Romero v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 19 June 1972
• Docket Number: No. 3853,3853
• Citation: 264 So.2d 258
• Parties: Birdie ROMERO, Plaintiff and Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant and Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 258

264 So.2d 258

Birdie ROMERO, Plaintiff and Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant

and Appellant.

No. 3853.

Court of Appeal of Louisiana, Third Circuit.

June 19, 1972.

Reheraing Denied July 12, 1972.

Writ Granted Sept. 27, 1972.

McBride & Brewster, by Norman P. Foret, Lafayette, for defendant-appellant.

Domengeaux & Wright, by Jack C. Fruge , Lafayette, for plaintiff-appellee.

Before HOOD, CULPEPPER and MILLER, JJ.

CULPEPPER, Judge.

Mrs. Birdie Romero seeks damages for personal injuries sustained in an automobile accident which occurred in the State of Texas. She was a guest passenger in an automobile being driven by her husband, Gilbert Romero, whose gross negligence is alleged to have been the cause of the accident. Their legal domicile is in the State of Louisiana, where the present suit was instituted against the husband's liability insurer under our direct action statute. After defendant's exceptions of no right and no cause of action were overruled, the case was tried on its merits and judgment rendered for the plaintiff. Defendant appealed.

We find the decisive issue is what state law applies, Texas or Louisiana. Under Texas law, a wife does not have a cause of action in tort against her husband, Crawford v. De Long, 324 S.W.2d 25 (Tex .Civ.App.1959), and no direct action statute allows her to sue her husband's automobile liability insurer. Under Louisiana law, a wife can being a direct action against her husband's insurer under LSA-R.S. 22:655.

The conflict of laws issue presented here is controlled by the recent case of Johnson v. St. Paul Mercury Insurance Company, 256 La . 289, 236 So.2d 216 (1970). In that case the plaintiff guest passenger and her host driver were both domiciled in Louisiana. The accident occurred in Arkansas, where a guest statute requires willful and wanton negligence on the part of the host. Plaintiff's petition alleged only ordinary negligence. Under the Lex loci delicti doctrine, the trial court applied the guest statute of Arkansas and denied recovery. The Court of Appeal refused to apply the law of the state where the wrong was committed. It applied the law of the forum, under certain conflicts of laws theories such as 'minimum contacts', 'center of gravity' and 'grouping of contacts.' Our Supreme Court, although with two strong dissents, reversed the Court of Appeal and reinstated the trial court judgment.

In Johnson, our Supreme Court followed the prior jurisprudence of this state applying lex loci delicti in tort cases. The majority flatly rejected the arguments that the law of the forum should apply since both the guest and the host driver lived in the forum state.

Among the many cases cited with approval in Johnson is Burke v. Massachusetts Bonding & Insurance Company, 209 La. 495, 24 So.2d 875 (1946), which, as the present case, involved a wife suing her husband's insurer in Louisiana for a tort committed in another state (Mississippi). The court held:

'Where the action is brought in one jurisdiction for a tort committed in another the rights and liabilities of the parties are determined by the laws of the place where the wrong is committed and not by the laws of the place where the right of action is asserted. 11 Amer.Juc., sec. 490, p. 182; American Law Institute, Conflict of Laws, sec. 384, p. 470. In the latter comprehensive work the rule is concisely stated as follows: 'If no cause of action is created at the place of wrong, no recovery in tort can be had in any other state.' We must therefore look to the laws of Mississippi where plaintiff's injury occurred and not to the laws of Louisiana where the plaintiff's suit was brought in order to determine plaintiff's rights.'

In Johnson, our Supreme Court also cited with approval the case of Nicholson v. Atlas Assurance Corp., La.App., 156 So.2d 245 (4th Cir. 1963), writ denied 245 La. 461, 158 So.2d 612 for the reason, 'We find no error of law in the judgment of the Court of Appeal.' The Nicholson case also involved the identical issue presented here, i.e ., a wife suing her husband's insurer in Louisiana for a tort committed in Mississippi. Following Burke, the court held she had no cause of action in Mississippi, and hence could have none in Louisiana.

In the Johnson case, supra, our Supreme Court again expressly holds that our direct action statute cannot create a cause of action in the forum state where none exists in the state where the wrong was committed. The court said:

'Existence of liability insurance ought not to create a cause of action where none exists otherwise. A policy of insurance protects...