Hopkins v. Sovereign Fire & Cas. Ins. Co.

• Decision Date: 03 November 1993
• Docket Number: Nos. 93-246,s. 93-246
• Citation: 626 So.2d 880
• Parties: Kerry HOPKINS, et al., Plaintiff-Appellee, v. SOVEREIGN FIRE & CASUALTY INSURANCE COMPANY, et al., Defendants-Appellants. Danny W. CRAIG, et al., Plaintiffs-Appellants, v. Clyde J. TAYLOR, et al., Defendants-Appellees. Clyde J. TAYLOR, et al., Plaintiffs-Appellees, v. Danny W. CRAIG, et al., Defendants-Appellants. to 93-247.
• Court: Court of Appeal of Louisiana — District of US

Page 880

626 So.2d 880

Kerry HOPKINS, et al., Plaintiff-Appellee, v. SOVEREIGN FIRE & CASUALTY INSURANCE COMPANY, et al.,

Defendants-Appellants.

Danny W. CRAIG, et al., Plaintiffs-Appellants, v. Clyde J. TAYLOR, et al., Defendants-Appellees.

Clyde J. TAYLOR, et al., Plaintiffs-Appellees, v. Danny W. CRAIG, et al., Defendants-Appellants.

Nos. 93-246 to 93-247.

Court of Appeal of Louisiana,

Third Circuit.

Nov. 3, 1993.

Rehearing Denied Dec. 16, 1993.

Jack O. Brittain, Otis Edwin Dunahoe Jr., for Kerry Hopkins et al.

Bradford Henry Walker, for Sovereign Fire & Cas. Ins. Comp.

Peggy Dean St. John, Carolyn Jeanelle Smilie, for Allstate Ins. Co.

Stephen Thomas Collins, for Danny Craig et ux etc.

Steven D. Crews, John Haas Weinstein, for Clyde Taylor, State Farm and Gulf Coast.

Craig Owen Marcotte, for Larry and Brady Ueckert.

Kenneth Mascagni, for Off. S. Scott and City of Many.

Steven Randal Thomas, for Leon Sepulvado, et al.

Charles W. Salley, for Larue Cholvitee and Colonial Penn.

Ted David Hernandez, Bonnie Moore, for State of La., D.O.T.D.

Before DOMENGEAUX, C.J., and LABORDE and COOKS, JJ.

LABORDE, Judge.

This consolidated action concerns a head-on collision that resulted in severe injuries. Motions for summary judgment were granted in favor of several defendants: proprietors of the establishment that sold alcohol to a minor; the minor who purchased the liquor; the City of Many and a police officer of that community who earlier did not arrest two minors, one of whom would later be involved in the accident; and parties connected with one of the two vehicles involved in the accident.

Finding issues of material fact exist as to some of the claims, we reverse in part and affirm in part.

FACTS

On the morning of August 9, 1990, fourteen year old Shasitiy Larue and her seventeen year old cousin Janelle Craig received a telephone invitation to a party at the home of sixteen year old Lance Hopkins. Lance's parents were out of town on vacation.

The girls and other teenagers went to the Hopkins home. At some point, the teenagers decided to purchase liquor at the "Silver Bullet." About 12:20 p.m., Shasitiy entered the store on two separate occasions to purchase beer, wine, and "Brass Monkey." After purchasing alcohol alone the first time, Shasitiy began to leave when Brady Ueckert and Lance Hopkins pulled up in Chad Brandon's truck. Shasitiy went back into the store with the boys to purchase some more alcohol. On one of the two occasions, the clerk behind the counter at the Silver Bullet approved her purchase of alcohol although she was not yet eighteen years old. According to Shasitiy, the cashier looked at her driver's license and said: " '72, okay." Shasitiy's birthday is October 27, 1972.

Armed with these beverages, the teenagers returned to the unchaperoned home of Lance Hopkins and enjoyed them with their friends. Later, Brady drove Janelle to get something to eat in Many, Louisiana. Not long afterward, the Many Police Department received a complaint that persons in a maroon four wheel drive pickup had "flipped her off" and could be found near the local Hardee's restaurant. Nine year veteran Many police officer Carl Scott encountered Janelle Craig and Brady Ueckert near the Hardee's. It is unclear whether both adolescents or only Brady were standing in the parking lot of the Phares and Lite Insurance Company in Many at about 6 p.m.

After speaking to Brady Ueckert and Janelle Craig, Officer Scott erroneously determined that the admittedly unlicensed Janelle Craig was driving, not Ueckert. According to the officer, for this reason he did not give Ueckert a field sobriety test notwithstanding his hunch that Ueckert may have been drinking. (Although the lad was not slurring his speech or walking irregularly, he was "red-faced.")

Officer Scott also spoke to Janelle Craig and got as near as three to five feet from her. Believing the fourteen year old spoke and behaved normally, he did not think she was under the influence of alcohol and did not give her a field sobriety test.

Faced with two occupants who appeared incapable of driving for different reasons, Officer Scott asked Jody Britt, who happened to be in the vicinity, to drive Ueckert and Craig away in Ueckert's vehicle. Officer Scott, who knew Britt to be a reputable young man and volunteer fireman, saw him drive the Ueckert truck out of town with Janelle Craig and Brady Ueckert. On the way to Lance's house, designated driver Jody Britt apparently saw Lance Hopkins, who agreed to drive Britt back to pick up the truck he had left in town. At this point, Brad Ueckert asked Janelle Craig to replace Britt in the driver seat, and the two returned to Lance Hopkins' house.

About an hour and a half later, Janelle announced that she was ready to go home. At approximately 8:10 p.m., a truck driven by Clyde Taylor and owned by Gulf Coast Machines and Fabrications, Inc., was heading west on Louisiana Highway Six when it collided with the Hopkins vehicle, which was travelling east on the same road. Ryan Taylor was a passenger in the vehicle driven by his father. The Taylor vehicle was pulling a boat trailer at the time of the accident.

Janelle Craig, Lance Hopkins and Brady Ueckert were riding in the Hopkins vehicle at the time of the accident. The driver of the truck is unclear. Ueckert testified Janelle was driving the vehicle. Due to her injuries, Janelle had no memory of the accident itself but claimed she was not driving.

Lance Hopkins and Brady Ueckert testified that the accident occurred in the eastbound lane of travel and that the Taylor vehicle caused the collision by coming into the eastbound lane. The accident occurred in a short straight stretch between the two curves. Lance Hopkins testified that his vehicle overtook Ms. Patsy Derrick's vehicle in a passing zone and had returned to its proper lane seconds before impact. He testified he could not see the Taylor vehicle until the Hopkins vehicle returned to its lane.

Lee Arthur testified by way of deposition, that he witnessed an accident in August of 1990 on Highway Six near Many, Louisiana. Mr. Houston testified he was headed west on Louisiana Highway Six when a white truck with a boat on a trailer passed him in a curve marked as a "no passing" zone. The truck pulling the boat completed the passing maneuver and then began to "wobble" or "fishtail" over the center line. This "fishtailing" occurred twice, and after the second time, the truck pulling the boat collided with the adolescents' blue pick-up truck.

Trooper Raymond Isgitt, the investigating officer, testified at his deposition that the brakes of the Taylor vehicle were applied in the wrong lane of travel. He further offered his opinion that the Taylor vehicle was attempting to avoid the Hopkins vehicle although he did not know whether the Hopkins vehicle had re-entered its lane of travel prior to the accident.

PROCEEDINGS BELOW

Several suits were filed as a result of the accident of August 9, 1990. Kerry Hopkins, individually and on behalf of Lance Hopkins, and Evelyn Hopkins filed suit to recover damages resulting from Lance D. Hopkins' injuries while riding in the 1982 GMC Sierra Classic pick-up truck owned by his parents and allegedly driven by Janelle Craig. Additionally, Clyde and Vivian Taylor filed suit individually and on behalf of their minor son Ryan alleging that father and son were both injured in the accident. Allstate as the alleged insurer of Danny Craig was named a defendant in both suits. Other defendants in the Taylor suit include Leon, Ella, Tammy and Bud Sepulvado ("the Sepulvados"), proprietors of the Silver Bullet liquor store, and their insurer.

Finally, Janelle Craig's parents individually and on her behalf filed suit. Defendants in the Craig suit include State Farm Mutual Automobile Insurance Company, insurer of the Gulf Coast Machine & Fabrications, Inc. vehicle and its driver, Clyde Taylor; the City of Many and Officer Scott; and Shasitiy Lenee Larue's mother and her insurer, Colonial Penn Insurance Company.

Motions for Summary Judgment filed by several parties were granted by the trial court. The Motion for Summary Judgment filed by Clyde Taylor, State Farm, and Gulf Coast, was granted by judgment dated December 23, 1992; the one filed by the Sepulvados was granted January 13, 1993; and that of the Larues and Colonial Penn on December 28, 1992.

ASSIGNMENTS OF ERROR

On appeal the Craigs and their insurer assert the trial court erred in granting the Motions for Summary Judgment. Both assign as error the summary judgments granted in favor of the Sepulvados as well as State Farm, Gulf Coast and Clyde Taylor. The Craigs additionally argue that the trial judge erred in granting summary judgments for Shasitiy LaRue's mother, Hilda LaRue Cholvites, and her insurer, Colonial Penn; and the City of Many and Many police officer Carl Scott.

For reasons of clarity, we separately set forth general criteria concerning our appellate review of summary judgments, followed by our more specific applications of the law as it applies to each summary judgment rendered in these proceedings.

SUMMARY JUDGMENT

Summary judgment may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages, provided the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled as a matter of law. LSA-CCP 966.

The analytical process properly used to consider whether to grant a summary judgment is outlined in Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772, 775 (La.1980). On a motion for summary judgment, the court first must determine whether the supporting documents presented by the moving party are filed in compliance with the Code of Civil Procedure and are sufficient to resolve all material fact issues in favor of the mover. The pleadings,...