Lester v. Protective Life Ins. Co.
| Citation | 57 Ala.App. 718,331 So.2d 727 |
| Parties | Joetta LESTER v. PROTECTIVE LIFE INSURANCE COMPANY, a corporation and Alabama Motorists Association, Inc. a corporation. Civ. 691. |
| Decision Date | 05 May 1976 |
| Court | Alabama Court of Civil Appeals |
O'Bannon & Gonce, Florence, for appellant.
E. B. Haltom, Jr., Florence, for appellees.
This appeal is from the Circuit Court of Lauderdale County. Plaintiff-appellant, Mrs. Joetta Lester, brought an action against the defendant-appellees, Protective Life Insurance Company and Alabama Motorists Association, Inc. The action sought recovery of accidental death benefits payable under an accident insurance policy issued by defendant Protective Life Insurance Company. The policy insured Theo Lester, husband of plaintiff-appellant. The trial court, sitting without a jury, found in favor of defendant-appellees, and plaintiff appeals.
The issue for our determination, as presented by able counsel for appellant, is the construction to be accorded certain terms of the accident insurance policy which is the subject of this lawsuit.
The facts which gave rise to this litigation are not in dispute, and were stipulated by the parties.
On October 13, 1973, a tractor-trailer truck ran off the paved portion of Alabama Highway 20 and turned on its side. Wreckers dispatched to the scene pulled the unit into an upright position. One wrecker was then hooked onto the front of the tractor and began to pull the unit off, when the tractor and trailer separated. The trailer turned over on the deceased, Theo Lester, and crushed him to death.
The only witness to testify at trial was the District Engineer of the Alabama State Highway Department, who described the layout of Highway 20 at the location of the accident.
Alabama Highway 20 is a public highway in Lauderdale County. The right of way for Highway 20 is 200 feet wide. The paved portion of the highway is a strip 24 feet wide running down the center of the right of way. This center strip is bordered on each side by a 10 foot wide shoulder. At the point where the shoulder terminates, a 10 foot wide strip known as the 'frontslope' angles down into a ditch. The back of the ditch rises up to form a 7 1/2 foot high embankment which is called the 'backslope' of the highway. The right of way itself then extends back for some 50 feet beyond the back slope.
Described more generally, the highway plan consists of a cutout or channel containing the paved portion and running down the center of the right of way.
The witness also testified that the entire right of way is maintained and mowed by the highway department, where physically possible, rather than just the cutout portion.
The exact point where the deceased was killed was also stipulated by the parties. When the trailer turned over on him, the deceased was standing or squatting on the above described embankment or back-slope.
The applicable provisions of the insurance policy upon which this lawsuit is based provide that death benefits shall be payable if the insured dies due to injury accidentally caused in the following manner:
'As a result of a motor-driven vehicle striking the insured while he is standing, walking, or riding a bicycle on a public highway, as defined below except while on the job as a flagman or otherwise directing traffic; . . .
'PUBLIC HIGHWAY DEFINED--Public...
To continue reading
Request your trial