LeJeune v. Allstate Ins. Co.

• Decision Date: 13 November 1978
• Docket Number: No. 61748,61748
• Citation: 365 So.2d 471
• Parties: Theotis Fontenot LeJEUNE et al., Plaintiffs-Relators, v. ALLSTATE INSURANCE CO. et al., Defendants-Respondents.
• Court: Louisiana Supreme Court

Page 471

365 So.2d 471

Theotis Fontenot LeJEUNE et al., Plaintiffs-Relators, v. ALLSTATE INSURANCE CO. et al., Defendants-Respondents.

No. 61748.

Supreme Court of Louisiana.

Nov. 13, 1978.

Rehearings Denied Dec. 14, 1978.

Guillory, McGee & Mayeux, Robert K. Guillory, Eunice, Fuselier, Pucheu & Soileau, L. O. Fuselier, Ville Platte, for plaintiff-applicant.

Durrett, Hardin, Hunter, Dameron & Fritchie, H. Evans Scobee, Calvin E. Hardin, Jr., Baton Rouge, for defendant-respondent.

Stephen A. Berniard, Jr., Raggio, Farrar, Cappel & Chozen, Lake Charles, C. Brent Coreil, Ville Platte, for Danny Glenn Lefleur, third-party, defendant-respondent.

Arthur I. Robison, Allen, Gooch & Bourgeois, Lafayette, for Ins. Co. of North America, intervenor-respondent.

Jack C. Fruge, Sr., Fruge & Vidrine, Ville Platte, for Dixie Auto Ins. Co.

Patrick A. Juneau, Jr., Voorhies & Labbe, Lafayette, for Western World Ins. Co.

L. Lane Roy, Davidson, Meaux, Sonnier & Roy, Lafayette, for Allstate Ins. Co.

Randall Molitor and Mrs. Ivey Molitor, Joe A. Brame, Brame, Bergstedt & Brame, Lake Charles, for Zurich Ins. Co.

J. Nilas Young and Joseph Bradley Ortego, Young & Burson, Ltd., Eunice, for Ivy Fruge Molitor, all defendants-respondents.

TATE, Justice.

This is a wrongful death action. While riding as a passenger in a funeral hearse, the decedent was killed as the result of a collision at an intersection through which the funeral cortege was proceeding. The trial court awarded the decedent's survivors judgment against some of the defendants, rejecting the demands against others, and the court of appeal essentially affirmed. 356 So.2d 537 (La.App. 3rd Cir. 1978).

We granted certiorari, 358 So.2d 956 (La.1978), principally to consider the following issues: (1) whether a cause in fact of the decedent's death was the negligence of a deputy sheriff in failing to secure properly the intersection through which a funeral cortege was passing; and (2) whether the general employer of a negligent employee, driver of one of the vehicles, remained liable for its employee's tort, despite the circumstance that the employee had been borrowed to perform services for a special employer at the time of the accident. (Also involved are certain other substantial issues of coverage of the policies issued by the insurers of the sheriff's department, of the general employer, of the special employer, and of the driver of the hearse.)

Procedural Context

The collision occurred at the intersection of two rural highways. The vehicles involved were the hearse in which the decedent LeJeune was riding, the driver (Danny Lafleur) of which had failed to stop at a flashing red light; and an automobile being driver by Randall Molitor at a grossly excessive rate of speed on the favored highway. The deputy sheriff (Willie Smith) assigned to escort the funeral procession had failed to secure the intersection, so that vehicles in the funeral cortege could safely proceed, without stopping, through the intersection despite its inhibiting red light.

The widow and children of LeJeune bring this wrongful death action to recover from numerous defendants, principally: (1) Molitor, the driver of the speeding automobile and his insurer; (2) the general liability and the automobile liability insurer of the sheriff's department, which allegedly furnished coverage for the negligence of Deputy Smith in failing to secure the intersection through which the funeral cortege was passing; and (3) the family automobile insurer of Lafleur, the driver of the hearse, and also the insurer of both his general and his special employer at the time of the accident. ¹

The trial court held that the collision resulted from the concurring negligence of Molitor and Lafleur, but it also held that the negligence of Deputy Smith was not a cause-in-fact of the accident. It awarded judgment against Molitor and his insurer and against Lafleur's family automobile insurer, but it denied recovery against all other parties, including the insurer of both the general and special employer of Lafleur. ² The court of appeal essentially affirmed, although amending the judgment so as to deny recovery against Lafleur's family automobile policy under an exclusion clause. ³

Facts

The collision occurred at the intersection of Louisiana State Highways 10 and 13, two hard-surfaced rural highways. A funeral procession was proceeding northward on Highway 13. The plaintiffs' decedent, Rolance LeJeune, was the director of Ardoin's Funeral Home of Mamou, Inc. ("Mamou"). He was riding in a hearse driven by Danny Lafleur, an employee of Ardoin's Funeral Home of Ville Platte, Inc. ("Ville Platte"), a corporation distinct from Ardoin's of Mamou. Lafleur was driving in the procession at the direction of his employer (Ville Platte), pursuant to a request by LeJeune. The funeral cortege was led by an Evangeline Parish sheriff's car driven by deputy Willie Smith.

At the intersection where the collision occurred, traffic on Highway 13 (on which the cortege was approaching) is controlled by a flashing red light, requiring vehicles to stop and yield to traffic on Highway 10 before proceeding into the intersection. Traffic on Highway 10 (on which Molitor was approaching) is controlled only by a flashing yellow light, requiring vehicles to proceed with caution into the intersection. When he approached the intersection and the flashing red light, Deputy Smith stopped, looked both ways, saw no approaching traffic on Highway 10, and proceeded across the intersection. He did not stop and secure the intersection with his automobile, nor did he get out of the car to direct traffic so that the funeral cortege could continue safely through the intersection without the need for each vehicle to stop at the flashing red light.

Deputy Smith, 68 years of age, had never before led a funeral procession on this route. He was untrained in the manner in which such a procession was to be escorted, and in the manner in which intersecting avenues of travel should be secured to allow unimpeded travel to a funeral cortege.

The witnesses differ as to whether the hearse driven by Lafleur was the second or third vehicle in the cortege. Upon arriving at the intersection, Lafleur slowed down but did not stop. He observed that the intersection had not been secured by the police escort and that no one was directing traffic, and he could see the flashing red light.

At this point Lafleur also noticed a vehicle being driven by Molitor, proceeding on Highway 10 toward the intersection. Molitor was driving at a grossly excessive rate of speed, and gave no sign that he was preparing to stop at the intersection. Nevertheless, Lafleur drove the hearse into the intersection.

At this point, Molitor's vehicle was about 300 feet from the intersection. Molitor attempted to stop and laid down skid marks for about 154 feet before striking the hearse, a few feet after the hearse had cleared the intersection. Molitor and Lafleur were injured, and LeJeune, the funeral director who was riding in the hearse, was killed.

Issues

The principal issues before us concern:

(1) Whether the negligence of Deputy Smith was a cause-in-fact of the accident;

(2) If so, whether his negligence is covered by either or both of the two liability insurance policies issued to the sheriff's department;

(3) Whether Lafleur's general employer, Ville Platte, is liable for the injuries caused by his negligence in proceeding into the intersection in the face of a blinking red light and after observing Molitor's right-of-way vehicle approaching at unchecked speed. This issue involves a consideration of whether the circumstance that, at the time of the accident Lafleur was a "borrowed employee" of Mamou, relieves Ville Platte of its usual liability for the torts of its employee in performing business duties for it.

(4) What was the effect of Lafleur's status as a "borrowed employee" upon the liability of the coverage afforded Ville Platte (his general employer) and Mamou (his special employer) under a policy with a "fellow employee" exclusion clause. ⁴

1. Was Deputy Smith's Negligence a Cause in Fact of the Accident?

The negligence of both drivers undoubtedly contributed to the accident: Lafleur, by proceeding into the intersection under the circumstances; and Molitor, by his heedless approach at high speed, in the face of the amber caution light, towards the intersection until too near to be in effective control of his vehicle.

Both previous courts indicated, although they did not expressly so hold, that Deputy Smith was also negligent in failing to stop and secure this principal intersection to permit safe and unstopping passage of the funeral cortege through it. The previous courts found, however, that Smith's negligence was not a cause in fact of the accident.

A negligent party may not be held liable where his negligence is not a cause in fact of the accident i. e., where the negligence is not a substantial factor in bringing about the harm. Dixie Drive It Yourself System v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962); Restatement of Torts, 2d, Sections 431-33 (1965). As noted in the Restatement, factors which may be considered in determining whether the actor's negligence is a substantial factor include "whether the actor's conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm * * *." Section 433(b).

For reasons to be stated, the trial court and the court of appeal applied an incorrect legal standard in determining whether, under the virtually undisputed facts, Deputy Smith's negligence, if any, was not a cause in fact of the collision. Accepting the facts as found by the trial court, it is clear that Deputy Smith was negligent, and that his negligence was a substantial factor in bringing about the collision.

Deputy Smith's duty was to do what was necessary to ensure that the funeral cortege could pass safely...