text:
    Robert O. HAWTHORNE, Jr. v. SOUTHEASTERN FIDELITY INSURANCE CO. et al. and State Farm Mutual Automobile Insurance Co.
    No. 7673.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1980.

      Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for defendant-third party plaintiff-appellant.
    McLure & McLure, John G. McLure, Alexandria, for defendant-third party appel-lee.
    Provosty, Sadler & deLaunay, William H. deLaunay, Jr., Alexandria, for third party defendant-appellee.
    Broussard, Bolton & Halcomb, Daniel E. Broussard, Jr., Alexandria, for plaintiff-ap-pellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

This case arises from a two-car collision wherein the automobile driven by plaintiff, Robert 0. Hawthorne, Jr., was rear-ended by a vehicle driven by defendant, Hollis D. Clark, Jr. This appeal is brought by plaintiff’s uninsured/underinsured motorist carrier, State Farm Mutual Automobile Insurance Company (State Farm), who was also made a defendant in plaintiff’s suit for damages. A jury determined State Farm was obligated to pay the UM policy limits to plaintiff for his damages sustained in the accident as well as penalties and attorney’s fees for the arbitrary and capricious refusal by State Farm to timely pay under said policy. We affirm the trial court judgment holding State Farm liable to pay under the UM policy coverage, however, we reverse the award for penalties and attorney’s fees as we find the refusal of State Farm to pay under the UM coverage to have been reasonable and not without probable cause.

The accident occurred on February 9, 1978 as plaintiff was stopped behind traffic in the insidé westbound lane of the four-lane Fulton Street Bridge located in Alexandria, Louisiana. Plaintiff filed suit on February 6, 1979 against Clark, the latter’s insurer, Southeastern Fidelity Insurance Company (Southeastern), and State Farm seeking damages for the injuries and losses allegedly sustained as a result of the accident.

Clark and Southeastern answered with general denials to plaintiff’s allegations. State Farm answered on February 28,1979 denying UM coverage under the policy issued to plaintiff on the ground that the latter had violated the provisions of said policy by failing to timely report the accident so as to prejudice State Farm in the determination of the extent and nature of the loss claimed by plaintiff. Further, State Farm made a third party demand against Clark and Southeastern and also against Wayne Steimal and Alexandria Coca Cola Bottling Company, Ltd. (Coca Cola). Steimal and Coca Cola’s connection with the suit arises from State Farm’s allegations that through negligence a dolly or handtruck had fallen onto the traveled portion of the road in the vicinity of the accident from a Coca Cola truck being driven in the eastbound lane by Steimal and that the fallen dolly had caused traffic to come to an abrupt stop in plaintiff’s lane when a driver of a car, stopped ahead of plaintiff, exited his vehicle to place the dolly on a raised median out of the way of traffic. State Farm contended that the alleged negligent acts of Steimal and Coca Cola were causes in fact of the accident for which Steimal and Coca Cola should be held liable, along with Clark and Southeastern, to indemnify State Farm in the event the latter had to pay under its policy with plaintiff.

On August 17, 1979 plaintiff filed an amended and supplemental petition alleging additional injuries and, further, by alleging the arbitrary and capricious refusal of State Farm to pay the limits of the UM coverage, plaintiff sought penalties and attorney’s fees under the provisions of LSA-R.S. 22:658.

On October 15,1979 Clark and Southeastern filed an exception of no cause of action to State Farm’s third party demand. The stated basis for this exception, as to Southeastern, was that in order for State Farm to be cast in judgment under its UM provisions the policy limits of liability of any policy issued by Southeastern would have to have been exhausted and that there would not be any remaining contractual liability through insurance coverage on the part of Southeastern which could be used as the basis for a judgment in favor of State Farm. As to Clark, the basis of his exception was that the claim of State Farm for reimbursement by way of subrogation was precluded under the provisions of the statutory law pertaining to UM coverage set forth in LSA-R.S. 22:1406(D) as most recently interpreted in the case of Niemann v. Travelers Ins. Co., 368 So.2d 1003 (La. 1979).

Coca Cola filed an exception of no right or cause of action on October 16, 1979. Coca Cola urged as the basis for this objection that State Farm was without subrogation rights and, further, that considering the fact that plaintiff had not sued Coca Cola within a year of the accident, any claim against Coca Cola arising from the accident in question had prescribed. On October 23, 1979 Coca Cola and Steimal filed a joint exception of prescription as to State Farm’s third party demand. All exceptions were referred to the merits.

The matter was tried before a jury starting on October 25,1979 and ending on October 30, 1979. During the trial, on October 26, 1979, a partial judgment dismissing Clark and Southeastern was rendered after a compromise and settlement agreement for Southeastern’s policy limits was entered into with plaintiff, the latter reserving all rights against State Farm. Before giving the case to the jury, upon motion of plaintiff, the trial judge directed a verdict in favor of plaintiff and against State Farm finding Clark’s negligence to be the sole cause of the accident. The trial court further, upon motion of the third party defendants, directed a verdict dismissing State Farm’s third party demand as to all third party defendants. The jury then rendered a verdict by special interrogatories on the remaining issues in favor of plaintiff and against State Farm. State Farm was cast in judgment for the policy limits, $50,-000.00, subject to a credit of $318.09 previously paid to plaintiff by State Farm and $5,000.00 previously paid to plaintiff by Clark and his insurer, Southeastern. State Farm was condemned to pay the statutory penalty of 12% on $44,681.91, the amount due under the policy, and attorney’s fees in the sum of $5,000.00, as well as all costs of the proceedings. From this judgment State Farm appeals. Plaintiff answers the appeal seeking an increase in attorney’s fees and the disallowance of any credit for previous payments made to plaintiff by State Farm, Clark and Southeastern.

Appellant’s specifications of alleged trial court errors fall within the following broad issue areas:

1. Whether the trial judge manifestly erred in his rulings concerning admissibility of evidence and his statements before the jury in connection therewith.

2. Whether the trial judge manifestly erred in directing verdicts in favor of third party defendants, Coca Cola, and Wayne Steimal and plaintiff, Robert O. Hawthorne, Jr.

3. Whether the trial judge erred in giving instructions to the jury.

4. Whether the award in favor of the plaintiff is grossly excessive.

5. Whether the trial court erred in awarding penalties and attorney’s fees.

I.

State Farm contends that the trial judge manifestly erred in his rulings and statements before the jury concerning the admissibility of evidence. Appellant specifies five instances, two of which we will address as the other three are clearly without merit.

Plaintiff’s petition listed as an element of damage loss of income, past and future. At trial plaintiff introduced his time and leave records for the years 1977, 1978 and 1979. Said records allegedly reflected the number of days of sick leave and annual leave in lieu of sick leave taken by plaintiff which were attributable to the injuries sustained by plaintiff in the accident. On cross-examining plaintiff as to this element of damage, counsel for State Farm attempted to elicit testimony concerning the actual amount received by plaintiff in annual leave and sick leave benefits in addition to plaintiff’s annual salary. Counsel for plaintiff timely objected on the grounds that any such benefits came within the collateral source rule. The trial court sustained plaintiff’s objection ruling that the collateral source rule is an exclusionary rule of evidence and as such the question or mention of any benefits derived from annual or sick leave or any other source must not be permitted to reach the ears of the jury. Appellant argues that the existence of these employment benefits is admissible evidence which should have been made known to the jury, after which the trial judge in his charge to the jury could have instructed the latter as to the collateral source rule so that they could properly fulfill their function as the judge of the facts as well as the law.

While certainly the jury is required to have all admissible evidence before them and be instructed as to the applicable law involved in order to fairly adjudicate the rights, liabilities, and obligations of the parties in the suit, the determination of the admissibility of evidence is a function solely within the province of the trial court judge. The specific issue on review is whether the trial judge erred in finding the evidence as to the existence of annual and sick leave employment benefits to be inadmissible.

In Hall v. State Department of Highways, 213 So.2d 169, 175 (La.App. 3rd Cir. 1968) we noted the applicability of the collateral source rule as follows:

“While a tortfeasor is entitled to credit for payments made through insurance procured by the tortfeasor himself, Gunter v. Lord, 242 La. 943, 140 So.2d 11 (1962), the plaintiff’s tort recovery is not diminished because of payments made through insurance of (sic) other collateral sources independent of the wrongdoer’s procuration or contribution, Gunter v. Lord at 140 So.2d 16; American Indemnity Co. v. New York Fire & Marine Underwriters, Inc., 196 So.2d 592 (La.App. 1 Cir. 1967); Roux v. Brickett, 149 So.2d 456 (La.App. 3d Cir. 1963).”

See also Wallace v. Pan American Fire & Cas. Co., 352 So.2d 1048 (La.App. 3rd Cir. 1977), writ denied, 354 So.2d 209 (La.1978).

Appellant is not the tortfeasor in the instant suit. Therefore, the question arises as to whether the collateral source rule has any applicability as to a UM carrier. A review of the statutory provisions relating to UM coverage prompts us to conclude that it does. According to LSA-R.S. 22:1406(D)(l)(a) UM policy coverage is “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, sickness, or disease, including death, resulting therefrom . . . ”. It is clearly evident from the above statutory language that if the UM policy insured is “legally entitled to recover damages” under circumstances where the collateral source rule applies to preclude the tortfeasor a reduction of damages because of payments through insurance or employee benefits from other sources independent of the tort-feasor’s procuration or contribution, then it is only logical that the UM carrier should likewise be prohibited from seeking a reduction of the tortfeasor’s liability for damages because of payments from collateral sources when the insurer is litigating its UM exposure under a policy. The immediate issue at trial was the amount of time lost from work due to the injuries sustained in the accident which translates into damages plaintiff is legally entitled to recover from Clark. Plaintiff is clearly entitled to recover the loss of wages attributable to such lost time even though plaintiff has been compensated by employment benefits. The rationale is that plaintiff’s forced use of these leave benefits precludes its future use and prejudices whatever credits might have inured to plaintiff’s benefit upon retirement because of its accumulation. See Teal v. Allstate, 348 So.2d 83 (La.App. 4th Cir. 1977), writ denied, 351 So.2d 164; and Dunlap v. Armendariz, 265 So.2d 353, 354 (La.App. 4th Cir. 1972).

The collateral source rule, while not technically an exclusionary rule of evidence, made the existence of sick leave and annual leave benefits irrelevant in the determination of the amount of time lost from work for which plaintiff is legally entitled to recover damages from Clark. We conclude that since the existence of leave benefits is irrelevant in fixing the liability of the unde-rinsured motorist, such evidence is likewise irrelevant when sought to be introduced by the UM carrier. The trial court did not err in excluding said evidence.

Appellant further contends the trial court erred in refusing to permit it to present to the jury the net amount of pay, after taxes, received by plaintiff from his employment. The trial court ruled that loss of income is measured by gross income as opposed to net income and that evidence as to the latter would not be admitted. Although appellant refers us to the Fourth Circuit decision of Teal v. Allstate, supra, wherein net income was used to calculate loss of wages, the rule in this circuit is to use gross salary, wages, or earnings in these calculations. See Duplechin v. Pittsburgh Plate Glass Company, 265 So.2d 787 (La.App. 3rd Cir. 1972) and Menard v. Travelers Insurance Company, 240 So.2d 390 (La.App. 3rd Cir. 1970). In this regard the trial court made no error.

II.

Appellant next contends the trial court erred in directing verdicts in favor of the third party defendants, Steimal and Coca Cola. Further, appellant asserts error in the trial court directing a verdict in favor of plaintiff and in instructing the jury that the sole cause of the accident was the negligence of Clark. The trial judge passed over the exceptions filed by Coca Cola and Steimal and granted a directed verdict in favor of Coca Cola and Steimal on the basis that the evidence overwhelmingly exculpated Steimal from fault and that his acts, or those of Coca Cola, were in no way a contributing factor to the accident. The trial court then directed a verdict in favor of plaintiff holding that, on the basis of the evidence, the sole cause of the accident was the negligence of Clark.

The gravamen of appellant’s argument is that, because reasonable men in evaluating the evidence adduced at trial could arrive at a contrary verdict, the issue of the liability of Coca Cola and Steimal should have been submitted to the jury for their determination:

We need not answer appellant’s contention as we conclude that the trial court should have sustained Coca Cola’s exception of no cause of action and dismissed the third party demand against it. Likewise, the third party demand against Steimal should have been dismissed for no cause of action on the trial court’s own motion for the following reasons:

The right to reimbursement of a UM carrier is the subject of LSA-R.S. 22:1406(D)(4), which provides as follows:

“In the event of payment to any person under the coverage required by this Section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer.”

In Niemann v. Travelers Ins. Co., supra, our Supreme Court interpreted the above cited provisions as follows:

“On the basis alone of statutory interpretation, we find that the UM insurer has no right under R.S. 22:1406D(4) other than the right to reimbursement from such proceeds, if any, that the insured in fact recovers from the underinsured tort-feasor.
* * * * * *
If the UM carrier is to be afforded a right to subrogation or any other right more meaningful than that granted by R.S. 22:1406D(4), the statute will have to be amended by the Legislature.”

In Bond v. Commercial Union Assurance Companies 387 So.2d 617 (La.App. 3rd Cir. 1980), we discussed LSA-R.S. 22:1406(D)(4) in light of the Niemann decision:

“Although the court in Niemann was concerned with protecting an insured’s right to settle with the tort-feasor and the tort-feasor’s liability insured (sic) without interference from the uninsured motorist insurer, the language used by the court forecloses a more liberal interpretation of the statute which might allow the uninsured motorist insurer subrogation rights against the tort-feasor. The Supreme Court pointedly and emphatically pronounced that 22:1406D(4) imparts to the uninsured motorist insurer no subrogation rights. The only rights which the uninsured motorist insurer does have is the right to reimbursement from the insured and not from the tort-feasor. Although we recognize (and the Supreme Court probably recognized also) that such a restrictive interpretation of 1406D(4) may often inure to the benefit of the tort-feasor, a result arguably unintended by the Legislature, we feel compelled to follow the Supreme Court decision.”

In light of the aforestated principles we sustain the exception of no cause of action filed by Coca Cola, and as to Steimal, who did not except on the basis of no cause of action, we hold on our own motion, by authority of LSA-C.C.P. Article 927, that State Farm does not have a cause of action to pursue a third party claim against said alleged tortfeasor or his insurer.

The appellant’s objection to the trial judge directing a verdict in favor of plaintiff and instructing the jury as to Clark’s negligence and that he was the sole cause of the accident is without merit.

At the outset we observe that able counsel for appellant did not object at the trial level to the procedural propriety of the trial court’s action in directing a “partial” directed verdict, i. e., on the issue of liability only, nor does he make this an issue on appeal. For this reason we express no opinion concerning whether the rendition of a “partial” directed verdict is allowed under the provisions of LSA-C.C.P. Article 1810.

As aforestated appellant asserts that the trial court erred in directing a verdict on the issue of liability on the sole ground that reasonable men, in evaluating the evidence adduced, could arrive at a conclusion different from that reached by the trial judge. Our careful examination of the record reflects no error in the trial court’s conclusion that Clark’s negligence was the sole cause of the accident. Additionally, State Farm did not deny that Clark was at fault or his negligence the cause of the accident. The trial court did not err or prejudice appellant’s rights in this appeal.

III.

State Farm further contends that the trial judge erred in giving instructions to the jury as to the applicable law of the case. The trial judge gave the jury a lengthy charge and, on balance, we feel that the instructions generally encompass the applicable law to all of the issues including notice, insurer prejudice, and policy coverage. Despite the general adequacy of the charge of the jury, we note that the trial court failed to instruct the jury as requested by appellant that a policy of insurance is a contract between the insured and the insurer, and as such has the effect of law on the parties. The effect of this omission is compounded by the trial judge’s erroneous charge that the law recognizes “the fact that the average citizen who purchases a public liability policy seldom, if ever, becomes familiar with its detailed provisions but simply puts it away until the day a claim arises” and by a subsequent unrequested charge concerning the law regarding ambiguous provisions in insurance contracts. Although no party raised the issue, the trial judge felt that that part of the insurance contract concerning notice requirements, particularly the phrase “as soon as practicable”, was ambiguous and that therefore instructions to the jury regarding the effect of ambiguous provisions were warranted. The trial court’s latter conclusion as to ambiguity of the notice provisions of the policy is contrary to the holding of our Supreme Court in LeBlanc v. Davis, 223 So.2d 862 (La.1969) wherein identical notice provisions were held to be reasonable and to be given effect. We feel that the erroneous instructions by the trial judge, although harmless as concerns the issue of quantum, may have had a detrimental and prejudicial impact on the jurors in their determination of the issue as to the reasonableness of State Farm’s refusal to pay under the UM coverage of the policy.

The record shows that the first written notice of the accident or notice that any claim would be made under the policy was not given to State Farm until January 31,1979, almost one year following the date of the accident and approximately a week before the suit was filed. On the basis of late notice State Farm asserted that there was no coverage under the policy. Not only was the issue of lack of coverage under the policy due to late notice seriously litigated by State Farm, which if proven would have been a valid defense to plaintiff’s claim, but there were also the issues of Clark’s unde-rinsured status and the quantum of damages to be decided. With regard to the latter issue, plaintiff had a long history of back-related accidents and injuries which State Farm reasonably could argue were the basis of plaintiff’s problems and that any conditions or illnesses suffered by plaintiff were pre-existing and not caused or aggravated by the accident which occurred February 9, 1978. Additionally, when presented with medical claims arising from the accident in the amount of $318.09 by plaintiff, State Farm timely paid these bills under the medical provisions of the policy. From the totality of the factual circumstances as set forth in the record and in light of the trial judge’s errors in the jury instructions, we find that the determination that State Farm was arbitrary and capricious in refusing to pay the UM coverage policy limits is manifestly erroneous. We conclude that State Farm acted reasonably in contesting its liability under the policy for the reasons state above. We therefore reverse the trial court’s award of penalties and attorney’s fees under LSA-R.S. 22:658.

IV.

State Farm’s final contention of trial court error is that the award of damages to plaintiff for his injuries and losses were excessive. In this regard appellant argues the special interrogatories submitted to the jury were prejudicial and duplicative in the manner in which the elements of general damage were itemized. That portion of the special interrogatories to which appellant objects and the amounts awarded by the jury are as follows:

3. We the jury find that damages sustained by plaintiff as a result of the accident of February 9, 1978 are as follows:
A. Medical expenses:
(1) Past $2500.00
(2) Future $7500.00
B. Loss of income:
(1) Past $5500.00
(2) Future $8000.00
C. Pain and suffering:
(1) Past $5,000.00
(2) Future $5,000.00
D. Mental anguish, anxiety, humiliation and embarrassment:
(1) Past $3000.00
(2) Future $3500.00
E. Physical Disability:
(1) Past $5,000.00
(2) Future $5,000.00
TOTAL $50,000.00"

Appellant’s argument that the itemized elements of general damage, listed above in parts C, D, and E, overlap and are duplicative to a degree has some merit. However, when viewed totally, i. e., that the award for general damages totals $26,-500.00, we conclude that no prejudice or error was made in fixing the quantum of damages. The record shows that as a result of the accident plaintiff sustained an injury which aggravated a pre-existing condition of cervical spondylosis for which plaintiff has experienced, and will continue to experience much pain, disability and medical and hospital expenses. Our review of the award for general damages in light of the facts set forth in the record concerning the extent of plaintiff’s injuries and the principles and methodology governing appellate review of quantum awards as set forth in LSA-C.C. Article 1934(3); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977); and, the recent decision of Reck v. Stevens, 373 So.2d 498 (La.1979); convince us that the award is clearly not excessive.

V.

In light of our determination that attorney’s fees are not awardable under LSA-R.S. 22:658 we need not consider plaintiff’s answer seeking an increase in attorney’s fees. Plaintiff’s contention that State Farm should not be allowed a credit for previous payments by State Farm and by Clark and Southeastern is without merit. The UM insurer is entitled to credit for special damages paid to the insured prior to trial and also a reimbursement or credit for the proceeds of any settlement recovered by the insured arising out of the covered accident. LSA-R.S. 22:1406(D)(4), supra; see also Launey v. Thomas, 379 So.2d 27 (La.App. 3rd Cir. 1979).

For the above and foregoing reasons that part of the trial court judgment appealed from awarding penalties and attorney’s fees is reversed and plaintiff’s demand for same is dismissed. In all other respects the judgment appealed from is hereby affirmed. Cost of this appeal are to be paid by appellant.

REVERSED IN PART; AFFIRMED IN PART.

      . Appellant contends the trial court erred (1) when it allowed the introduction of an auto repair bill, however, said bill was admitted into evidence without objection; (2) appellant contends the trial court erred in prohibiting it from questioning appellant’s claims superintendent as to the manner in which the company was prejudiced by failure of notice, however, the court only sustained an objection to a particular question which the claims superintendent began to answer in opinion form, thereafter, counsel for State Farm simply did not pursue this line of questioning and cannot now say he was “prohibited” from doing so by the trial court; and (3) defendant contends plaintiff should not have been allowed to call Clark as a witness’under the rule, i. e., LSA-C.C.P. Article 1634, as Clark was not “truly” adverse because after his testimony the compromise and settlement was made and Clark was dismissed from the suit. The fact that Clark was subsequently dismissed because of a settlement does not change the fact that at the time Clark was called to the stand, he was a named defendant in the suit and therefore an adverse party pursuant to LSA-C.C.P. Article 1634. We also note that appellant’s contention that the trial judge made prejudicial remarks before the jury when ruling on objections is not supported by the record or reflected in the result.


source: Caselaw Access Project

author: CUTRER, Judge.

license: Public Domain

text:
    Betty Leger TRAHAN, Plaintiff-Appellant, v. John TRAHAN, Defendant-Appellee.
    No. 7696.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1980.

      Shelton & Legendre, L. H. Oliver, Lafayette, for plaintiff-appellant.
    Everett & Everett, Glennon P. Everett, Crowley, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

The issue presented by this appeal is the determination of the sums that may be due the separate estates of a husband and wife as a result of a dissolution of their community property.

Betty Trahan filed suit for separation against her husband, John Trahan. John answered the petition and also filed a rule to have the community property partitioned by licitation. A judgment of separation was rendered in favor of Betty. The rule was made absolute and the community property was ordered partitioned by licitation. A judgment was also rendered ordering that, upon dissolution of the community and sale of such property, the proceeds would be allocated as follows:

“1 John Trahan’s separate estate shall be credited and receive $34,860;
2. Betty Leger Trahan’s separate estate will be credited and receive $2,000;
3. The remainder shall be equally divided between John Trahan and Betty Leger Trahan.”

Betty Trahan appealed the judgment and John Trahan answered complaining of error by the trial court for granting any credit to Betty. We affirm.

The parties were married on August 28, 1975. They had lived together for about two years before their marriage. The residence in which they lived was owned by John Trahan before his marriage to Betty Trahan. It was clearly his separate property. While living on the premises certain improvements were made to the residence. Although the extent of the improvements during the marriage is in dispute, it is agreed that a new roof was installed after the marriage.

During the marriage a homeowner’s insurance policy covering the residence was purchased in the name of John Trahan. Three or four months later, the home burned and John Trahan received $46,560.00 in insurance proceeds. (An advance of $1,000.00 was received, but Trahan does not seek reimbursement for this.)

The insurance proceeds of $45,560.00 were deposited in an account. This account was one that John Trahan had prior to his marriage and was in his name only. Shortly thereafter, $10,000.00 of that money was transferred into another account held in the name of Betty Trahan. This checking account was opened after the insurance proceeds were received. John and Betty then purchased land at another location in the area and constructed a new home thereon. The funds from the “John Trahan” account ($35,560.00) were used to pay for the land, materials and labor furnished to build a new residence. A portion of the funds ($10,000.00) deposited in Betty’s account was used to pay for the construction of the new home. Other community expenses were paid from Betty’s account such as food, clothing, etc.

The nature of the funds used to construct the new residence is the crux of the dispute before us. Both parties agree that the new residence was constructed on property purchased during the marriage and was a community asset.

INSURANCE PROCEEDS

We conclude that the proceeds from the fire insurance policy were the separate property of John Trahan. The object of the insurance policy was the residence belonging to the separate estate of John Trahan. When that residence burned, the estate, consisting of the residence, was transformed into the insurance proceeds.

We base our conclusion on the case of Thigpen v. Thigpen, 91 So.2d 12 (La.1956), in which our Supreme Court faced a similar situation. In that case, the parties, Mr. and Mrs. Thigpen, had a number of disputes regarding their community property settlement which was being settled as a result of a divorce proceeding.

During the existence of a previous marriage, Mr. Thigpen and his wife purchased several buildings. Sometime later, the first wife died and the property then became jointly owned by the deceased wife’s heirs and Mr. Thigpen. Later, Mr. Thigpen remarried. Clearly, the interest in the property purchased during the existence of his first marriage was separate property of the husband as to the second marriage. During the existence of the second marriage, Thig-pen purchased a fire insurance policy to cover the buildings. Shortly thereafter the buildings burned and the loss was replaced with funds from the insurance proceeds. The Supreme Court held that these insurance proceeds did not become community property. The court noted that since the premiums were paid out of the community funds, there may have been a justifiable claim for reimbursement for the wife’s contributions to the premiums, but this did not make the proceeds themselves community property.

The essential similarity is that the husband owned separate property which was covered in a policy purchased during the community. After the fire loss, the insurance proceeds maintained their status as separate property. We hold that the proceeds of the insurance policy in this case were John Trahan’s separate property.

As previously stated, the new residence was built during the existence of the community and is thus community property. If the purchase of this property and the construction of a house thereon was made with John Trahan’s separate funds, however, the community estate is indebted to the separate estate of John Trahan for the amount expended on the house. In Compton v. Compton, 371 So.2d 313 (La.App. 2nd Cir. 1979), the court held as follows:

“. . . The law is well established ■that a husband who spends his separate funds on community property has the right to claim reimbursement from the community for money spent by him for the benefit of the community so long as the community still benefits from this separate contribution at the time of its dissolution. . . . ”

The evidence is clear that all the proceeds of the insurance policy deposited in John Trahan’s checking account, $35,560.00, were paid for the purchase of the land and construction of the new house. This was the testimony of both Betty and John Trahan. Betty Trahan also stated that $3,954.29 of the $10,000.00 placed in her checking account was used for the construction of the new home. In his reasons for judgment, the trial judge rounded this figure and concluded that $3,950.00 had been expended from Betty’s account on the new home.

The trial court summarized the computation as follows:

“In summary, a simple computation of the decision is:
separate funds expended by Mr. Trahan $89,460
less community contributions: roofing $1,300
general repair 3,000
fire insurance premiums 300
4,600
Total credit to Mr. Trahan, individually $34,860”

Counsel for Betty Trahan contends that no credit should be given to John Tra-han’s separate estate. It is contended that the proceeds of the insurance policy were acquired during marriage and, as such, it is presumed that such proceeds falls into the community. Counsel for Betty Trahan relies principally on the case of Palama v. Palama, 323 So.2d 823 (La.App. 4th Cir. 1975), writ den., 326 So.2d 381 (La.1976), as authority for his position that the proceeds of the insurance policy were a community asset. Palama is not applicable to this case. In Palama, the fire insurance was purchased during the existence of the community to cover the residence situated on the husband’s separate property. The residence was insured for $25,000.00. The court concluded that the community had expended $15,000.00 on the construction of the residence and that this expenditure enhanced the value of the residence by an additional $10,000.00. The court then concluded that the proceeds of the insurance ($25,000.00) must be paid into the community and divided between the husband and wife. The case does not hold that the proceeds of the fire policy were community, but it held that such proceeds must be used to reimburse the community for the community expenditures and the enhancement of the value of the separate property. The proceeds of the insurance policy in this case are John Tra-han’s separate property. Thigpen, supra.

An examination of the record convinces us that the trial court correctly held that John Trahan’s separate estate must be credited with $34,860.00 out of the sale of the community property.

CREDIT TO MRS. TRAHAN

We disagree with the appellee’s argument that the trial court erred in its determination that the community was indebted to Mrs. Trahan in the amount of $2,000.00 for the loss of certain personal property which was her separate property.

There is a testimony that Betty Trahan sustained a loss of furniture and other personal property in the fire. Betty Trahan testified that this was her separate property. Betty’s sister corroborated her testimony in this regard. The insurance carrier paid $15,000.00 for the loss of personal property. John Trahan estimated his loss of personal property to be in the range of $10,000.00 to $12,000.00. The exact value of the items was not clearly established but the trial court felt that a value of Betty Trahan’s personal property of $2,000.00 was justified. We find no manifest error in the trial court’s determination of the value of Betty Trahan’s separate personal property.

For the reasons assigned, the judgment of the trial court is affirmed. Costs of appeal are to be paid by plaintiff-appellant.

AFFIRMED.

      . Commingling of funds is not raised as an issue herein.

      . This sum of $4,600.00 for community contributions is not contested herein.


author: DOMENGEAUX, Judge.

text:
    Loiva RIGNEY, Plaintiff-Appellant, v. HOWARD BROTHERS DISCOUNT STORES, INC., et al., Defendants-Appellees.
    No. 7715.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1980.

      Camp, Carmouche, Palmer, Barsh & Hunter, David Frohn, Lake Charles, and John F. Robichaux, Alexandria, for plaintiff-appellant.
    Stafford, Stewart & Potter, • Russell L. Potter, Alexandria, for defendants-appel-lees.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   DOMENGEAUX, Judge.

Loiva Rigney slipped and fell on an “Icee” in a Howard Brothers Discount Store in Pineville, Louisiana, on Saturday, September 16, 1978. She later sued Howard Brothers and its insurer, North-West Insurance Company, for damages, and a jury trial was held. On October 23, 1979, the twelve member jury made certain findings of fact by responding only to the first two of the six following interrogatories submitted to it, as follows:

INTERROGATORIES
1.Do you find that the plaintiff, Loiva Rigney slipped on a foreign object?
YES X NO _
If your answer is NO, then fill out the verdict sheets for both defendants. If your answer is YES, proceed to the next question.
2. Do you find that the plaintiff, Loiva Rigney received injuries as a result of this accident?
YES_ NO X
If your answer is NO, then fill out the verdict sheets for both defendants. If your answer is YES, proceed to the next question.
3. Do you find the defendant, Howard Bros. Discount Store, Inc. negligent?
YES_ NO _
If your answer is NO then fill out the verdict sheet for Howard Bros. Discount Store, Inc. If your answer is YES, proceed to the next question.
4. Do you find that the negligence of defendant, Howard Bros. Discount Store was the cause of plaintiff’s injuries?
YES_ NO _
If your answer is NO, then fill out the verdict sheet for Howard Bros. Discount Store, Inc. If your answer is YES, proceed to the next question.
5. Do you find the Plaintiff, Loiva Rigney, Contribu-torily negligent and that her negligence was the cause of her accident?
YES _ NO_
If your answer is NO, then fill out the verdict sheet for plaintiff, Loiva Rigney. If your answer is YES, then fill out verdict sheets for both defendants.
6. In terms of money, what is the amount of damages do you fix that the plaintiff, Miss Rigney, sustained as a result of her injuries?
A. Special Damages
(1) Past Medical _
(2) Future Medical and hospital expenses _
B. General Damages
(1) Physical pain, Suffering and discomfort, past and future _
(2) Mental anguish, pain and suffering, both past and future _
TOTAL _
DATED: 10-23-79 s/ Robert P. Smith
[Jury Foreman]

The judgment was signed in Howard Brothers’ favor in accordance with the jury’s findings. From this judgment plaintiff appeals arguing that while other issues, such as negligence, could have been decided either way, the jury was clearly wrong in finding that plaintiff sustained no injuries as a result of her fall. We affirm the judgment because we find that Howard Brothers was not negligent. This was an issue not considered by the jury because of its finding that plaintiff received no injuries as a result of the fall. Since we find that the defendant was not negligent, Miss Rigney could not recover from the defendant even if she did suffer the injuries of which she complained.

Without dispute, the following facts were established by the evidence: Loiva Rigney had just purchased several small items at checkout register # 2 or #3 from cashier Trudy Broussard; as she walked through the checkout aisle toward the exit with her purchases she looked back to ascertain whether her 3-year old daughter was following her; at this point she slipped on a partially melted strawberry Icee; she did not spill the Icee nor did she see the spill before the mishap. With these facts proven, the burden of proof shifted to the defendant to go forward with the evidence and rebut the inference of negligence on its part. Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976); Kavlich v. Kramer, 315 So.2d 282 (La.1975); Cline v. Kroger Company, Inc., 379 So.2d 1184 (La.App. 3rd Cir. 1980).

A store is not the insurer of its patrons’ safety, but it does owe a duty of reasonable care under the circumstances to protect its customers from substances on its floors. “Reasonable protective measures, including periodic inspection, must be taken to keep the aisles and floors free of substances or objects that may cause customers to fall. [Emphasis added and citations omitted.]” Gonzales v. Winn-Dixie, La., 326 So.2d at 488. Determination of whether a store’s protective measures have been reasonable is largely dependent on each case’s circumstances. Gonzales v. Winn-Dixie, supra; Givens v. National Tea Company, 347 So.2d 1194 (La.App. 1st Cir. 1977). Under the facts and evidence here, we conclude that Howard Brothers has successfully rebutted the inference of negligence on its part.

According to the testimony of O. D. Gray, who was the General Manager of this Howard Brothers store when the incident occurred, every Howard employee is trained to observe the “Golden Rule”. This rule requires that whenever an employee observes a spill or overturned carton or other aisle obstruction, he cannot leave; he must call for assistance from another employee who brings equipment necessary to clean up the hazardous area. In observance of this rule, every employee was expected to be constantly on the lookout for spills.

In addition to the on-going inspections necessitated by the Golden Rule Mr. Gray testified that he conducted a thorough store-wide inspection every morning and that the entire store was routinely cleaned every evening between 4 P. M. and 9 P. M. by an employee hired for that purpose only. Also, Mr. Gray testified that he had fallen into the habit of reinspecting the entire store every Saturday afternoon between 1 P. M. and 2 P. M. As part of this Saturday afternoon routine, Mr. Gray stated that he walked through every checkout aisle in search of spills or other hazards. This testimony is important because it shows that on a Saturday, a day on which the plaintiff slipped, the floor in the checkout area had been inspected by the manager of the store twice — in the early morning and again at about 2 P. M.

More crucial to our decision is the testimony of Ralph Stutson, who was the supervisor of the checkout area at the time of the fall. He emphatically testified that he passed by Trudy Broussard’s counter no more than two minutes before the accident occurred. He inspected the floor area as he passed and did not see anything on the floor. If anything, such as an Icee, had been on the floor, he would have seen it. Instead, he saw nothing.

Mr. Stutson’s testimony is partly corroborated by a fact established by the testimony of the plaintiff. Miss Rigney testified that she slipped on a partially frozen Icee. Mr. Gray testified that an Icee is a liquid refreshment sold in a partially frozen state. Therefore, whoever spilled the Icee must have done so very shortly before Miss Rig-ney passed through the aisle since its state on the floor closely approximated the state in which it was sold.

Miss Rigney further testified that the area was well lighted. Had she not been looking backwards at the time of her slip, she conceivably would have seen the Icee on the floor. Additionally, the floor was light colored whereas the Icee on the floor was red, so the Icee could easily have been seen because of the contrast in the colors. This does not necessarily suggest that Miss Rig-ney was contributorily negligent in failing to see the Icee on the floor, but these facts do further corroborate the testimony of Ralph Stutson that if anything had been on the floor in that area, he would have seen it.

Even if Mr. Stutson’s testimony is discounted, the other facts mentioned in the preceding paragraph suggest that the Icee was on the floor for such a short period of time that its presence on the floor could not have been detected before the fall using the most reasonable inspection procedures. An analogous situation existed in Baptiste v. Schwegmann Brothers Giant Supermarkets, Inc., 338 So.2d 1163 (La.App. 4th Cir. 1976). There, a customer slipped and fell on some ice cream. When she first noticed the ice cream it was completely melted. This did not give any indication, though of the amount of time the ice cream had been on the floor when plaintiff slipped because she did not realize until up to an hour after her fall what caused her slip. Therefore, the Court dismissed the possible defense that the foreign substance had been on the floor such a short period of time that the most reasonable inspection would not have discovered it. Even though that defense was disallowed, the five man court was sharply divided, three to two, on whether the reasonableness of the inspection procedures exculpated the defendant from any inference of negligence. The majority concluded that the inspection procedures, which were as reasonable as the ones employed here, did not satisfactorily discharge the defendant’s burden. We feel that the additional facts in this case, that (1) the Icee was still partially frozen when it was slipped on, and (2) Mr. Stutson’s testimony that he had inspected that area of the floor two minutes before the accident without discovering anything distinguishes this case from the Baptiste case and are sufficient enough distinctions to warrant a different result.

For the above and foregoing reasons, then, the judgment denying plaintiff’s claims against defendant is affirmed because neither the defendant, Howard Brothers, nor its employees, were negligent. All costs are assessed against the plaintiff, Loiva Rigney.

AFFIRMED.

      . He explained that he did this because Saturday afternoon was his day off and he did not want to leave the store without inspecting it again. He could not testify that he remembered inspecting the store on the Saturday afternoon in question but the inspection was such a part of his routine that he felt confident he did perform the inspection.


author: GULOTTA, Judge.

text:
    STATE of Louisiana in the Interest of Robin SAPIA.
    No. 11454.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1980.
    Writ Granted Sept. 26, 1980.

      Steven E. Adams, Staff Atty., Charles F. Castille, Acting Gen. Counsel, Baton Rouge, William C. Cox, New Orleans, for plaintiff - appellant.
    William C. Credo, III, Gretna, for plaintiff-appellee.
    Denis P. Ganucheau, Harahan, for defendant-appellee.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   GULOTTA, Judge.

Pursuant to a petition in the Juvenile Court for the Parish of Jefferson alleging that the juvenile, Robin Sapia, is in need of care as defined in Code of Juvenile Procedure Article 13(14) on December 4, 1979, the trial judge committed the juvenile to the custody of the Administrator of Coliseum House, a residential treatment facility, for placement in that facility for an indefinite period of time.

On December 13, 1979 the court-appointed attorney for the juvenile filed a Rule to Show Cause why the State of Louisiana should not provide payment to Coliseum House for the housing, care and treatment of the minor. In the show cause motion it is alleged that the parents of the minor “are unable to pay” the amount required for maintaining the juvenile in Coliseum House.

The Department of Health and Human Resources opposed the rule to show cause claiming that they alone have the exclusive authority for placement of juveniles in need of care (where custody has been placed with them) and that the proper placement of Robin is South East Louisiana State Hospital at Mandeville and not Coliseum House.

The trial judge, after receiving an oral stipulation from the Commissioner of Administration of the State of Louisiana acknowledging that the state, the Louisiana Department of Health and Human Resources, and its subsidiary agency, the Office of Human Development, had sufficient funds and authority to expend those funds to place Robin Sapia in a facility most appropriate for the child’s needs and was willing to assume that economic responsibility when appropriate placement had been determined, ordered the Louisiana Department of Health and Human Resources to pay for the expenses incurred for the housing, care and treatment of Robin in Coliseum House.

We are confronted in the Department’s appeal with whether the Department of Health and Human Resources has the ultimate authority for the placement of a child adjudged to be in need of care, or whether the court of competent jurisdiction has the authority to make that determination. We are confronted also with whether the state, through the Department of Health and Human Resources, can be compelled, by order of the court, to pay the costs of placement, care and treatment in a private, licensed facility when the Department believes that a state-operated residential treatment center is a proper placement.

It is the Department’s contention that the responsibility for placement, care and treatment for juveniles in need of care has been statutorily placed with the Office of Human Development of the Department of Health and Human Resources. See LSA-R.S. 36:258. The Department points out further that, consistent with that responsibility, the legislature also provided that the exclusive authority for the selection of the treatment program and center for placement rests with the Department and not with the juvenile court, when custody of the child had been placed with the Department.

In connection with the responsibility for payment, the Department, relying on LSA-R.S. 15:1081, claims that the sole statutory authorization for payment of the cost of care and treatment of juveniles in need of care rests with them. We reject these contentions.

If we were to follow the logic of the Department’s argument, the constitutionally-created juvenile courts and family courts of this state would be completely powerless and ineffective in the determination of the needs and best interests of the juveniles who appear before those courts. Further, were we to follow the rationale of the Department’s position, where there exist different opinions between the Department and the court as to the proper treatment for a child in need of care (as in our case), the bureaucratic agency would rule supreme in its determination without the intervention, supervision, or control of the court. In that event there would be no appeal from a decision of the Department of Health and Human Resources, resulting in unfettered and unbridled authority of a state agency not subject to judicial review in any case. This untenable position would contravene and violate the basic constitutional rights and guaranties secured to all citizens of this state. It also would completely nullify the effect and statutory scheme of the Code of Juvenile Procedure, as well as the operation of the juvenile and family courts in accordance with the guidelines set forth in the Code.

Commencing with the declaration of rights of the LSA-Const.1974, Art. 1, § 2 provides:

“Section 2. No person shall be deprived of life, liberty, or property, except by due process of law.”

Further, the right to judicial review is guaranteed in Art. 1, § 19 of the Constitution and reads as follows:

“Section 19. No person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all evidence upon which the judgment is based. This right may be intelligently waived. The cost of transcribing the record shall be paid as provided by law.”

Also included in the Declaration of Rights is the right of access to the courts by citizens of this state. Art. 1, § 22 provides:

In addition, in the 1974 Constitution, under Distribution of Powers, Art. 2, § 1 provides:

“Section 1. The powers of government of the state are divided into three separate branches: legislative, executive, and judicial.”
“Section 2. Except as otherwise provided by this constitution, no one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the others.”

The painstakingly-prepared Code of Juvenile Procedure, governing all courts exercising juvenile jurisdiction in this state, sets forth in explicit and clear language its purpose and construction in Art. 2 of the Code, which provides as follows:

“Art. 2. Purpose and construction.
The provisions of this Code shall be liberally construed to the end that each child coming within the jurisdiction of the court shall be accorded due process and shall receive, preferably in his own home, the care, guidance, ’ and control that will be conducive to his welfare and the best interests of the state, and that in those instances when he is removed from the control of his parents, the court shall secure for him care as nearly as possible equivalent to that which the parents should have given him. These Code provisions shall be construed to secure simplicity in procedure, fairness in adjudication and administration, and the elimination of unjustifiable delay.”

Consistent with the mandate of Art. 2, subsequent provisions of the Code outline specifically the responsibilities, duties and authority of a court exercising jurisdiction over juveniles in this state. Art. 19 of the Code provides:

“Art. 19. Inherent power and authority of courts.
A court possesses inherently all powers necessary for the exercise of its jurisdiction and the enforcement of its lawful orders. It has authority to issue such writs and orders as may be necessary or proper in aid of its jurisdiction. It has the duty to require that the juvenile proceedings shall be conducted with dignity and in an orderly and expeditious manner.”

Consistent also with the constitutional and statutory scheme of the ultimate responsibility for the determination of the best interest of the child being placed with the juvenile courts are the following Code of Juvenile Procedure articles:

“Art. 78. Predisposition investigation and report.
Following adjudication, the court may order a predisposition investigation. The investigation shall include the circumstances, needs, and social history of the child and his family, and also the circumstances surrounding the factual allegations of the petition. A written report of the investigation and findings shall be submitted to the court prior to the disposition hearing.”
“Art. 79. Physical and mental examination for disposition.
Following the adjudication, the court may order such physical and mental examination and evaluation of the child and his parents as may be helpful in determining a fair and just disposition.”
“Art. 85. Disposition; children in need of care.
A. In a case in which a child has been adjudicated to be in need of care, the court may:
(1) Place the child in the custody of a parent or such other suitable person on such terms and conditions as deemed in the best interest of the child;
(2) Place the child in the custody of a private or public institution or agency;
(3) Commit a child found to be mentally defective to a public or private mental institution or institution for the mentally defective; or
(4)Make such other disposition or combination of the above dispositions as the court deems to be in the best interest of the child.
B. A child in need of care shall not be committed to the Department of Corrections.”
“Art. 86. Disposition; generally.
A. The court should impose the least restrictive disposition which the court finds is consistent with the circumstances of the case, the needs of the child, and the best interest of society. The court shall not remove a child from the custody of his parents unless his welfare or the safety and protection of the public cannot, in the opinion of the court, be adequately safeguarded without such removal.
B. If the court commits a child to a private institution or agency, it shall select one that is licensed by the Department of Health and Human Resources. Where no institution, social agency or association licensed by the Department of Health and Human Resources for care of placement of children is available to the court, the court may commit the child to some other institution, social agency, or association, which in the judgment of the court is suitable for the care of such child.”
“Art. 91. Motion to modify judgment of disposition.
A. On its own motion or on motion of the district attorney, the child, his parents or the probation officer, the court may modify a judgment of disposition.”
“Art. 93. Modification of judgment of disposition.
A judgment of disposition may be modified if the court finds that the condition and circumstances justify the modification.
In delinquency proceedings, if a judgment of disposition places a child on probation, the judgment may not be modified to assign the child to the custody of the Department of Corrections unless the court finds that a condition of probation has not been observed.”
“Art. 97. Judgments appealable.
In cases in which a child is adjudicated to be a delinquent, in need of supervision, or in need of care, an appeal may be taken only from a judgment of disposition, and shall be to the appropriate court of appeal.
The appeal shall include all errors assigned concerning the adjudication and disposition.”

It is important to recognize that any deprivation of freedom or of the right to prescribed treatment or any sanction imposed on any individual must be protected by the constitutional right of due process in the courts of our state, subject to review by the proper and appropriate appellate tribunal. These sacred guaranties cannot be relegated to a bureaucratic agency not subject to review by any judicial forum. We would be hard-pressed to find any state or federal agency with such broad, unquestioned and unlimited authority as that claimed by the Department of Health and Human Resources in the instant case.

It is apparent from a reading of the statutes relied upon by the Department in the instant case that the legislative intent was to place the responsibility for the placement, care and treatment of juvenile offenders and those in need of supervision and in need of care with the Department of Health and Human Resources and the Office of Human Development. It is clear that the legislative intent was to provide for centralized responsibility for care, in order to promote the efficient administration of resources and programs for those who require these services. Furthermore, with the creation of this department, budgetary control apparently could be more efficiently administered. It could not have been the intent of the legislature, in the creation of this department and the placing of responsibility ánd authority upon it, that the courts exercising juvenile jurisdiction in this state would be deprived of their constitutional mandate to adjudicate and make dispositions which the judge believes to be in the best interest of those persons who appear before the court. See LSA-C.J.P. Arts. 5 and 86.

Accordingly, we conclude that in a dispute between the juvenile or family court of competent jurisdiction and the Department of Health and Human Resources as to the proper placement of a juvenile who has been adjudged a delinquent, in need of supervision, in need of care or in any case in which the competent juvenile or family court has exclusive jurisdiction, the final and ultimate determination of the dispute and issue rests with the juvenile or family court, and the Department of Health and Human Resources is compelled to abide by the decisions of those courts, subject to appellate review. Having so concluded, we affirm the judgment of the trial court.

AFFIRMED.

      . C.J.P. article 13(14) reads as follows:
      “(14) ‘Child in need of care’ means a child: (a) Whose parent inflicts, attempts to inflict, or, as a result of inadequate supervision, allows the infliction or attempted infliction of physical injury or sexual abuse upon the child which seriously endangers the physical, mental or emotional health of the child;
      (b)- Whose physical, mental or emotional condition is substantially threatened or impaired as a result of the refusal or neglect of his parent to supply the child with necessary food, clothing, shelter, medical care, counseling or education, or as a result of the parent’s neglect or imposition of cruel punishment; or
      (c)Who is without necessary food, clothing, shelter, medical care, education, or supervision because of abandonment by, or the disappearance or prolonged absence of, his parent, or because of any other reason.”

      . LSA-R.S. 13:1580, relied on by the Department, provides:
      “§ 1580. Decree
      Notwithstanding any other provision of law to the contrary, including but not limited to any provision of the code of juvenile procedure, when a child is referred to the Department of Health and Human Resources for care and treatment, and when such care and treatment are to be provided in a setting other than his own home or the home of a relative, the child shall be assigned to the custody of the Department of Health and Human Resources, rather than to a particular institution or facility. This provision for the assignment of custody shall apply regardless of whether the care and treatment are provided directly by the Department of Health and Human Resources or through purchase of service arrangements for which the Department of Health and Human Resources provides funding. The Department of Health and Human Resources shall have authority to select from the resources that are available the types of services and service setting most appropriate to the child’s needs and to place the child in that setting.”

      . LSA-R.S. 15:1081 reads as follows:
      “§ 1081. Purpose
      Notwithstanding any other provision of law to the contrary, the provisions of this Part shall serve as the sole statutory authorization under which the Department of Health and Human Resources shall make payments for the care and treatment of children in nonstate operated child caring agencies, child placing agencies, shelter care facilities, and maternity homes.”


text:
    Mary Peterson, Wife of/and Alex G. SULIK v. MONNERJAHN CONSTRUCTION COMPANY, INC.
    No. 11705.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1980.

      Ogden, Cambon & Welch, Carol R. Welch, LaPlace, for plaintiffs-appellees.
    Tony C. Tillman, LaPlace, for defendant-appellant.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   GULOTTA, Judge.

Defendant has appealed from a judgment denying its exception of improper venue, maintaining its exception of insufficiency of service, and dismissing as moot its exception of nonjoinder of necessary party. Plaintiffs have moved to dismiss the appeal on the grounds that the trial court’s interlocutory judgment does not result in any irreparable injury to defendant.

This contention is well-founded. As noted in plaintiffs’ motion, in Lafayette Insurance Company v. Tassin, 197 So.2d 925 (La.App. 4th Cir. 1967), this court held a judgment overruling an exception of improper venue nonappealable absent a showing of irreparable injury. See LSA-C.C.P. arts. 2083, 1841. That defendants would be compelled to undergo the expense of trying the case before the matter of proper venue could be determined by the appellate court was insufficient to be considered to be irreparable injury. See also, Millet v. Johnson, 352 So.2d 1301 (La.App. 4th Cir. 1977); Green v. New Orleans Public Service, Inc., 194 So.2d 398 (La.App. 4th Cir. 1967); Mauterer v. Tillery, 328 So.2d 755 (La.App. 1st Cir. 1976); Shaw v. Garrett, 295 So.2d 897 (La.App. 2nd Cir. 1974); Lounsberry v. Hoffpauir, 199 So.2d 553 (La.App. 3rd Cir. 1967); LSA-C.C.P. art. 2083.

Accordingly, the appeal is dismissed. The matter is remanded to the trial court for further proceedings. The assessment of costs is to await the outcome of the litigation.

APPEAL DISMISSED.


author: BOUTALL, Judge:

text:
    Ethel Bergeron PONS, w/o and Francis Anthony Pons, Sr. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Sentry Insurance Company, Loretta Tarto, w/o and Jack Tarto, in solido.
    No. 11064.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1980.

      Favret, Favret, Demarest & Russo, J. Paul Demarest, New Orleans, for Ethel Bergeron Pons and Francis Pons, plaintiffs-appellees.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Harvey L. Strayhan, Linda S. A. Burke, New Orleans, for Loretta Tarto, w/o and Jack Tarto, and State Farm Mutual Automobile Insurance Co., defendants-appellants.
    Young, McMahon & Levert, Edward J. Levert, Jr., New Orleans, for Sentry Insurance Company, defendant-appellant.
    Before BOUTALL, BARRY and GARRISON, JJ.
   BOUTALL, Judge:

As a result of an automobile collision, the driver of one car, Ethel Bergeron Pons, and her husband Francis Anthony Pons filed suit for damages and personal injuries against the driver of the other automobile, Loretta Tarto, her husband Jack Tarto, their insurer State Farm Mutual Automobile Insurance Company, and the Pons’ uninsured-underinsured motorist carrier, Sentry Insurance Company. A jury verdict was rendered in favor of plaintiffs, and this appeal is taken from the resultant judgment only by Mr. and Mrs. Tarto.

The Tarto appeal has two assignments of error: The finding of negligence and liability in the operation of the Tarto vehicle, and the award of judgment against the Tartos in favor of plaintiffs’ underinsured motorist carrier, Sentry Insurance Company.

As to the liability for the collision, the record displays conflicting testimony as to how the accident happened, the two drivers, Mrs. Pons and Mrs. Tarto, each giving her version of the occurrence. This posed a question of credibility to be solved by the jury, and it was obviously solved in favor of Mrs. Pons. Her version of the collision was supported by the testimony of three other witnesses, a neighbor who came upon the scene immediately following the collision, the investigating police officer, and an expert in accident reconstruction. Additionally we point out that the testimony of Mrs. Pons was rather forthright, while that of Mrs. Tarto was confusing. Based upon the evidence we find that the collision occurred as a result of Mrs. Tarto pulling her automobile away from the curb alongside of her house into the path of the oncoming Pons vehicle without observing a proper lookout and without keeping her car under control. The evidence preponderates in favor of plaintiff.

The second error assigned is the casting of Mr. and Mrs. Tarto in judgment on the third party demand of the underinsured motorist carrier, Sentry Insurance Company.

The judgment appealed from came about as follows: The jury brought in a general verdict in the amount of $41,000 in favor of plaintiffs against all four defendants. In response to that verdict, the judge rendered a judgment in favor of plaintiffs against all four defendants for $41,000, and further decreed judgment in favor of Sentry Insurance Company for $16,000. It should be noted that the limits of State Farm Mutual’s policy was $25,000. Upon this being called to the judge’s attention, he amended his judgment and rendered judgment in favor of plaintiffs against State Farm Mutual and Mr. and Mrs. Tarto for $25,000 and judgment in favor of plaintiffs against Sentry, their underinsured motorist carrier, in the sum of $16,000. He further decreed that there be judgment in favor of Sentry and against Mr. and Mrs. Tarto for $16,000. Although that judgment did not specifically cast the Tartos in judgment in favor of plaintiffs for the $16,000 amount above their insurance policy, the effect was achieved by casting Sentry for $16,000 in favor of plaintiffs, and then casting the Tartos for that amount in favor of Sentry.

The Tartos contend that the trial judge erred in awarding judgment in favor of Sentry Insurance Company on its subrogat-ed claims against them as underinsured motorists. They rely on the principles announced in the case of Niemann v. Travelers Insurance Company, 368 So.2d 1003 (La. 1979). It is their contention that the effect of this case is to eliminate any subrogation rights by an underinsured motorist carrier against the underinsured motorist.

We point out that the issue in the Niemann case is quite different from the issue posed here. As pointed out in Niemann at page 1004:

“The issue presented in this litigation is whether a ‘consent to settle clause’ in an uninsured motorist policy is valid and operative, and whether a plaintiff who without his UM carrier’s consent settles and releases an Under insured tortfeasor and that tortfeasor’s liability insurance carrier has defeated his cause of action against the UM carrier.”

In the matter before us, there is no voluntary settlement concerned. This case was tried and went to judgment. After judgment was rendered, the liability insurer paid its policy limits, and the underinsured carrier, Sentry, paid the balance of the judgment awarded against it. Although the judgment did not provide a decree in favor of plaintiffs against the Tartos for $16,000 in accordance with the verdict rendered, nevertheless the effect of the judgment is to bring it substantially within the provisions of R.S. 22:1406(D)(4) in that the insurer is entitled to the proceeds of any judgment resulting from the exercise of any rights of recovery of its insured against the legally responsible tortfeasor. This interpretation is further supported by the legal subrogation granted in Louisiana Civil Code Article 2161: “Subrogation takes place of right; * * * (3) For the benefit of him who, being bound with others, or for others, for the payment of the debt, had an interest in discharging it.”

Accordingly, we conclude that, under the circumstances of this case, the under-insured motorist carrier, Sentry Insurance Company, is entitled to judgment against the negligent tortfeasor for the amount of the judgment it was required to pay its insured, and accordingly, we affirm the judgment.

AFFIRMED.


author: BOUTALL, Judge.

text:
    Clarence F. FULLER v. John L. SCOTT, Delta Concrete Piling Inc., National Car Rental System, Inc., and the Travelers Insurance Company.
    No. 11099.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1980.

      Philip K. Jones, Norman L. Sisson, Marshall W. Wroten, Baton Rouge, Jesse S. Guillot, Trial Atty., New Orleans, for third-party defendant-appellee, Louisiana Dept, of Transp. and Development.
    Robert Henry Sarpy, Jr., of Jones, Walker, Waechter, Poitevent, Carrere & De-negre, New Orleans, for defendants-appellants, John L. Scott, Delta Concrete Piling, Inc., National Car Rental System, Inc. and The Travelers Ins. Co.
    Before BOUTALL, GARRISON and BARRY, JJ.
   BOUTALL, Judge.

This is an appeal from a judgment maintaining an exception of no cause of action in favor of a defendant who filed the exception after trial on the merits and coincident with submission of post-trial briefs.

The pertinent facts are that there was a collision on April 13,1974 between an automobile driven by plaintiff, Clarence F. Fuller and a tractor trailer driven by John L. Scott, insured by The Travelers Insurance Company. On March 11, 1975, Fuller sued Scott, Travelers, and other defendants in solido for his personal injuries and damages. On May 5, 1975, Scott and Travelers answered plaintiff’s petition and filed a third-party demand against the Department of Highways, State of Louisiana, alleging it was liable for contribution and setting out the specific acts of negligence of the department. In summary, the third-party petition alleged that the Department of Highways was negligent for failing to maintain the road and the shoulders properly and failing to repair the roadway after receiving notice that there were potholes in the roadway, and ended with a prayer for judgment for contribution in the event of recovery against them. This pleading was filed more than one year after the accident.

More than three years later, on August 16, 1978, Fuller filed a supplemental and amending petition in which he added the Department of Highways as a party defendant, alleging basically the same negligent acts as the third party petition and prayed for judgment in plaintiff’s favor against all of the defendants jointly, severally, and in solido.

After considerable other pleadings, the case was set for trial on April 16, 1979 and on the morning of trial was partially settled by an agreement of Scott and Travelers to pay plaintiff Fuller the sum of $250,000 in compromise, in return for which Fuller assigned all of his claims against the Department of Transportation and Development (successor to the Department of Highways) and Travelers reserved its claim against the Department for contribution. A stipulation to this effect was entered into the record, and all parties agreed that trial would be had on the issue of the liability of the Department for the alleged acts of negligence.

After two days of trial, the evidence was concluded and the parties were to submit post-trial briefs in support of their respective positions. On May 7,1979, the Department filed an exception of no cause of action along with its brief, and thereafter the trial judge maintained the exception of no cause of action, dismissing the Department of Transportation and Development from the law suit. It is this judgment which has been appealed by Travelers Insurance Company.

Under the circumstances of this case, we find error in the maintaining of the peremptory exception of no cause of action. Instead, the court should have rendered judgment on the merits, which had already been tried. At the same time, we point out that our consideration of the evidence presented on the merits leads us to a conclusion that there was no negligence on the part of the Department and we would affirm the result reached by the trial court, i. e., dismissal of Travelers’ claim against the Department.

Initially, we note that considerable time was devoted in brief to the matter of prescription of these claims, and we are referred to a number of cases on prescription. The judgment before us however is a judgment on the peremptory exception of no cause of action and it is elementary that there are considerable differences between these two peremptory exceptions, both in the basis of the objection raised by each one (C.C.P. Article 927) and in the facts or evidence upon which each is based (C.C.P. Article 931). The Louisiana Supreme Court in Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (1975) stated the principles governing the peremptory exception of no cause of action at page 96:

[1,2] “The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition. The correctness of the well-pleaded allegations of fact is conceded, the issue is whether the face of the petition presents a case which legally entitles the mover to the redress sought. It is the sufficiency of the petition or motion in law which is put at issue by the exception. (Citations omitted.)
[3] “If a petition states a cause of action as to any ground or portion of the demand, the exception of no cause of action must be overruled. (Citations omitted.)
[4,5] “In considering a petition against which an exception of no cause of action has been raised, every reasonable interpretation must be accorded its language in favor of maintaining the sufficiency of the petition and affording the litigant an opportunity to present his evidence. (Citations omitted) Pleadings must be reasonably construed so as to afford litigants their day in court, to arrive at the truth and to avoid a miscarriage of justice.” (Citations omitted.)

Consistent with these provisions of liberal interpretation, we conclude that the facts pleaded may be reasonably interpreted to present a cause of action for contribution. Concededly, the third-party defendant is accused of negligence that was the sole and proximate cause of the accident, but at the same time those acts of negligence are consistent with the facts necessary to show joint negligence which would render the defendant liable for contributions as alleged in paragraph 2 and as prayed for in the prayer in event of recovery against third-party plaintiffs. In addition to the allegation that the Department failed to maintain a center line in a narrow highway, failed to maintain the road and the shoulders adequately, and failed to repair the roadway after receiving requests for repairs to the potholes in the roadway, the petition further alleged the facts of the accident originally sued upon alleging that in his driving efforts the driver attempted to get to the right side of the roadway where he hit some potholes located on the roadway and on the shoulder, causing him to lose control and skid into a collision with the plaintiff’s vehicle. We further point out that the third-party petition is coupled in the same pleading with the answer to the original petition, and, although it does not contain a conclu-sory allegation that the negligence of the parties was joint and several, nevertheless it contains the facts sufficient to afford a reasonable interpretation of joint negligence. To the contention that there is no precise allegation of joint and several liability, we say that the court then should have followed the requirements of C.C.P. Article 934 and permitted amendment to furnish the additional allegations. See Aetna Finance Company v. Antoine, 343 So.2d 1195 (La.App.4th Cir. 1977).

In this case there are two other equally cogent reasons why the exception should not have been maintained. First, Travelers’ claim against the Department was not only for contribution under its third-party petition but also under an assignment of the claims of the original plaintiff, Fuller, with whom Travelers compromised. While the supplemental and amending petition which joined the Department as a defendant may have been subject to attack on the grounds of prescription, it certainly does set out a cause of action against the Department, and it should be noted that in that prayer that the liability of the Department was sought jointly, severally and in solido with the liability of the other defendants. See Haskins v. Clary, 346 So.2d 193 (La. 1977).

The second consideration is that under the procedural situation as it existed, we would be called upon to ignore the stipulation at the beginning of trial that there was a compromise and assignment and that trial was to begin on the basis of the liability of the Department to Travelers’ claim for contribution. We conclude that the stipulation would constitute an amendment to plaintiff’s third-party petition and that Travelers was then proceeding not only under its third-party petition but also the allegations of plaintiff Fuller’s petition and supplemental and amended petition and thus all of these petitions should be considered. See for example North Central Utilities, Inc. v. Sarver, 323 So.2d 173 (La.App.3rd Cir. 1975). There was no objection to any of the evidence produced on the basis that it was not relevant to the issue of contribution.

Indeed, it appears to us that the evidence failed to show any negligence on the Department and that it was the lack of proof rather than the lack of allegations that led to the maintaining of the exception. The trial judge should have rendered judgment in favor of the defendant on the merits, not upon the exception. See for example McManus v. Community Credit Company of Louisiana, 212 So.2d 520 (La.App.1st Cir. 1968).

For the reasons above recited, we annul and vacate the judgment maintaining the exception of no cause of action. We now proceed to a consideration of the merits.

The uncontested facts of the case have been set out above. The issues to be decided: was the Department of Transportation negligent in its maintenance of the shoulders of the River Road and were the shoulders in an unsafe condition?

It was contended by the defendant driver, Scott, that he lost control of his tractor immediately after coming out of the curve. At this time his tractor left the roadway and his right wheels entered the shoulder where ruts and/or holes in the shoulder caused him to lose control.

The Department of Transportation is not the guarantor of safety of travelers on state highways, or an insurer against all injuries or damage which may result from defects in the highways. “The duty of Department is only to see that state highways are reasonably safe for persons exercising ordinary care and reasonable prudence. It is liable for damages only when the evidence shows (1) that the hazardous condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver, and(2) that the department had notice, either actual or constructive, of the existence of the defect and failed within a reasonable time to correct it.” Doucet v. State of Louisiana, Department of Highways, 309 So.2d 382 (La.App.3rd Cir. 1975); writ refused, 312 So.2d 340 (La.); Mistich v. Matthaei, 277 So.2d 239 (La.App.4th Cir. 1973); St. Paul v. Mackenroth, 246 La. 425, 165 So.2d 273 (1964).

The River Road in this area is a few inches wider than 20 feet. The roadway is black-top and the shoulder is made of clam shells. There were several photographs of the roadway and shoulder in evidence. The photographs showed that the roadway had no holes in it, but numerous holes could be seen along the shoulder. The holes were full of water at the time so no depth could be seen.

Four state employees testified as to the maintenance and condition of the road. Mr. Childs produced the work reports on this section of road, which consisted of over one and one-half miles of roadway. Mr. Dornblatt was classified as an expert in civil, structural and highway engineering. All of the state employees testified that from the pictures it appeared that the shoulders needed grading. The problem in this section of road is that it is heavily traveled by large tractor trailers, which often ride the edge of the road with their dual rear wheels on the shoulder, thereby kicking up the shells and causing rutting and holes.

All testified that it was not uncommon for the condition to happen overnight. The two main factors were how many tractors rode on the shoulder and the weather conditions, that rainy weather hastens the occurrence. To remedy this situation, blad-ing and leveling is used, sometimes the holes are filled with shells.

Mr. Childs produced the work reports that showed that this section of road was graded on numerous occasions during 1973, but not during the three months prior to the accident. However, the reports show that holes along this section of road were filled on at least twenty different occasions during these three months.

The records failed to show any complaints in this section of road for at least 15 months prior to the accident. The only testimony was from a. neighbor who testified that his wife had called and complained about 2 years prior.

From the evidence presented we conclude that the Department was not negligent in failing to maintain the road and that it had no notice, either actual or constructive, that a hazardous condition existed at the time of the accident. The Department knew that this section of road required continual maintenance. Their work record reflects that they provided this continued upkeep. Ruts and holes can occur overnight in highway shoulders during rainy weather and it is too great a burden to put on the Department to require they be repaired immediately, particularly when there is no showing as to the depth and the necessity of urgent repairs. See Moorman v. State, Dept. of Highways, 384 So.2d 586 (La.App.4th Cir. 1980).

Accordingly, we set aside the judgment of the trial court maintaining the exception of no cause of action. Instead, we render judgment on the merits in favor of the third-party defendant, Louisiana Department of Transportation and Development, and against the third-party plaintiff, Travelers Insurance Company, dismissing the Department from the suit. Judgment set aside and recast.

JUDGMENT SET ASIDE AND RECAST.