Hryhorchuk v. Smith
| Decision Date | 19 December 1979 |
| Docket Number | No. 7267,7267 |
| Citation | 379 So.2d 281 |
| Parties | Roy HRYHORCHUK, Plaintiff-Appellant, v. Roy M. SMITH et al., Defendants-Appellees-Appellants. |
| Court | Court of Appeal of Louisiana — District of US |
Drewett, Jacques & Thomas, Robert W. Thomas, Lake Charles, for plaintiff-appellant.
Plauche, Smith, Hebert & Nieset, Reid K. Hebert, Stockwell, Sievert, Viccellio, Clements & Shaddock, John S. Bradford, Lake Charles, Robert H. Marve, III, Woodrow W. Wyatt, Baton Rouge, Allen, Gooch & Bourgeois, Raymond M. Allen, Lafayette, Stephen R. Streete, Rester, Van Norman & Wright, Kenneth M. Wright, Hall, Lestage & Hall, H. O. Lestage, III, DeRidder, Raggio, Cappel, Chozen & Berniard, Fred L. Cappel, Camp, Carmouche, Palmer, Barsh & Hunter, G. Michael Bourgeois, Woodley, Barnett, Cox, Williams & Fenet, E. E. Woodley, Scofield, Bergstedt & Gerard, J. Michael Veron, Alvin B. King, Lake Charles, for defendants-appellees-appellants.
Before CULPEPPER, GUIDRY and YELVERTON, JJ.
Plaintiff instituted this suit seeking to recover for personal injuries sustained in an accident which occurred in ward five of Calcasieu Parish on April 28, 1976. When the trial of this matter commenced in May of 1978 the following parties were defendant:
(1) Roy M. Smith and his liability insurer, State Farm Mutual Automobile Insurance Company (hereafter, State Farm).
(2) The Calcasieu Parish Police Jury (hereafter, Police Jury) and its comprehensive general liability insurer, United States Fidelity & Guaranty Company (hereafter, USF & G).
(3) The Calcasieu Parish Sheriff's Department (hereafter, Sheriff's Department) and its liability insurer, North River Insurance Company (hereafter, North River).
(4) The State of Louisiana, through its Department of Public Safety (hereafter, Department of Public Safety).
(5) The State of Louisiana, through the Department of Transportation and Development, Office of Highways (hereafter, Department of Transportation).
(6) William Clifton and his automobile liability insurer, Pennsylvania General Insurance Company, (hereafter, Pennsylvania General).
(7) State Farm Mutual Automobile Insurance Company (hereafter, State Farm), plaintiff's uninsured motorist carrier.
Subsequent to the commencement of trial plaintiff learned that there were additional liability insurers of the Police Jury, i. e., Travelers Insurance Company (hereafter Travelers) and Houston General Insurance Company (hereafter Houston General) and a liability insurer of the Department of Public Safety, Travelers Insurance Company. Upon securing this knowledge, plaintiff offered to file a supplemental petition naming these insurers as additional parties defendant. The trial court refused to allow the filing of this supplemental petition. Because of scheduling difficulties the case was only partially tried in May of 1978 and rescheduled for completion in November of 1978. On August 3, 1978, plaintiff filed an additional suit seeking a declaratory judgment holding that Roy M. Smith was an insured under the policies of insurance issued by Travelers and Houston General to the Police Jury and the policy issued by Travelers to the Department of Public Safety. This suit entitled, Roy Hryhorchuk v. Calcasieu Parish Police Jury et al., La.App., --- So.2d ----, was consolidated for purposes of trial with this matter.
Almost simultaneous with the filing of the declaratory judgment suit, Roy M. Smith filed a third party demand in the first suit against the Police Jury, the Department of Public Safety, the Sheriff's Department, the Department of Transportation, and their respective insurers. The trial court allowed the filing of the third party demand against all defendants except Travelers. Trial of the consolidated matters resumed in November of 1978. At the close of the plaintiff's case the trial court sustained several motions for directed verdicts and dismissed plaintiff's petition for a declaratory judgment and also dismissed all of plaintiff's demands against the Police Jury, USF & G, the Sheriff's Department, North River, the Department of Public Safety and the Department of Transportation, as set forth in the initial suit. Thereafter, the trial continued against the remaining defendants and on the third party demand of Smith, resulting in a judgment as follows:
(a) in favor of plaintiff and against defendants, Roy M. Smith, William Clifton, State Farm and Pennsylvania General, in solido, for $40,000.00 (the limits of liability of the policies issued by State Farm and Pennsylvania General);
(b) in favor of plaintiff and against Smith and Clifton, in solido, for the sum of $587,389.24; and,
(c) dismissing all incidental and third party demands excepting the demand of intervenor, Lawanda Hryhorchuk, plaintiff's wife, who separate in property as a result of a judgment of separation and board, had intervened seeking a share of plaintiff's recovery.
Following rendition of judgment State Farm and Pennsylvania General deposited their respective limits of liability with interest in the registry of court. Judgment was rendered allowing the deposit in full satisfaction of the judgment rendered against the insurers.
Plaintiff and defendants, Roy M. Smith, State Farm, William Clifton, and Pennsylvania General, appealed. Appeals were likewise taken in the declaratory judgment suit, which bears our docket number 7268, in which matter we this day render a separate decree.
Appellants made several specifications of error which are summarized as follows:
(1) The trial court erred in finding Roy M. Smith negligent and his alleged negligence a proximate cause of the accident.
(2) The trial court erred in finding William Clifton negligent and his alleged negligence a proximate cause of the accident.
(3) The trial court erred in failing to find Roy Hryhorchuk guilty of contributory negligence.
(4) The trial court erred in failing to find that Roy M. Smith was an executive officer, employee, and/or direct agent or representative of either, all, or any combination of the following: the Police Jury; the Sheriff's Department; the Department of Public Safety; and, the Department of Transportation.
(5) The trial court erred in failing to find that Roy M. Smith was a legally commissioned deputy sheriff of Calcasieu Parish.
(6) The trial court erred in failing to find that Roy M. Smith was an insured under either, all, or any combination of the policies of insurance issued to the entities names in subsection (4) above.
(7) The award made by the trial court for lost wages and loss of future wages is excessive.
(8) The trial court erred in refusing to consider the inability of the individual defendants to respond in judgment in fixing the award.
The trial judge rendered written reasons for judgment in which he sets forth the facts surrounding the accident which precipitated the filing of this law suit. We have carefully reviewed the voluminous record in this case and find that, except for minor discrepancies explained in footnotes, the trial judge's written reasons, which we quote, clearly and accurately set forth the factual setting.
"On April 27, 1976 ROY HRYHORCHUK was severely injured in an unusual accident. This accident occurred when WILLIAM R. CLIFTON, driving a 1976 Dotson (sic) pick-up truck, collided head-on with an automobile owned by ROY SMITH, and parked in the highway by Smith. The occurrence was on Highway # 12, in the western part of Calcasieu Parish.
Hryhorchuk filed suit against Clifton, Smith, their respective insurers, and his own insurer, who had issued him two policies with uninsured motorist's coverage.
The insurance picture is as follows:
INSURED INSURER LIMITS
-------------------- ---------------------------- ----------
William Clifton Pennsylvania Insurance Co. $10,000.00
Roy M. Smith State Farm Mutual Automobile
Insurance Company $10,000.00
Roy Hryhorchuk
(Uninsured Motorist) State Farm Mutual Automobile
Insurance Co. (2 policies) $20,000.00
Although a number of defendants were included in this action earlier, all, save the defendants listed above, have been dismissed by the court.
A discussion of the facts, and how the court arrived at these facts, follows:
On the night of the accident, Hryhorchuk had been visiting with his family in Texas. That evening, on his way back home he passed over a bridge on Highway # 12 and noticed a pick-up truck straddling the bridge railing off of the roadway. 1 Hryhorchuk recognized the truck as belonging to a friend of his, one Huey P. Thompson. He also saw Thompson sitting on the railing. Hryhorchuk continued home, let off his wife and children, and returned to the bridge to see if Thompson needed any assistance. While Hryhorchuk was on his way back to the bridge, the next event, in what was to be a strange sequence, occurred.
Curtis R. Bartel was also driving Highway # 12 in route from Texas. He was being followed by a friend in another automobile, whose name was Ricky Marcantel. As Bartel approached the bridge, he found that he had to swerve abruptly to miss an automobile coming from the opposite direction. 2 This sudden maneuver confused his friend, Marcantel, and Marcantel temporarily lost control of his automobile and struck the guard railing.
This was a minor accident and the occurrence of this accident itself is disconnected with the fact that the pick-up truck was lodged on the guard rail. While there may be some argument that this would be a strange coincidence, a closer view of Bartel's testimony and all other facts show that there was no connection between the position of Huey Thompson's pick-up and Ricky Marcantel's accident. The importance of this determination will be seen later on. 3
William Chapman, on the night of the accident, was an employee with the Department of Transportation and was on duty at a weigh station off of...
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