Wimberly v. Mccoy Tree Surgery Co.

• Decision Date: 25 August 2000
• Docket Number: No. 33,761-CA.,33,761-CA.
• Citation: 766 So.2d 729
• Parties: Margie K. WIMBERLY, Plaintiff-Appellant, v. McCOY TREE SURGERY CO., et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

766 So.2d 729

Margie K. WIMBERLY, Plaintiff-Appellant, v. McCOY TREE SURGERY CO., et al., Defendants-Appellees.

No. 33,761-CA.

Court of Appeal of Louisiana, Second Circuit.

August 25, 2000.

COPYRIGHT MATERIAL OMITTED

James E. Franklin, Jr., Shreveport, Counsel for Appellant.

Mayer, Smith & Roberts, L.L.P. by Ben Marshall, Jr., Shreveport, Counsel for Appellees.

Ungarino & Eckert, L.L.0 ., Metairie, Counsel for Defendants/Appellees, American Deposit Insurance Company and Rebecca Shepard.

Before GASKINS, PEATROSS and KOSTELKA, JJ.

PEATROSS, J.

In this tort suit, Plaintiff, Margie K. Wimberly, appeals the amount of damages awarded to her, the assessment of liability among the Defendants and the denial of underinsured motorist ("UM") coverage. For the reasons stated herein, we affirm.

FACTS AND PROCEDURAL HISTORY

On November 12, 1997, at approximately 10:30 a.m., Ms. Wimberly was riding as a passenger in a vehicle owned and operated by her daughter, Defendant Rebecca Shepherd. It had been raining heavily earlier in the morning, but there was only a light mist falling as Ms. Shepherd was driving in the westbound lane of Sligo Road. Sligo Road has a posted speed limit of 55 miles per hour.

At that time, a truck and chipper (herein collectively referred to as "the McCoy vehicle") owned by McCoy Tree Surgery Company ("McCoy") were parked partially in the westbound lane and partially on the adjoining shoulder of Sligo Road. Sligo Road is straight for at least 200 feet east of where the McCoy vehicle was parked. The truck was equipped with a lift bucket to allow for the cutting of higher branches. It was necessary for the McCoy employees to park the McCoy vehicle partially in the travel portion of the westbound lane for stability. The shoulder sloped into a ditch and the ground was soft from the recent rain, all of which would have caused the McCoy vehicle to lean, making the use of the lift bucket dangerous. There were safety cones and "Men Working" signs present, but the number of cones, their distance from the McCoy vehicle and the distance of the signs from the McCoy vehicle are in dispute.

Ms. Shepherd's vehicle collided with the left rear corner of the chipper. Ms. Shepherd testified that she was only 20 to 30 feet from the McCoy vehicle when she noticed it. She attempted to move into the eastbound lane, but was met by an oncoming vehicle which was either stopped or moving slowly in the eastbound lane. On seeing the oncoming vehicle, Ms. Shepherd testified that she "panicked," slammed on her brakes, veered back into the westbound lane and struck the left rear corner of the chipper. Ms. Wimberly sustained a broken wrist and contusions and lacerations to her forehead as a result of the collision.

On February 20, 1998, Ms. Wimberly filed suit against McCoy; its insurer, Reliance National Indemnity Company ("Reliance"); Ms. Shepherd; and American Deposit Insurance Company ("American"), in its capacity as Ms. Shepherd's insurer and in its capacity as her insurer for the purpose of UM coverage. The matter was submitted on depositions with argument to be held at a later date. The trial court, however, rendered a written opinion on June 22, 1999, without oral argument. In its reasons for judgment, the trial court found that the accident was caused solely by the negligence of Ms. Shepherd in driving her vehicle at an excessive speed and awarded Ms. Wimberly the following damages:

                  1)    Medical Specials    $10,528.28
                  2)    Lost Wages            5,761.53
                  3)    General Damages      11,000.00
                                           ____________
                             Total         $27, 289.81
                

Costs were initially assessed against Ms. Shepherd and American. At a later hearing on Ms. Wimberly's motion to tax costs, those costs which she requested were allowed, but the proportion of costs to be paid by each party was changed to 75 percent to Ms. Shepherd and American and 25 percent to Ms. Wimberly.

The June 22, 1999 opinion did not address the issue of Ms. Wimberly's UM claim and penalties and attorney fees so the trial court requested supplemental briefs. The trial court rendered a supplemental opinion on August 29, 1999, rejecting Ms. Wimberly's aforementioned claims. Ms. Wimberly appeals the allocation of fault, quantum, the rejection of her UM claim and associated penalties and attorney fees and the allocation of costs.

DISCUSSION

Liability

Ms. Wimberly asserts as her first assignment of error that the trial court erred in finding that the accident was proximately caused by Ms. Shepherd and failing to find that McCoy was negligent. Specifically, Ms. Wimberly asserts that McCoy violated La. R.S. 32:141 and 32:296. We find no merit to this argument.

La. R.S. 32:296 provides, in pertinent part,:

A. No person shall stop, park, or leave standing any unattended vehicle on any state highway shoulder when such stopping or parking on the highway shoulder shall obstruct the flow of traffic or is a hazard to public safety, unless such stopping, parking, or standing is made necessary by an emergency, except:

* * *

(2) By any public utility personnel or public utility equipment engaged in the operation of the utility business, public vehicles owned by public bodies which are engaged in the conduct of official business, or privately-owned vehicles which are engaged in services authorized by the local governing authority. (Emphasis ours.)

This statute is inapplicable to the facts of the case sub judice because the McCoy vehicle was never left unattended prior to the accident. See Sumner v. Sumner, 95-677 (La.App. 3d Cir.11/8/95), 664 So.2d 718, writ denied, 95-2919 (La.2/9/96), 667 So.2d 531.

Joe Deleon, a foreman, and Xavier Edwards, a trimmer, comprised the tree cutting crew at the site on Sligo Road. Both McCoy employees were near the McCoy vehicle at the time of the accident. Mr. Deleon testified that he was standing to the rear of the chipper with his back to the road immediately before the impact of Ms. Shepherd's truck. In fact, he stated that he heard the sound of Ms. Shepherd's tires "squalling" followed by a "thump," which he presumed was Ms. Shepherd's truck hitting the safety cones. It was at this point that Mr. Delemairan away from the chipper toward the ditch. Mr. Edwards was standing just to the north of the truck picking up trimmed branches when the impact occurred.

In addition, pursuant to La. R.S. 32:296 A(2), McCoy was working under contract with Southwestern Electric and Power Company ("SWEPCO") clearing power lines at the time of the accident. As the agent of a public utility, McCoy was not in violation of La. R.S. 32:296.

La. R.S. 32:141 states, in pertinent part, as follows:

Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway.

A motorist may generally assume that the road is safe for travel and he/she is not required to anticipate unexpected obstructions in his/her lane of traffic which are, under the circumstances, difficult to discover. U.S. F. & G. Co. v. State, Through the Department of Highways, 339 So.2d 780 (La.1976); Parker v. Continental Insurance Co., 341 So.2d 593 (La.App. 2d Cir.1977). A motorist on a public highway has a duty, however, to maintain a careful lookout. Chaisson v. J. Ray McDermott & Co., 324 So.2d 844 (La.App. 1st Cir.1975), writ denied, 328 So.2d 86 (La.1976).

In deciding whether a motorist who strikes a stationary vehicle obstructing his/ her lane should have observed the vehicle in time to avoid a collision, there are no hard and fast rules. In making this determination, all of the facts and circumstances surrounding a particular case must be considered, including the locality of the accident, the lighting conditions, the respective positions of the vehicles, visibility and the presence and operation of lighting or warning equipment. Ramsey v. Langston, 140 So.2d 775 (La.App. 2d Cir.1962). The listandard to be applied is one of reasonableness. Lynch v. Fisher, 41 So.2d 692 (La.App. 2d Cir.1949); Ramsey, supra; McIntyre v. Saunders, 554 So.2d 1371 (La. App. 1st Cir.1989), writ denied, 558 So.2d 583 (La.1990); Chaisson, supra.

As stated previously, in the case sub judice it was not practical for the McCoy employees to park the McCoy vehicle completely off of the travel portion of Sligo Road. The trial court found, and we agree, that the McCoy vehicle extended only two feet onto the travel portion of Sligo Road, leaving an unobstructed passage for other vehicles to get around it. Further evidence indicates that there was a clear view of the McCoy vehicle for at least 200 feet, in accordance with La. R.S. 32:141. By implication of the ruling, the trial court found that McCoy had acted reasonably under the circumstances.

Ms. Wimberly testified in her deposition that she did not recall seeing a bright orange "Men Working" sign on the north side of the westbound lane, some distance before they reached the McCoy vehicle. Ms. Shepherd testified that she did not see such a sign and, had there been one, she would have seen it. Officer Pete Smith of the Bossier Parish Police Department, who investigated the accident, testified, however, that there was definitely a "Men Working" sign on the shoulder of the westbound lane in which Ms. Shepherd was traveling. In his opinion, the sign was about 100 feet east of the McCoy vehicle, although he did not take any measurements. Mr. Stanley Hummer, an independent bystander who was observing the McCoy employees from the field to the...