Lee v. USAA Cas. Ins. Co.

• Decision Date: 28 February 1989
• Docket Number: Nos. CA,s. CA
• Citation: 540 So.2d 1083
• Parties: Jeanne Y. LEE and W. Chapman Lee, Individually and as Administrator of the Estate of Jeanne Elise Lee v. USAA CASUALTY INSURANCE COMPANY, Safeco Insurance Company of America, CNA Insurance Companies, Rolfe R. Schroeder, Individually and as Administrator of the Estate of Andrew E. Schroeder, and Country Corner Food Stores, Inc. Robert H. WEAVER, Jr., Individually and as Administrator of the Estate of the Minor, Amelie Helene Weaver and Geraldine B. Weaver v. UNITED STATES AUTOMOBILE ASSOCIATION, Safeco Insurance Company of America, Continental Casualty Company, Rolfe R. Schroeder, Individually and as Administrator of the Estate of Andrew E. Schroeder, Country Corner Food Store, Inc. and State Farm Fire & Casualty Company. 87 1388, CA 87 1389. 540 So.2d 1083
• Court: Court of Appeal of Louisiana — District of US

Page 1083

540 So.2d 1083

Jeanne Y. LEE and W. Chapman Lee, Individually and as Administrator of the Estate of Jeanne Elise Lee v. USAA CASUALTY INSURANCE COMPANY, Safeco Insurance Company of

America, CNA Insurance Companies, Rolfe R. Schroeder,

Individually and as Administrator of the Estate of Andrew E.

Schroeder, and Country Corner Food Stores, Inc.

Robert H. WEAVER, Jr., Individually and as Administrator of

the Estate of the Minor, Amelie Helene Weaver and Geraldine B. Weaver v. UNITED STATES AUTOMOBILE ASSOCIATION, Safeco Insurance

Company of America, Continental Casualty Company, Rolfe R.

Schroeder, Individually and as Administrator of the Estate

of Andrew E. Schroeder, Country Corner Food Store, Inc. and

State Farm Fire & Casualty Company.

Nos. CA 87 1388, CA 87 1389.

540 So.2d 1083

Court of Appeal of Louisiana,

First Circuit.

Feb. 28, 1989.

Writ Denied April 28, 1989.

James P. Dore and Allen Edwards, Plaquemine, for plaintiffs-appellees, Jeanne Y. Lee, et al.

Raymon G. Jones, New Orleans, for defendant-appellant, Continental Cas. Co.

Carolyn P. Perry, Robert Funderburk, Baton Rouge, for defendant-appellant, Safeco Ins. Co. of America.

Robert W. Smith and Boris F. Navratil, Baton Rouge, for defendants-appellants, Rolfe R. Schroeder, etc.

Philip Bohrer, Baton Rouge, for defendant-appellant, Country Corner Food Store, Inc.

James Zito, Baton Rouge, for defendant-appellee, City of Baton Rouge.

Dermot McGlinchey, Frederick Campbell, and Michael Guillory, New Orleans, for defendant-appellee, Continental Ins. Co. Louisiana State University.

Vincent Fornias, Baton Rouge, for plaintiff-appellee, Robert Weaver.

Before WATKINS, CRAIN and ALFORD, JJ.

ALFORD, Judge.

Jeanne Y. Lee and W. Chapman Lee (the Lees), individually and as administrators of the estate of their minor child, Jeanne Elise Lee (Jeanne Elise), commenced these proceedings on April 4, 1984, to recover damages for the injuries Jeanne Elise sustained as the result of an automobile accident which occurred on October 29, 1983. ¹ The Lees named as the defendants:

(1) Rolfe R. Schroeder, individually and as administrator of the estate of his minor child, ² Andrew Erickson Schroeder (Eric Schroeder), the underinsured driver of the automobile which collided with Jeanne Elise's vehicle;

(2) USAA Casualty Insurance Company of America (USAA), the liability insurer of Schroeder;

(3) Safeco Insurance Company of America (Safeco), the liability insurer of the Lees;

(4) Continental Casualty Company (CNA), the personal umbrella excess carrier of the Lees; and

(5) Country Corner Food Stores, Inc. (Country Corner), the convenience store which sold beer to the minor, Eric Schroeder. ³

The facts surrounding this accident began shortly before noon on October 29, 1983. Seventeen-year-old Eric Schroeder received permission to drive his father's 1979 Oldsmobile Cutlass to a Sadie Hawkins Day school event at University High in Baton Rouge, Louisiana, where Eric was a senior. On the way to the event Eric picked up a classmate, James Bradley Aucoin (Bradley), to give him a ride. Eric then stopped at the Country Corner store and illegally purchased a six-pack of beer, drove to McDonald's near the LSU campus and purchased a couple of hamburgers and drove to the University High parking lot, arriving around 12:30 p.m. Eric and Bradley then visited in the car while Eric ate and drank all but one beer, which he gave away to a friend. After eating, Eric and Bradley participated in the Sadie Hawkins Day activities. At about 4:15 p.m. the senior class sponsor, Mrs. Gail Ater, asked Bradley to buy some more ice for the evening activities and she provided Bradley with money for the ice. Since Bradley did not have a car, he asked Eric to drive him to the Brown-Eagle Ice Company. Eric obliged and after picking up the ice, Eric and Bradley returned to the Country Corner where Eric illegally purchased another six-pack of beer. The accident with Jeanne Elise occurred on the way back to University High, on Dalrymple Drive.

Eric was driving approximately 40 m.p.h. (in a 30 m.p.h. zone) in a southerly direction on Dalrymple. Just before the intersection of Dalrymple and Washington Streets, Eric lost control of his vehicle, ran the right side of his car off the right side of the road and then suddenly pulled his automobile back onto the road where he shot across the center line into the northbound lane of traffic. Eric's vehicle crashed head on into sixteen-year-old Jeanne Elise's 1981 Datsun 510. Jeanne Elise was severely injured, narrowly escaping death due to the efforts of a bystander. Jeanne Elise sustained massive facial fractures and deep facial lacerations; part of her nose had been amputated; she lost 14 teeth; she had a sub-orbital "blow out" fracture of her left eye; she suffered a near complete amputation of her left index finger; she had a broken left wrist with severe lacerations, a broken collar bone, a broken first right rib and a deep laceration down to the kneecap on her left knee.

After two and one-half years, and fifteen operations performed on Jeanne Elise, the Lees' case went to trial on June 2, 1986. Subsequent to a trial by jury, a verdict was rendered finding substandard conduct on the part of Eric Schroeder and Country Corner ⁴ and assessing their fault at 68% and 32%, respectively. The jury determined the Lees had been damaged in the following amounts:

After a June 12, 1986, hearing regarding insurance coverage, the trial court rendered judgment (1) condemning USAA to pay a sum not to exceed the limits of its policy (determined to be $100,000) plus legal interest to the Lees; (2) condemning Safeco to pay a sum not to exceed the limits of its policy (determined to be $250,000) plus legal interest to the Lees; and (3) condemning CNA to pay a sum not to exceed the limits of its policy (determined to be $2,000,000) plus legal interest. CNA, Safeco and the Schroeders sought this appeal, raising numerous errors regarding uninsured motorist coverage, limits of liability and quantum. Each issue will be addressed separately, outlining each party's argument.

PROCEDURAL ISSUES

For the first assignment of error it is necessary to outline some procedural facts. On May 23, 1986, (a few days before trial) defendant, Schroeder, moved for leave of court to file a third party demand against LSU and its insurer, Continental Insurance Company (Continental), and for a continuance of trial. The trial judge denied the motion on May 29, 1986. Safeco and CNA also attempted to third party LSU and Continental during the trial; however, the trial judge denied both motions. On May 30, 1986, Safeco had LSU served with a subpoena duces tecum requesting that LSU bring the following documents to court on June 2, 1986:

All insurance policies (1) affording automobile liability coverage to Louisiana State University, its employees, staff, etc. and others; (2) all comprehensive general liability policies; and (3) all excess and umbrella policies, providing coverage on 10/29/83.

LSU and its insurer, Continental, filed a motion to quash the subpoena duces tecum on the grounds that the requested policies and information contained therein were irrelevant to the lawsuit and that the production of the requested documents would be prejudicial to LSU and Continental since neither was a party to the lawsuit nor represented at the trial which was underway. The trial judge granted the motion to quash the subpoena duces tecum. At that point, Safeco attempted to proffer Continental's insurance policies even though Safeco did not have possession of the policies. The trial judge refused the proffer. CNA and Safeco argue on appeal that the trial judge erred in quashing the subpoena duces tecum and in not allowing a proffer of Continental's policies. We disagree.

CNA and Safeco rely on Keller v. Amedeo, 512 So.2d 385 (La.1987), for the principle that their attempt to prove other insurance available for Schroeder under Continental's policy is "in reality a negative defense which seeks to refute an essential allegation of the plaintiff's petition." CNA and Safeco argue that it was error for the trial judge to disallow proof that Schroeder was not underinsured. We find of particular import the judge's reasons for quashing the subpoena duces tecum:

The Court notes that the subject subpoenas were issued in connection with Safeco's motion for leave to file a third party demand. The Court also notes that the said motion and all respective third party demands which have been filed since May 29, 1986, have been uniformly denied. The Court further notes that that date, May 29, 1986, is less than two working days prior to the date of this trial. The Court considered this to be a matter of extreme difficulty, number one, but also a matter of discretion and, accordingly, the Court grants the Motion to Quash. [Emphasis added.]

We do not understand why Safeco and CNA did not think of this "important negative defense" until two days before trial. The fact that LSU could have possibly been involved in some way was not hidden from CNA and Safeco. We agree with the Lees' argument that the trial judge has great discretion in this matter. La.Code Civ.P. art. 1354 states in pertinent part that "the court in which the action is pending in its discretion may vacate or modify the subpoena if it is unreasonable or oppressive." (Emphasis added.) Additionally, Louisiana jurisprudence recognizes the trial judge's discretion in quashing an unreasonable or oppressive subpoena. Thomas v. Weatherford International, 463 So.2d 751 (La.App. 4th Cir.1985); Bank of New Orleans and Trust Company v. Reed Printing & Custom Graphics, Ltd., 399 So.2d 1260 (La.App. 4th Cir.1981). We find that this subpoena duces tecum issued two days before trial to entities not even involved in the lawsuit was unreasonable. Therefore, we find that there was no abuse of discretion, and the ruling of the trial court was not in error.

As for the...