 1987
• Docket Number: 86-1124,Nos. 86-1123,s. 86-1123
• Parties: Patsy N. GUILLORY, Plaintiff-Appellant, v. TRINITY UNIVERSAL INSURANCE COMPANY, et al, Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 1071

520 So.2d 1071

Patsy N. GUILLORY, Plaintiff-Appellant, v. TRINITY UNIVERSAL INSURANCE COMPANY, et al, Defendants-Appellees.

Nos. 86-1123, 86-1124.

Court of Appeal of Louisiana, Third Circuit.

Dec. 9, 1987.

Preston N. Aucoin, Ville Platte, for plaintiff-appellant.

Gold, Simon, etc., John F. Simon, Alexandria, Guglielmo, Lopez & Tuttle, James C. Lopez, Opelousas, Gerard N. Torry, Baton Rouge, for defendants-appellees.

Before DOMENGEAUX, GUIDRY and LABORDE, JJ.

GUIDRY, Judge.

Plaintiff, Patsy N. Guillory, filed the instant suit 520 So.2d 1075 (La.App. 3 Cir.1987), alleging personal injury arising out of an accident, which occurred on or about December 9, 1983, and prayed for judgment in the sum of $120,000.00. Diane D. Reilly, her husband, Michael Reilly, and their insurer, Trinity Universal Insurance Company (Trinity) were named as defendants. The defendants answered, generally denying plaintiff's allegations, and prayed for a trial by jury. By order dated January 11, 1985, the jury request was granted and a bond was timely filed.

Based on answers to interrogatories indicating the limits of the Trinity policy at $10,000.00, the plaintiff supplemented and amended her petition to name her uninsured motorist carrier, Allstate Insurance Company (Allstate), as an additional defendant. On joint motion of plaintiff and defendants, other than Allstate, plaintiff's claims against Diane and Michael Reilly were dismissed without prejudice, leaving Trinity and Allstate as the sole defendants.

Allstate, as the UM carrier, filed a cross-claim against Trinity, Diane D. Reilly and Michael Reilly. Subsequently, this matter was set for jury trial on February 3, 1986 but was continued without date.

By a second amending petition, the plaintiff reduced her demand to $9,999.99. Because of this reduction in her demand, plaintiff requested that the court rescind the jury trial order and conduct a bench trial. The trial court permitted the filing of plaintiff's second amending petition and rescinded its previous order allowing a jury trial. Thereafter, Allstate, the UM carrier, filed a motion for summary judgment based upon the premise that, considering the amount of the plaintiff's demand and the limits of the Trinity policy, the Reilly vehicle is not an underinsured motor vehicle such as would trigger coverage under the Allsate policy. By judgment dated November 3, 1986, and supplemented on November 14, 1986, the motion for summary judgment was granted. This appeal followed.

By a separate suit, Patsy N. Guillory filed a claim against Allstate under the medical payment provisions of the Allstate policy. This suit was consolidated with the suit which bears our docket number 86-1123 and remains so on appeal. Allstate filed a motion for summary judgment seeking dismissal of plaintiff's claim on the basis that, under the terms of the policy, there is no medical payment coverage except for treatment, services, or products rendered within one year after the accident. It was undisputed that all of the bills for medical expenses, which the plaintiff claims were incurred as a result of the December 9, 1983 accident, were for medical treatment, services or products rendered to plaitniff after December 9, 1984. Upon this showing, the trial court sustained Allstate's motion for summary judgment. Plaintiff's appeal in this latter case bears our docket number 86-1124.

Since the cases were consolidated at the trial level and remain so on appeal, we will decide all issues presented in both appeals in this opinion, but we will render a separate decree in number 86-1124.

In the suit which bears our docket number 86-1123, the sole issue on appeal is whether the trial court erred in dismissing plaintiff's suit against her uninsured motorist carrier when it is undisputed that the plaintiff, by amended petition, reduced her demand for damages to a sum less than the automobile liability coverage of the alleged tortfeasor.

The record reflects that the policy limits of the policy issued by Trinity to the Reillys provides limits of $10,000.00 for personal injury per individual, $20,000.00 for personal injury per occurrence, and $10,000.00 for property damage per occurrence. Plaintiff was insured by Allstate under a UM policy with a $10,000.00 limit for bodily injury per person. The trial court, on application of the plaintiff, allowed the filing of a second amending petition whereby plaintiff reduced her demand to $9,999.99, a sum for which Trinity provides liability coverage under the aforestated policy. Thus, it is clear that, considering the amount of damages which plaintiff seeks, defendant, Diane D. Reilly, is not an underinsured motorist and plaintiff is entitled to no recovery under the UM provisions of the Allstate policy.

In spite of the above, plaintiff argues that the trial judge erred because conceivably plaintiff might establish her entitlement to a sum greater than that for which she prayed in her petition and, if so, the trial court could, with authority, grant the greater award. We disagree.

In Smith v. Moncrief, 421 So.2d 1127 (La.App. 3rd Cir.1982), writ denied, 426 So.2d 177 (La.1983), we cited the following well established jurisprudential rule from our holding in Ehrhardt v. Cummins, 369 So.2d 213 (La.App. 3rd Cir.1979), writ denied, 369 So.2d 1366 (La.1979):

"The general rule is that a litigant may not recover an amount greater than that for which he prayed in his petition. Friedman Iron and Supply Co. v. J.B. Beaird Co., Inc., 222 La. 627, 63 So.2d 144 (1952); Alumaglass Corp. v. Succession of Kendrick, 303 So.2d 911 (La.App. 1st Cir.1974); writs refused February 14, 1977. The only exception to this rule of which we are cognizant involves elements of special damages in situations when otherwise inadmissible evidence is admitted without objection and the pleadings are enlarged to that extent. LSA-C.C.P. Article 1154; Sterkx v. Gravity Drainage District No. 1 of Rapides Parish, 214 So.2d 552, (La.App. 3rd Cir.1968), writs refused [252 La. 964, 215 So.2d 130] November 15, 1968."

Considering this settled principle, we conclude that the trial court did not err when it granted Allstate's motion for summary judgment. It would be patently unfair to permit a plaintiff leave to amend his petition seeking a sum below the amount required for a jury trial, thus depriving the defendant of a jury trial and at the same time allow the plaintiff recovery over and above the amount for which he prayed.

In the suit which bears our docket number 86-1124, the sole issue on appeal is whether Allstate, as a matter of law, is obligated under the medical payment provisions of its policy to pay medical expenses incurred by the plaintiff as a direct consequence of the accident of December 9 1983, if such medical expenses are for treatment, services or products "rendered" more than one year after the accident.

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