Palermo v. Allstate Ins. Co.

• Citation: 415 So.2d 437
• Decision Date: 25 May 1982
• Docket Number: No. 14803,14803
• Parties: Sardo PALERMO, et al. v. ALLSTATE INSURANCE COMPANY, et al.
• Court: Court of Appeal of Louisiana (US)

Page 437

415 So.2d 437

Sardo PALERMO, et al. v. ALLSTATE INSURANCE COMPANY, et al.

No. 14803.

Court of Appeal of Louisiana First Circuit.

May 25, 1982.

Victor Marcello, Donald Carmouche, Donaldsonville, for plaintiffs & appellees.

Anthony Clesi, Jr., Baton Rouge, for Allstate Ins. Co. appellee.

J. Arthur Smith, III, Baton Rouge, for Willie Dunn appellee.

David K. Balfour and William J. Doran, Jr., Baton Rouge, for DOTD-State of La. appellant.

Before COVINGTON, COLE and WATKINS, JJ.

COVINGTON, Judge.

The State of Louisiana, Department of Transportation and Development, defendant, appeals the judgment rendered by the trial court against it in favor of plaintiffs, Roy Dimm, Wilson Lewis, Sadie Lewis, Sardo Palermo, Mary Palermo, and Sharon Dimm Rousseau. Sardo and Mary Palermo answered the appeal, questioning the trial court's dismissal of their claim for certain damages.

This is a suit to recover damages for personal injuries and for wrongful death arising out of a collision on September 15 1978, between a 1975 Ford Pinto station wagon driven by Sharon Dimm Rousseau, and a tractor-trailer truck, owned by Matlack, Inc. and driven by Willie Dunn, an employee of Matlack, on Louisiana Highway 1, a two-lane highway, in the Parish of Iberville, near Plaquemine, Louisiana. Passengers in the Pinto automobile included Glinda Palermo Dimm Steib, Roy Dimm, Jr., Randy Dimm and Grover C. Lewis.

Immediately prior to the accident, the Matlack truck was proceeding in a northerly direction on the two-lane highway, and the Rousseau vehicle was going in a southerly direction. The accident allegedly occurred in the northbound lane of traffic when the Rousseau vehicle swerved into the truck's lane of traffic after striking a large, deep hole or rut immediately adjacent to the paved portion of the roadway. The way in which the accident happened is one of the facts in dispute. Only the drivers of the two vehicles, Dunn and Rousseau, survived the collision. All of the passengers in the Pinto were killed. There were no passengers in the truck.

The claimants in the suit are Sardo Palermo and Mary Palermo, the parents of Glinda Steib, ¹ Roy Dimm, the father of Roy, Jr. and Randy Dimm, both minors, Sharon Dimm Rousseau, and Wilson Lewis and Sadie Lewis, the parents of the minor, Grover C. Lewis. ² The suit was instituted against Allstate Insurance Company, insurer of Sharon Rousseau; the Travelers Indemnity Company, insurer of the Lewises; State Farm Mutual Automobile Insurance Company, insurer of Roy Dimm; Willie Dunn, the driver of the Matlack truck; Matlack, Inc., Dunn's employer; and the State of Louisiana through the Department of Transportation and Development, Office of Highways. By supplemental petition, Ford Motor Company was also made a defendant. Travelers, State Farm and Allstate were dismissed on motion by plaintiffs; summary judgments were granted in favor of Ford Motor Company, Matlack, Inc., and Willie Dunn. Thus, the various claims against all defendants, except DOTD, were settled prior to trial.

Plaintiffs asserted at the trial that the collision was caused by a large, deep rut on the southbound shoulder of Highway 1, approximately 6-7 inches in depth, located in the vicinity of the point of impact. DOTD denied that the road condition was substandard and that the road condition caused the accident; and alleged that the accident was caused by the negligence or contributory negligence of Sharon Rousseau.

After trial of this suit, the trial court found liability on the part of the State of Louisiana, Department of Transportation and Development, pursuant to LSA-C.C. art. 2317. The lower court found no negligence on the part of Sharon Rousseau. The court awarded Roy Dimm the sum of $100,000.00 for the wrongful death of his two minor children, Roy Dimm, Jr. and Randy Dimm; and Wilson Lewis and Sadie Lewis, the sum of $50,000.00 each for the death of the minor, Grover C. Lewis. Funeral expenses were also awarded to these plaintiffs.

With regard to the claim of Sardo and Mary Palermo, the trial court found that Glinda Steib, although legally separated from Farrell Steib, was still married to him, so that he was considered a surviving spouse under LSA-C.C. art. 2315; hence, the claim of the Palermos, as surviving parents, for the death of their daughter, Glinda Steib, was dismissed. Concerning the claim of the Palermos as beneficiaries of the Estate of Glinda Steib, the trial court found that Mrs. Steib survived her minor children, so that, as her beneficiaries, her parents were entitled to the sum of $100,000.00, which is the sum the mother (Mrs. Steib) would have been awarded for the deaths of her minor children, Roy, Jr. and Randy Dimm.

The court awarded Sharon Rousseau the sum of $400,000.00 in general damages, $278,956.00 for loss of future earnings, and $3,422.84 for loss of wages. In addition, she was awarded $23,582.24 for medical expenses. The court taxed DOTD for all costs, including cost of depositions used at the trial and cost of expert witness fees.

In reaching its conclusion that DOTD was liable, the trial judge, in his reasons for judgment, made the following factual findings:

"Plaintiffs' theory of the case is that the accident was caused by a large rut on the southbound shoulder approximately six inches in depth located near the point of impact. Mr. Dunn, the driver of the truck, testified that prior to the accident he saw the Pinto vehicle go out of control and slide sideways into his lane of traffic. Due to a serious brain injury suffered in the accident Sharon Rousseau has no memory whatsoever of the events immediately prior to or following the accident. The only other witnesses to testify were Janice and Richard Stone who were traveling immediately ahead of the Pinto at the time of impact. Their testimony was to the effect that after reaching a point parallel to the trailing edge of the tractor-trailer vehicle being driven by Mr. Dunn at a time when they were driving at approximately 45 miles per hour, they heard the impact, looked back, and noted sparks apparently caused by the collision.

"The plaintiffs offered the testimony of Colonel Joseph Andre, an accident reconstruction expert, who based upon this testimony and physical evidence concluded that the rut on the shoulder of the road was the cause in fact of the accident. His opinion was that Sharon Rousseau was trapped in the rut and in an attempt to extricate her vehicle therefrom, she oversteered and went into a broadside skid.

"The defendant offered the testimony of Drs. Ivey and Dart, also accident reconstruction experts, who reached a contrary conclusion. Their opinion was that the Pinto was executing a U-turn at the time of the accident.

"After considering carefully the various theories posed by these respected experts, and after considering the factual evidence and testimony in the record, the court concludes that Colonel Andre's opinion is the most likely and feasible one under all of the evidence. Dr. Ivey, who possessed impressive qualifications, testified that there were only two possible causes in fact of the accident--these being the 'rut' theory and the 'U-turn' theory. He admitted under cross examination that his U-turn theory would have to be disregarded if the testimony of Janice and Richard Stone was accepted as factually correct for the reasons that in order to execute a U-turn the Pinto would have been compelled to slow substantially thus lengthening the distance between it and the Stone vehicle far in excess of that testified to by the Stones. The court was impressed with the testimony of the Stones who were the only two disinterested fact witnesses to testify and the court believes their testimony to be credible and reliable.

"Both Dr. Ivey and Dr. Dart relied heavily on the absence of what were termed 'yaw marks'. However, both Colonel Andre and Dr. Jack Humphries testified that the accident could have been caused by the rut without the appearance of perceptible yaw marks. Dr. Humphries also noted that the right front tire of the Rousseau vehicle exhibited evidence of melting consistent with a broadside skid orientation. He also pointed to marks on the tire which were consistent with an attempt on the part of Rousseau to re-enter the road from the shoulder.

"The testimony of the truck driver to the effect that he saw the Pinto lose control and slide sideways into his vehicle is also consistent with the rut theory. If the vehicle were executing a U-turn it would not have been in a broadside skid. Furthermore, physical facts discovered subsequent to the accident, such as the position of the rut in relation to the point of impact, the depth of the rut and the appearance of the vehicles following the collision as well as the markings on the right front tire of the Rousseau vehicle are all substantiating factors in favor of the rut theory.

"While the issue is not all together free from doubt, the plaintiff who has the burden of proof, must only prove that one set of facts is more likely so than not or more likely so than the opposing set of facts. In this case the court has no difficulty in concluding that the preponderance of the evidence lies in favor of the rut theory as opposed to the U-turn theory. There is nothing whatsoever in the record to indicate any reason for making a U-turn at the particular point in question. There is nothing in the previous history of Sharon Rousseau to indicate any irresponsible conduct particularly in view of the number of people in the vehicle or anything that would indicate that she had any reason whatsoever to attempt to execute a U-turn in the face of an oncoming truck.

"The court particularly places a great weight upon the testimony of the Stones which while not entirely conclusive certainly lends strong weight to the rut theory as opposed to the U-turn theory."

Primarily, the Department argues that there was no evidence connecting the alleged highway defect to the...