King's Estate v. Aetna Cas. & Sur. Co.
| Decision Date | 03 February 1983 |
| Docket Number | No. 82-454,82-454 |
| Citation | 427 So.2d 902 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | ESTATE OF Elsie C. KING, et al., Plaintiffs-Appellees, v. AETNA CASUALTY & SURETY CO., et al., Defendants-Appellants. |
Gold, Little, Simon, Weems & Bruser, Eugene J. Sues, Alexandria, Dubuisson & Dubuisson, Edward B. Dubuisson, Opelousas, for defendant-appellee.
Morrow & Morrow, J. Michael Morrow, Opelousas, Gilbert Aucoin, Alex D. Chapman, Jr., of Fuselier & Chapman, A. Gaynor Soileau, Ville Platte, for plaintiffs-appellees.
William J. Doran, Jr., Baton Rouge, for defendants-appellants.
Before STOKER, YELVERTON and KNOLL, JJ.
The matters discussed in this opinion arise out of a two-car collision which occurred on Louisiana Highway 112 between Forest Hill and Lecompte. Five cases were consolidated for trial and are considered on this appeal. Separate opinions are being rendered this date in the four other actions. 1
The details of the accident were well stated by the trial court from which we quote as follows:
Mrs. King died approximately 10 hours later as a result of injuries sustained in the accident. She was a widow and is survived by seven children, only one of whom is a minor.
Suit was brought by Laura King Deville (the eldest child) as administratrix of King's estate, as tutrix for the minor child, Rhonda, and for herself along with the five other children against Eddie Johns and his liability insurer, Aetna Casualty and Surety Co.; James Pierce and his liability insurer, West American Insurance Company; King's uninsured motorist insurer, Allstate Insurance Company; and the Louisiana Department of Transportation and Development (DOTD). The same parties were named defendants in separate suits by Martha Clark, Audrey Vidrine, Clara Clark, and Jane Perry. Allstate, along with other individual uninsured motorist insurers named as defendants, have either settled or been dismissed from these actions and are of no consequence in this appeal.
After trial on the merits, judgment was rendered in favor of Johns and Aetna dismissing all claims against them. Judgment was rendered in favor of all plaintiffs and against DOTD and Pierce, in solido. West American Insurance Company placed the proceeds from Pierce's liability policy in concursus and they were distributed accordingly. Damages were awarded as follows:
Estate of Elsie King - medical expenses ........ $ 2,185.11
her pain and suffering .... 50,000.00
Rhonda King - minor child ....................... 150,000.00
Phillip King ..................................... 75,000.00
Laura King Deville ............................... 75,000.00
Gilbert Carol King ............................... 50,000.00
Pearline King Leger .............................. 50,000.00
Darlene King Fee ................................. 50,000.00
Patricia King Deville ............................ 50,000.00
Audrey Vidrine - medical expenses ................. 4,237.41
general damages .................. 25,00.00
Jane Perry - medical expenses ..................... 1,394.09
general damages ...................... 2,500.00
Clara Clark - medical expenses ................... 12,066.25
general damages ................... 150,000.00
Martha Clark - medical expenses ...................... 90.00
general damages ................... 10,000.00
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TOTAL $757.472.88
All third party and incidental demands were denied except that DOTD was granted contribution against Pierce for his virile share. Pierce did not participate in this appeal so all judgments against him have become final.
The primary appellant in this matter is DOTD which claims on appeal that the trial judge erred in finding that the poor condition of the road shoulder was a causative factor in this accident. It asserts that the accident was caused solely by the negligence of Pierce and Johns and seeks reversal regarding the finding of liability on its part and the lack of negligence on Johns' part.
Alternatively, DOTD claims that Elsie King was guilty of contributory negligence which should bar any awards to her survivors. An attack is also made on the trial judge's general damage awards for King's pain and suffering, to her children for her wrongful death, and to Clara Clark for personal injuries alleging that the awards were an abuse of discretion and should be reduced.
All plaintiffs answer the appeal asking for an increase in their general damage awards. Only the King estate and children reassert their claims against Johns and Aetna asking that the trial court judgment finding Johns non-negligent be reversed.
We affirm in part and reverse in part for the following reasons.
It is the position of DOTD that the condition of the shoulders did not present a reasonably prudent driver with an unreasonable risk of harm and that this condition was not a cause of the accident. DOTD maintains that the accident was caused solely by the negligence of Pierce and Johns and the contributory negligence of King.
Numerous employees of the DOTD testified regarding the process of restoring the shoulder. This testimony revealed that when a shoulder is restored with material from a pit leased by DOTD, as it was in this case, no tests are made regarding the relative proportions of sand, clay and gravel contained in the material. If the restoration is done by a private contractor, the material used must meet specifications, particularly in regard to gravel content. Consequently, the material placed on the shoulder of Highway 112 was never tested to determine the adequacy of its content.
Witnesses also testified at trial that several people who parked on either side of the highway immediately following the accident got stuck and had to be pulled out or they experienced difficulty in pulling back onto the pavement due to the slickness of the shoulder. DOTD employees testified almost without exception that this situation would indicate improper compaction or inadequate materials on the shoulder. In view of these facts, we cannot say that the trial judge was clearly wrong in his finding that the condition of the shoulder was a cause of the accident. We also note that the only warnings regarding the shoulder in the area were two "low shoulder" signs facing west placed at a point which King had not reached.
DOTD relies heavily on Johns' statement that he had control of his truck on the shoulder and contends that his re-entry was negligent so as to be a superceding cause of the accident. As the trial court clearly stated, "Of course, even if the Court would hold Johns negligent, it would give little solace to the State, except for limited contribution, as the cases cited by counsel hold that the negligence of the driver doesn't supercede the negligence of the State, but makes the driver a joint tort feasor." Sinitiere v. Lavergne, 391 So.2d...
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