Posey v. Commercial Union Ins. Co., 12911

• Decision Date: 24 May 1976
• Docket Number: No. 12911,12911
• Citation: 332 So.2d 909
• Parties: Clayton W. POSEY, Individually and as Administrator of the Estate of his minor son, Kenneth Posey, Plaintiff-Appellee, v. COMMERCIAL UNION INSURANCE COMPANY, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 909

332 So.2d 909

Clayton W. POSEY, Individually and as Administrator of the Estate of his minor son, Kenneth Posey, Plaintiff-Appellee, v. COMMERCIAL UNION INSURANCE COMPANY, Defendant-Appellant.

No. 12911.

Court of Appeal of Louisiana, Second Circuit.

May 24, 1976.

Cook, Clark, Egan, Yancey & King by Benjamin C. King, Shreveport, for defendant, third-party plaintiff appellant, Commercial Union Ins. Co.

Alex Rubenstein, Shreveport, for defendant, third-party appellant, Ronald Palmer.

Bodenheimer, Jones, Klotz & Simmons by Harry D. Simmons, Shreveport, for plaintiff-appellee.

Before PRICE, HALL and JONES, JJ.

HALL, Judge.

Plaintiff, Clayton W. Posey, individually and as administrator of the estate of his minor son, Kenneth Posey, sued defendant, Commercial Union Insurance Company, Posey's uninsured motorist insurer, for damages arising out of an accident which occurred February 27, 1974, in which Kenneth Posey was injured when struck by a motorcycle driven by Ronald Palmer who was uninsured. Commercial Union filed a third party petition naming Ronald Palmer as third party defendant seeking to recover from Plamer any amounts it might have to pay plaintiff under its uninsured motorist coverage.

After trial, the district court rendered judgment in plaintiff's favor against the insurance company in the total amount of $15,264.90, being $2,764.90 for medical expenses incurred and $12,500 for Kenneth's pain and suffering arising out of the personal injuries suffered in the accident. Judgment was further rendered in favor of the insurance company over and against third party defendant Ronald Palmer in the same amount. Both Commercial Union and Ronald Palmer appealed.

The issues presented on appeal are as follows:

(1) The negligence of Ronald Palmer;

(2) The contributory negligence of Kenneth Posey (3) Whether the uninsured motorist coverage extended to the vehicle operated by Palmer, the argument of no coverage being based upon a claim that the vehicle was not a highway vehicle as defined by the policy;

(4) Whether there should be a stacking of three uninsured motorist coverages under Posey's policy in light of the fact that he only owned two motor vehicles at the time of the accident; and

(5) Whether the damages awarded are excessive taking into consideration the injuries sustained, the policy limits involved, and the financial condition of the third party defendant.

Negligence of Ronald Palmer and Contributory Negligence of Kenneth Posey.

Kenneth Posey, who was 15 years of age, and Ronald Palmer, who was 20 years of age, and several other youths were playing in an open field known as the tank farm, which had recently been graded. Their activities included the operation of the Palmer motorcycle in the field. Young Posey decided to go home and began walking across the field away from the point where Palmer and his motorcycle were located. After Posey had walked some distance away, Palmer decided to give Posey a ride home or at least to the edge of the field. Palmer cranked up the motorcycle and proceeded toward Posey at a speed of approximately 25 miles per hour, having shifted into third gear. His intention was to pass by Posey, stop, and offer Posey a ride to the edge of the field. Palmer began to slow down when he got to within about 25 feet of Posey and had slowed to approximately 15 miles per hour when Posey turned around and faced the approaching Palmer, the motorcycle being about 10 to 15 feet away from Posey at that time. Posey then jumped from side to side several times. The motorcycle, sliding in the loose dirt, collided with Posey, resulting in Posey sustaining a broken arm and leg.

The insurance company and Palmer take the position that Palmer could have successfully passed by Posey and stopped except for the fact that Posey playfully jumped directly into his path of travel. Plaintiff takes the position that Posey engaged in the jumping maneuvers when he became afraid or panicked after observing the motorcycle approaching him at a rapid rate of speed causing him to believe he was going to be struck by it if he did not move one way or the other and that he made an error in judgment in jumping into the path of the vehicle.

The insurance company and Palmer argue the cause of the accident was the negligence of Posey in jumping in front of the motorcycle, creating a sudden emergency, and that Palmer was free of negligence and under the sudden emergency doctrine cannot be held to the exercise of his best judgment in trying to avoid the accident. Plaintiff argues the cause of the accident was the negligence of Palmer and also relies on the sudden emergency doctrine, contending that the sudden emergency was created by Palmer's actions in driving toward Posey at a high rate of speed, excusing Posey's action in jumping in front of the motorcycle in an effort to avoid being struck.

Our conclusion, in accord with the trial judge, is that Ronald Palmer was negligent in driving his motorcycle to within 25 feet of Posey at a speed of 25 miles per hour with the motorcycle being steered by Palmer directly at Posey or at least so close to Posey that he became concerned that he was going to be struck by the vehicle. Palmer did not have the motorcycle under proper control as he could not and did not stop it before colliding with Posey while in a slide on the loose dirt.

Palmer is not entitled to the protection of the sudden emergency doctrine because the emergency was created by his own negligent conduct in operating the motorcycle at an excessive rate of speed in the immediate proximity of young Posey. See Dane v. Canal Insurance Company, 240 La. 1038, 126 So.2d 355 (1960) and Fulmer v. United States Fidelity & Guaranty Co., 5 So.2d 923 (La.App.2d Cir. 1941).

On the other hand, the sudden emergency doctrine is applicable to the actions of Posey because he did not contribute to the creation of the emergency. Posey did not know of Palmer's intent to stop and give him a ride to the edge of the field. When he turned around he saw the motorcycle approaching in close proximity at a rapid rate of speed. His becoming afraid and taking evasive action was a reasonable reaction to the emergency with which he was confronted. The fact that he made an incorrect decision or erroneous judgment as to which way to jump cannot be considered negligence on his part so as to bar his right to recover. Fulmer v. United States Fidelity & Guaranty Co., supra.

Coverage Under the Uninsured

Motorist Insurance

The defendant insurance company, joined by the third party defendant, contend that the uninsured motorist provisions of the insurance contract between Posey and Commercial Union did not extend coverage to an accident arising out of the operation of the type of vehicle involved in this accident. They contend that the motorcycle was a trail bike not suitable for use on the highways and that the policy provides coverage only for accidents arising out of the operation of a 'highway vehicle' and excludes vehicles used principally off of public roads.

The uninsured motorist endorsement to the insurance policy provides that:

'The company will pay all sums which the Insured or his legal representative shall be legally entitled to recover as Damages from the owner or operator of an Uninsured highway vehicle because of Bodily injury sustained by the Insured, caused by accident and arising out of the ownership, maintenance or use of such Uninsured highway vehicle; . . .'

The policy defines 'highway vehicle' as meaning:

'. . . a land motor vehicle or trailer other than

(a) a farm type tractor or other equipment designed for use principally off public roads, while not upon public roads, . . .'

The vehicle involved in the accident was a 1971 Yamaha 175 Moto-Cross motorcycle. At the time Palmer bought it a month or so prior to the accident, it had a 1972 license plate and a title. At the time of the accident it did not have a speedometer but had a tachometer. It had no brake light, taillight or turn singles. It did not have a current state inspection sticker. The policeman who investigated the accident described it as a 'trail bike'. Palmer testified he had driven it on the highway only once and pushed it from his home to the open field where the accident happened.

The policy defines highway vehicle as any land motor vehicle other than certain excluded types of equipment or vehicles. A motorcycle is clearly a land motor vehicle and unless this particular motorcycle comes within the specific exclusion of 'other equipment designed for use principally off public, roads, while not upon public roads', the accident caused by its use is covered by the policy.

The motorcycle involved in this accident was not 'designed' for use principally off public roads. It originally had been licensed and titled and contained usual road equipment. Its current condition of not being legally usable on the public roads was not because of design or modification of design but was because of deterioration and lack of maintenance of its on-the-road features. Also, a motorcycle cannot be regarded as 'other equipment' such as a farm type tractor specifically excluded in the same exclusionary paragraph. We conclude, therefore, that the motorcycle involved in this accident is included within the express definition of uninsured highway vehicle contained in the policy provisions and that the policy extends coverage to the accident out of which plaintiff's damages arose in this case.

Although not necessary to a decision of the coverage issue in this case, it should be noted that LSA-R.S. 22:1406D(1)(a) requires automobile liability insurance policies to provide coverage for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured 'motor vehicles' because of bodily injury. Any definition or provision in...