Pierrotti v. Associated Indem. Corp.

• Decision Date: 26 May 1981
• Docket Number: Nos. 14150,14151,s. 14150
• Citation: 399 So.2d 679
• Parties: James Donald PIERROTTI and Vickie Rulf Pierrotti v. ASSOCIATED INDEMNITY CORP., Mrs. Manuella N. Torres and Allstate InsuranceCompany, Louisiana Department of Transportation and Development. Jose FUENTES, Jr. and Ophelia Fuentes v. James Donald PIERROTTI et al.
• Court: Court of Appeal of Louisiana — District of US

Page 679

399 So.2d 679

James Donald PIERROTTI and Vickie Rulf Pierrotti v. ASSOCIATED INDEMNITY CORP., Mrs. Manuella N. Torres and Allstate InsuranceCompany, Louisiana Department of

Transportation and Development.

Jose FUENTES, Jr. and Ophelia Fuentes v. James Donald PIERROTTI et al.

Nos. 14150, 14151.

Court of Appeal of Louisiana, First Circuit.

May 26, 1981.

Paul C. Tate, Tate, Tate & Tate, Mamou, Thomas L. Mahfouz, Lippman, Mahfouz & Martin, Morgan City, for plaintiffs.

Charles C. Culotta, Jr., Patterson, for Manuela N. Torres.

Robert M. Mahony, Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abel, Lafayette, for third party plaintiffs James D. Pierrotti, Vickie Pierrotti, Haywood Rulf, Associated Indemnity Corp. and original defendants.

Richard D. Chappuis, Jr., Voorhies & Labbe, Lafayette, for third party plaintiff, Associated Indemnity Corp.

L. Lane Roy, Davidson, Meaux, Sonnier & Roy, Lafayette, for third party plaintiff, Allstate Insurance Co.

David K. Balfour, Asst. Gen. Counsel, Baton Rouge, for La. Dept. of Transportation & Development, Office of Hwys.

Before COVINGTON, CHIASSON and LEAR, JJ.

CHIASSON, Judge.

These consolidated suits arise from an intersectional collision between two vehicles in Berwick, Louisiana, where an off ramp of U.S. Highway 90 East intersects Louisiana Highway 182.

On the afternoon of May 19, 1977, Vickie Rulf Pierrotti (Vickie), was driving her father's (Heywood Rulf) 1968 Chevrolet on Highway 90. She was descending on the off ramp leading into the town of Berwick. No one was in the car with Vickie at the time as she traveled in the right hand lane of the two lane ramp. Associated Indemnity Corporation (Associated) provided both liability and uninsured motorist coverage to the Rulf vehicle. Allstate Insurance Company (Allstate) provided uninsured motorist coverage under a policy issued to Vickie's husband, James Donald Pierrotti.

Manuella N. Torres, driving her 1977 Buick Skylark, had left the town of Berwick proceeding in a westerly direction on Highway 182, a divided four lane highway. She turned left and proceeded in a southerly direction to enter the "on" ramp of Highway 90 going easterly to Morgan City. As she proceeded to cross Highway 90, she was struck on the right rear by the vehicle driven by Vickie. Mrs. Torres had no insurance coverage on her vehicle. Mrs. Ophelia Fuentes and Arthur Dwiggins were guest passengers in the Torres vehicle.

Vickie, Mrs. Fuentes, and Mrs. Torres all claimed to have been injured in the collision and have made their respective demands. The parties and their claims in suit Pb 14,150 are outlined below whereas the parties and their demands in suit # 14,151 are discussed in a separate opinion rendered this day.

Vickie and her husband, plaintiffs in suit # 14,150, seek to recover for the injuries sustained by Vickie in the collision. Named as defendants in their suit are Mrs. Torres, Associated, Allstate, and the State of Louisiana, through the Department of Transportation and Development (Department of Highways). Judgment was rendered against Allstate, but it has paid its portion and was released by the plaintiffs.

Mrs. Torres answered the petition asserting affirmatively that Vickie was contributorily negligent, that she had the last clear chance to avoid the accident, and that Mrs. Torres had preempted the intersection. She filed a reconventional demand against Pierrotti, Rulf, and Associated and she and the defendants in reconvention filed a third party demand against the Department of Highways claiming that the design, construction, and maintenance of the highway at this intersection caused or contributed to the accident.

The intersection in question had only been open for about a month's time. This was the first time Mrs. Torres traveled the road and she was somewhat confused as to which approach to take. There were no directional or regulatory (stop or yield) signs at the intersection when the collision occurred.

Mrs. Torres slowed and stopped at the intersection, she looked both ways but did not see Vickie on the off ramp and proceeded to cross the intersection. She knew that at uncontrolled intersections vehicles approaching from the right have the right of way.

Vickie saw the Torres vehicle coming to a stop. She then looked to her right at a vehicle stopping at the other corner of the intersection. She then saw the Torres vehicle entering the intersection and, although she applied her brakes, she struck the right rear of the Torres vehicle just as it was about to clear the intersection. Vickie testified that she was unable to move to her left to avoid the collision because there was a vehicle in the left lane of travel right behind her.

The trial court found that the accident occurred in the southwest quadrant of the intersection when the right front of the vehicle driven by Vickie struck the right rear side of the Torres vehicle. It also found that both drivers had unobstructed views of each other and that Mrs. Torres did stop and look at the intersection.

The court concluded that the failure of Mrs. Torres to see what she should have seen was negligence and the sole proximate cause of the accident. It also concluded that the State of Louisiana was negligent in failing to put regulatory signs at the intersection and in designing the intersection. Although it was found negligent, the State was absolved from liability because the court concluded that its negligence was not a proximate cause of the accident. No negligence was found on the part of Vickie Pierrotti.

Judgment was rendered on the Pierrottis' main demand against Associated as the uninsured motorist carrier of the Rulf vehicle (up to its policy limits), Mrs. Torres as the tortfeasor, and Allstate, the uninsured motorist carrier of James Pierrotti (up to its policy limits). James Pierrotti, on behalf of the community, was awarded $10,256.36 for special damages while Vickie, individually, was awarded $25,000.00. The third party demands of Associated and Allstate against Mrs. Torres were maintained. The court dismissed the reconventional demand of Mrs. Torres and all third party demands against the Department of Highways.

From this judgment, Associated and the Pierrottis have devolutively appealed. No appeal has been taken by Mrs. Torres, and therefore the judgment is final as to her.

The Pierrottis assign as error the ruling of the trial court that the negligence of the Department of Highways was not a proximate cause of the accident. In addition, they contend the court erred in limiting its award of damages to Vickie to the sum of $25,000.00.

Associated, as the uninsured motorist carrier, also contends that the trial court erred in its ruling that the negligence of the Department of Highways was not a proximate cause of the accident. Associated further contends that the trial court erred in failing to find Vickie Pierrotti negligent and that this negligence was the sole or concurrent proximate cause of the accident.

The appellants' first argument is premised on the fact that the trial court found the Department of Highways negligent and the Department has failed to appeal this finding. They contend that this issue is therefore final. They aver it only needs to be shown, on appeal, that this negligence was the proximate cause of the accident for them to prevail.

This premise is not sound. We recognize the fact that the Department of Highways has failed to appeal or answer the appeal on this particular finding and speculate the reason is that it was a prevailing party at the trial level. A recent decision of the Supreme Court sheds some light on this matter. In Chester G. Bond, et ux. v. Commercial Union Assurance Co., et al., Docket No. 80-C-1965, --- So.2d ---- (April 6, 1981), the Court addressed the problem of a party raising an overruled exception on appeal even though he has neither appealed nor answered the appeal. The Court concluded that:

"... C.C.P. arts. 2082 and 2133 were not designed to require a successful party to insure his judgment below by appealing every adverse ruling on an interlocutory order simply because the appellate court may overturn the trial court's final decision in his favor on the merits." Bond, supra.

The same rationale is applicable here. Since the Department of Highways received a favorable judgment at the trial level, there was no need to appeal a finding of fact and law by the trial court simply because such a finding could be reversed on appeal. We consider the finding of the trial court as to the negligence of the Department of Highways a viable issue presently susceptible to review by this court.

The trial court first found the Department of Highways negligent but then concluded that this negligence was not a proximate cause of the accident. Under the recent decisions of both the Supreme Court and the Courts of Appeal, the courts have used the duty/risk analysis instead of the proximate cause approach to determine the liability of a defendant. Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962); Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (1970); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Laird v. Travelers Insurance Company, 263 La. 199, 267 So.2d 714 (1972); Hebert v. Maryland Cas. Co., 366 So.2d 1044 (La.App. 1st Cir. 1978); Kane v. Braquet, 368 So.2d 1176 (La.App. 3rd Cir. 1979); Becnel v. St. John the Baptist Parish Police Jury, 364 So.2d 1074 (La.App. 4th Cir. 1978); See Malone, Ruminations on Dixie Drive It Yourself v. American Beverage Company, 20 La.L.Rev. 363 (1970); Robertson, Reason v. Rule in Louisiana Tort Law; Dialogues on Hill v. Lundin & Associates, Inc., 34 La.L.Rev. (1973); and Problems in the Application of Duty-Risk Analysis to Jury Trial in Louisiana, 39 La.L.Rev. 1079 (1979). We will refer to this analysis in this matter.

The first step is to determine whether the Department of Highways'...