author: COVINGTON, Judge.

text:
    Everette P. HEBERT v. AETNA CASUALTY AND SURETY COMPANY et al.
    No. 14137.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.

      Joseph L. Waitz, Houma, for plaintiff and appellee.
    J. Mark Graham, Houma, for defendant and appellant Aetna Cas. & Sur. Co.
    Henry D. McNamara, Jr., Metairie, for defendant Diamond M Co.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

The present action is a sequel to the proceedings entitled “Everette P. Hebert v. Diamond M Company, et al.”, number 54,-202 on the docket of the Thirty-Second Judicial District Court, Parish of Terrebonne, State of Louisiana, and reported in this Court as Hebert v. Diamond M Company, 385 So.2d 410 (La.App. 1 Cir. 1980), writs denied, 390 So.2d 203 (La.1980).

In the proceedings against Diamond M, Hebert sought to collect for damages sustained by him as a seaman employed by Dowell, Inc., a division of Dow Chemical Company, when he was dropped as he was being lifted from a crew boat, the M/V MASTER JODY, in a personnel carrier which was suspended from a crane located aboard Diamond M’s tender barge, S-25, which served as an Exxon fixed platform in the Gulf of Mexico, off the coast of the State of Louisiana. Aetna Casualty and Surety Company, as Dowell’s insurer, intervened for maintenance and cure benefits and medical expenses it had to pay to the plaintiff as a result of the injury.

Prior to trial in the damage action against Diamond M, stipulations were made regarding the intervenor’s claim whereby the parties recognized Aetna’s right to reimbursement of maintenance benefits paid to plaintiff in the sum of $2,984.00, and for medical expenses in the sum of $10,613.40, which sums were to be added to any award to plaintiff, but were to be paid directly to Aetna. The matter then came on for jury trial on January 29, 1979. During trial, Diamond M admitted liability and that plaintiff was a seaman.

The jury rendered a verdict in plaintiff’s favor against Diamond M in the sum of $470,000.00 for loss of future earnings, $104,000.00 for pain, suffering, mental anguish and disability, and $76,000.00 for future medical expenses, totalling $650,000.00 The jury also returned a general verdict in favor of the plaintiff in a like amount.

On March 8, 1979, the trial court, with written reasons for judgment, rendered and signed judgment in favor of Hebert against Diamond M in the sum of $1,046,000.00, together with legal interest from date of judicial demand and costs. Judgment was also entered in favor of intervenor, Aetna, in accordance with the pre-trial stipulations.

Diamond M appealed that portion of the judgment against it in favor of plaintiff; and paid that portion of the judgment against it in favor of Aetna, obtaining a satisfaction of judgment and release therefor. The judgment in favor of Everette P. Hebert and against Diamond M Company was modified on appeal by this Court.

After the trial, Aetna ceased paying maintenance and cure benefits to Hebert, giving rise to the filing of the instant proceedings on June 30, 1979. By his action, plaintiff seeks maintenance and cure and medical expenses, together with damages and attorney’s fees against Aetna, Dowell and Diamond M, jointly and solidarily, along with damages for failure to pay.

Aetna answered plaintiff’s petition denying any obligation to the plaintiff; and filed a third-party demand seeking, alternatively, indemnity or contribution from Diamond M, which responded to the plaintiff’s petition and the third-party demand of Aet-na.

The matter was set for trial on August 30, 1979, and was tried on that date. At the trial, on motion of plaintiff, his demand against Dowell was non-suited. After trial, the trial court rendered judgment, orally assigning reasons therefore, ordering Aetna to resume payment of benefits to Hebert until the judgment in the Hebert-Diamond M case was satisfied, and reserving to Aet-na the right to claim reimbursement from Diamond M. Penalties and attorney’s fees were denied. Judgment was signed on November 27, 1979. Plaintiff moved the court for a new trial; and subsequently, Aetna also moved for a new trial. A hearing was held on those motions, resulting in the court’s ordering a new trial as to all parties and all claims.

The new trial was set for May 1, 1980. Aetna then filed a reconventional demand seeking, in the alternative, judgment against the plaintiff in a like amount for any judgment which was rendered in the instant proceedings against it in favor of plaintiff, with such judgment to be recoverable by Aetna only from proceeds received by plaintiff from Diamond M as a result of the initial proceedings filed against that defendant. Answer to the re-conventional demand was filed and trial was held on that claim, as well as on the other claims.

After this trial, the matter was taken under advisement; and, on July 30, 1980, judgment was signed, with written reasons therefor, awarding benefits, damages, and attorney’s fees in favor of Hebert against Aetna. Aetna has taken an appeal from that judgment, and Hebert has answered it, seeking an increase in the award. We affirm.

First, appellant has a procedural objection that the plaintiff has no cause of action directly against his employer’s insurer inasmuch as he has neither alleged nor proved that the insurance policy was issued or delivered in the State of Louisiana, or that the accident or injury occurred in this State as required by LSA-R.S. 22:655.

This objection is more properly an exception of no right of action. Vincent v. Penrod Drilling Co., 372 So.2d 807 (La.App. 3 Cir. 1979), writ denied, 375 So.2d 646 (La.1979). However, by whatever characterization, it is without merit. This is not only a suit against Aetna as Hebert’s employer’s insurer but as tortfeasor, so the requisites of the direct action statute need not be met. Nevertheless, they were met; the record clearly establishes that the present action is against the insurer for an “accident,” or act producing the harm, to Hebert which occurred within this State. Sprow v. Hartford Insurance Company, 594 F.2d 412 (C.A. 5 Cir. 1979); Cambre v. St. Paul Fire and Marine Insurance Company, 331 So.2d 585 (La.App. 1 Cir. 1976), writ denied, 334 So.2d 434 (La.1976). The act producing the harm, or the accident, in the case at bar is alleged to be the capricious failure of the employer and its insurer to provide the seaman with maintenance and cure. Cortes v. Baltimore Insular Line, 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368 (1932); Picou v. American Offshore Fleet, Inc., 576 F.2d 585 (C.A. 5 Cir. 1978). The alleged act took place in Louisiana where the claim was administered and which was the home base of the insurer’s representative who refused to continue paying maintenance and cure to Hebert. There is also a claim for damages for aggravation of Hebert’s mental condition which could only have occurred in Louisiana. This claim for capricious failure to pay maintenance is a distinct claim from the claim for injuries against Diamond M for its tort on the high seas. See Cortes v. Baltimore Insular Line, supra. The seaman’s right to maintenance and cure is predicated. upon the maritime employment contract and does not depend upon the seaman being able to establish fault or a tor-tious activity. Aguilar v. Standard Oil Co. of New Jersey, 318 U.S. 724, 63 S.Ct. 930, 87 L.Ed. 1107 (1943).

We hold that the trial court’s overruling of Aetna’s exception of no cause of action is correct. There is no merit in the appellant’s contention that it can not be sued directly under the direct action statute. LSA-R.S. 22:655.

The plaintiff claims in the instant suit that his employer has failed to continue paying him the maintenance and cure to which he is entitled; that although his employer did pay him some maintenance and cure, it ceased such payments after the trial of his suit against the initial tortfeasor, Diamond M, despite the fact that hechas not yet recovered an enforceable judgment from the tortfeasor.

On this question, Aetna asserts that to permit the employee to recover from his employer (and insurer) once he has sued the tortfeasor is to allow him a “double recovery.”

We find that the nature of the employer’s obligation to pay maintenance and cure militates against Aetna’s position. For a general discussion of maintenance and cure, see Annot., Supreme Court’s Views As To A Seaman’s Right, Under Maritime Law, to Maintenance and Cure, 43 L.Ed.2d 912.

The obligation of a shipowner (employer) to provide his seaman maintenance and cure is “[ajmong the most pervasive incidents of the responsibility anciently imposed upon a shipowner.... ” Aguilar v. Standard Oil Co. of New Jersey, supra, 70 Am.Jur.2d “Shipping”, § 220, p. 427.

The duty of the shipowner (employer) to pay the seaman maintenance and cure derives historically from the “unique hazards” of the sailor’s work; it is imposed by law definitely on the shipowner, irrespective of fault (short of culpable misconduct), arising from the relationship of shipowner and seaman, and is calculated to alleviate the injured or ill seaman’s want and suffering during convalescence until he reaches maximum care. Vella v. Ford Motor Company, 421 U.S. 1, 95 S.Ct. 1381, 43 L.Ed.2d 682 (1975); Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962); Aguilar v. Standard Oil Co. of New Jersey, supra; Cortes v. Baltimore Insular Line, supra; Sims v. Marine Catering Service, Inc., 217 F.Supp. 511 (D.La.1963).

Maintenance and cure benefits are predicated on a seaman’s maritime employment contract, being consistently recognized as an implied provision in contracts with marine employment. Aguilar v. Standard Oil Co. of New Jersey, supra. Thus, the payment of maintenance and cure is a contractual obligation which the employer must perform, even though it is a special damage the seaman suffered from a tor-tious act. The cause of the responsibility is the contract; the tort is the remote occasion. See The Federal No. 2, 21 F.2d 313 (C.A. 2 Cir. 1927); see also Jones v. Waterman S.S. Corporation, 155 F.2d 992 (C.A. 3 Cir. 1946).

It was said by the Supreme Court in Pacific S.S. Co. v. Peterson, 278 U.S. 130, 49 S.Ct. 75, 73 L.Ed. 220 (1928):

“[T]he right to maintenance, cure and wages, implied in law as a contractual obligation arising out of the nature of the employment, is independent of the right to indemnity or compensatory damages for an injury caused by negligence; and these two rights are consistent and cumulative.”

The appellant does not contend that Mr. Hebert has reached maximum medical recovery or that he should be denied maintenance benefits because of culpable misconduct; it is Aetna’s position that it had a right to cease payment of maintenance and cure to the plaintiff because judgment in his favor had been rendered by the trial court for such benefits from the tortfeasor. In this connection, we find Aetna’s reliance upon Richardson v. St. Charles-St. John the Baptist Bridge & Ferry Authority, 284 F.Supp. 709 (E.D.La.1968), misplaced. The Richardson case extends recovery to the seaman even though he did not suffer any actual loss of berth and sustenance (room and board) as a result of his injury, and makes the tortfeasor ultimately liable for maintenance benefits.

The adequate protection of a seaman requires more than a possibility that he may receive maintenance benefits at an indefinite future time from a tortfeasor who may be proven liable for injuries to him. The concept of maintenance and cure contemplates that the injured or ill seaman will promptly receive such benefits at a time contemporaneous to the injury or illness. A shipowner (employer) is, therefore, not allowed to withhold maintenance benefits in the expectation that the seaman will eventually recover such benefits from the tort-feasor. Rather, the employer is to pay the seaman promptly and contemporaneously in the hope that it (the employer) may at some future time be reimbursed for such payments from the tortfeasor. In other words, the employer has a right over against the tortfeasor so that the ultimate liability for maintenance and cure is placed on the tort-feasor who caused the seaman’s injury. See Richardson v. St. Charles-St. John the Baptist Bridge & Ferry Authority, supra.

We believe that the rule which allows the shipowner to be relieved of his contractual duty of paying maintenance and cure when a tortfeasor hás caused the injury was never intended, nor can it be construed, to visit hardship upon the seaman. The seaman has two independent causes of action, one against the tortfeasor and one against the shipowner. If he should decide not to pursue a claim against the tortfeasor, he can, unquestionably, continue receiving maintenance and cure benefits from the shipowner, thus relegating the shipowner to an action against the tortfeasor, seeking reimbursement of those benefits paid. It is not the law that if the employee should undertake to make a damage claim against the tortfeasor, the shipowner escapes from its obligation of maintenance and cure as soon as judgment is rendered against the tort-feasor (without regard to the possibility that such a judgment may be reversed on appeal, or be uncollectable).

The appellant also contends that its decision to terminate maintenance benefits was justified because Hebert had been found to be the “borrowed employee” of Diamond M. That a seaman is a borrowed employee of one employer does not mean that he thereby ceases to be his immediate or prime employer’s employee. Spinks v. Chevron Oil Company, 507 F.2d 216 (C.A. 5 Cir. 1975). Again, for the reasons stated above, a seaman is not put in the position of having to wait for a determination of who is the borrowing employer ultimately obligated to pay maintenance benefits before he is entitled to receive such benefits. His prime contractor, in this case Dowell (and its insurer), must make prompt contemporaneous payment of such benefits to the seaman; it cannot delay for a judicial determination of the borrowing employer’s liability.

This decision in no way suggests “double recovery;” it is clear that a seaman can not recover twice for the same elements of damage. See Vickers v. Tumey, 290 F.2d 426 (C.A. 5 Cir. 1961); Richardson v. St. Charles-St. John the Baptist Bridge & Ferry Authority, supra.

We thus find that the trial court correctly adjudged Aetna to pay maintenance and cure benefits from January 29, 1979, until the judgment in favor of plaintiff in Hebert v. Diamond M Company becomes executory and is satisfied.

The next issue presented for our decision in this case is whether the trial court should have awarded medical expenses of $10,-602.16, maintenance and cure of $25,000.00, and attorney’s fees of $7,500.00 for bringing this action. The Court held in Cortes v. Baltimore Insular Line, supra, that “[i]f the failure to give maintenance or cure has caused or aggravated an illness, the seaman has his right of action for the injury thus done to him; the recovery in such circumstances including not only necessary' expenses, but also compensation for the hurt.”

On this question, the trial judge stated in his written reasons:

“The court granted both applications for a new trial and said new trial was held on May 1,1980, was taken under advisement pending submission of briefs, and is now ready for decision.
“The court has very carefully examined the record, and in particular the exhibits filed in the record in support of the medical claim by plaintiff, and has concluded that the figure of $10,602.16 in the judgment rendered on August 30, 1979 is correct. The court itemizes from the record those figures which the record supports and the source of those medical expenses as follows:
“OR Surgical & Medical Equipment $ 505.39
Terrebonne General Hospital 1,056.20
Physical Therapy & Rehabilitation Center 493.00
Broadmoor Drug Store 572.57
Thomas A. Moore, M.D. 7,975.00
TOTAL $10,602.16
“The record does not support any other finding of medical expenses except those itemized above. Therefore, the court is satisfied that the judgment awarding Mr. Hebert a judgment for $10,602.16 against Aetna Casualty & Surety Company is fully and accurately supported by the record. The court reaffirms and will render a judgment against Aetna Casualty & Surety Company awarding that sum of money to Mr. Hebert as having been proven to be due and owing him by a preponderance of the evidence and to the satisfaction of the court.
“After reconsidering its original position concerning damages, penalties and attorney fees, the court is now satisfied that it was in error when it refused to award damages, penalties and attorney fees to the plaintiff because of Aetna Casualty & Surety Company’s refusal to pay the maintenance and cure benefits as required by law. The sum of money involved may be inconsequential to an insurance company customarily dealing in cases of this kind, but to an average working man faced with bills as large as is involved in this controversy, they are a serious obligation of great magnitude. Furthermore, because of the mental condition of Mr. Hebert, the continued demand of his creditors for payment of these bills is obviously a source of aggravation, mental worry and anguish, and has contributed to his mental illness to some degree. Dr. Thomas Moore, the psychiatrist testifying in this case, contends that the failure to pay and discharge these medical obligations and continued dunning of Mr. Hebert by his creditors has significantly contributed to the deterioration of his mental health and has aggravated the already existing mental problems suffered by Mr. Hebert. (See transcript of testimony at pages 40, 41, 42, 43, 64, 68, 69 and 70.) The court does not believe there is any justifiable or valid legal reason why Aetna has not paid these bills. Under the law, as insurer of his employer, Aetna had an obligation to pay these bills and its failure to do so can only be characterized as unreasonable, arbitrary, willful, wanton and capricious. For these reasons the court is of the opinion that damages, penalties and attorney fees are not only warranted and justified but are also legally required in this instance. The court understands the law in cases of this kind to be, ‘If defendant’s refusal to pay maintenance and cure stems from a wanton and intentional disregard of the legal rights of a seaman, the latter would be entitled to exemplary damages.’ There has been in this instance such a disregard of the legal rights of Mr. Hebert entitling him to damages, penalties and attorney fees.
“The court feels that damages and penalties in this instance should be fixed at the sum of $25,000.00, and that the attorney fees incurred by Mr. Hebert in having to file a lawsuit to force Aetna Casualty & Surety Company to pay the medical bills due and to pay maintenance and cure benefits should be fixed at the sum of $7,500.00.”

Vaughan v. Atkinson, supra, established that the shipowner-employer has an affirmative duty to investigate the claim for maintenance benefits with reasonable diligence and to pay such benefits when due. The Vaughan case further held that where this duty is neglected so as to amount to recalcitrance and indifference to the plight of the seaman-employee, the courts will allow his attorney’s fees in a successful suit for recovery of the amounts so owed. See also Roberts v. S. S. Argentina, 359 F.2d 430 (C.A. 2 Cir. 1966); Smith v. Dale Hart, Inc., 313 F.Supp. 1164 (W.D.La.1970); Hudspeth v. Atlantic & Gulf Stevedores, Inc., 266 F.Supp. 937 (E.D.La.1967).

Since we find Aetna’s failure to pay maintenance benefits “arbitrary and unreasonable,” we affirm the trial court’s award of damages in the amount of $25,-000.00 for refusal to pay maintenance. We also find that the record supports the trial court’s fixing of the medical expenses in the total amount of $10,602.16. In addition, we agree with the trial court’s award of attorney’s fees in the amount of $7,500.00, because we find Aetna recalcitrant and indifferent to its obligation to pay this seaman maintenance and cure, and decline to increase ,the award for services rendered on appeal. We note that additional attorney’s fees for services rendered on appeal are not warranted where the plaintiff has sought an increase in the lower court’s award. The plaintiff is not only protecting his rights on appeal, but he has sought additional relief which was denied at the trial level and is denied on appeal. Riche v. Krestview Mobile Homes, Inc., 375 So.2d 133 (La.App. 3 Cir. 1979).

Finally, appellant contends that it was an abuse of the trial court’s discretion in awarding pre-judgment interest to the plaintiff, and urges that pre-judgment interest, as a general rule, is not awarded in cases such as the one at bar. While the courts have consistently held that pre-judgment interest is not to be awarded in claims made under the Jones Act (Barrios v. Louisiana Construction Materials Company, 465 F.2d 1157, C.A. 5 Cir. 1972), in cases brought under the general maritime law, the trial court has discretion to award such interest. See Canova v. Travelers Insurance Company, 406 F.2d 410 (C.A. 5 Cir. 1969), writ denied, 396 U.S. 832, 90 S.Ct. 88, 24 L.Ed.2d 84 (1969); Hebert v. Diamond M Company, supra; Benoit v. Fireman’s Fund Insurance Company, 361 So.2d 1332 (La. App. 3 Cir. 1978). The record reflects no abuse of this discretion.

Accordingly, for the reasons assigned, we affirm the judgment appealed at appellant’s costs.

AFFIRMED.


source: Caselaw Access Project

author: PONDER, Judge.

license: Public Domain

text:
    The FIREPLACE SHOP, INC. and Willard B. Dugas v. The FIREPLACE SHOP OF LAFAYETTE, INC. and Dannie Phillip Garrett, Jr.
    No. 14188.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.

      Randall G. Wells, and James D. Thomas, II, Baton Rouge, for plaintiff-appellee, The Fireplace Shop, Inc. and Willard B. Dugas.
    John F. McKay, Baton Rouge, for defendant-appellant, The Fireplace Shop of Lafayette, Inc., and Dannie Phillip Garrett, Jr.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Defendant appealed from a judgment declaring plaintiff, Willard B. Dugas, the owner of 50% of the capital stock of the Fireplace Shop of Lafayette, Inc. and placing said corporation in receivership.

The issues are: ownership of the Fireplace Shop of Lafayette, Inc., necessity for placing said corporation in receivership and denial of a motion for a new trial.

We affirm.

Plaintiff, Willard B. Dugas, and defendant, Phillip Garrett, are co-owners of the Fireplace Shop of Baton Rouge. Dugas, an original incorporator of FPS of Baton Rouge, hired Garrett, his brother-in-law, as general office manager in 1973 and offered to let him buy a 40% interest in the corporation. In 1976, the two entered into a pre-incorporation agreement to expand operations in Lafayette.

Because of a disagreement over owner percentage, the agreement was never signed. Nevertheless, the two proceeded with plans for the Lafayette corporation. A check for $3,000.00 from the Fireplace Shop of B. R. to the Fireplace Shop of Lafayette provided the corporation’s initial capitalization. Dugas made several trips to Lafayette contacting builders and suppliers, sold several fireplaces on behalf of the planned corporation in Lafayette, and was instrumental in obtaining a warehouse for the business. In the meantime, defendant, without plaintiff’s knowledge, incorporated the Fireplace Shop of Lafayette and had issued 100% of the stock to himself. Unaware of defendant’s actions, plaintiff continued to play an active part in the corporation. He directed management from Baton Rouge, personally guaranteed both a $20,-000.00 loan for the new corporation’s working capital and an account with its major supplier. In 1976 corporate tax form signed by plaintiff and defendant on advice of their certified public accountant designated each as a 50% owner of the corporation. In March, 1977, plaintiff, still unaware of defendant’s actions, entered into an agreement with defendant whereby Fireplace Shop of Lafayette stock would be issued 37V2% to plaintiff, 37V2% to defendant and 25% to a third party. For various reasons, the stock was never issued. The management of the Lafayette store gradually passed to defendant with plaintiff handling Baton Rouge and a New Orleans branch that the two had also incorporated on a fifty-fifty basis. In 1979 relations between the plaintiff and defendant became strained and for the first time defendant informed plaintiff that he had no legal interest in the Lafayette corporation. Plaintiff then filed suit praying to be named 50% owner of the Fireplace Shop of Lafayette and requesting said corporation be put into receivership because of defendant’s ultra vires acts and fraud.

Defendant argues plaintiff failed to prove his 50% ownership interest in the Fireplace Shop of Lafayette. Although a stock certificate is prima facie evidence of corporate ownership, it is to be distinguished from actual ownership which may be determined from all the facts and circumstances of a case. Succession of McGuire, 151 La. 514, 92 So. 40 (La. 1922); Volker v. Crescent City Wholesale Florist, 17 So.2d 372 (La.App. Orleans Appeal, 1944); Finn v. Ponsaa, 308 So.2d 352 (La. App. 4th Cir. 1975), writ refused 313 So.2d 238. The trial court heard twenty-six witnesses over four days of hearing. Disinterested witnesses, including employees of the corporation and business associates, testified defendant stated he and plaintiff were fifty-fifty owners of the business. Most employees felt it was common knowledge that the Fireplace Shop of Lafayette was owned equally. Although there was other conflicting testimony concerning the plaintiff’s participation in the incorporation and management of the corporation, we find no manifest error in the court’s determination that, from its inception, plaintiff considered himself an equal owner of the corporation with defendant and so conducted himself.

Defendant next claims the court had no legal basis for putting the Fireplace Shop of Lafayette into receivership. The evidence reveals defendant made full use of plaintiff’s expertise, time and credit for the benefit of the Fireplace Shop of Lafayette for three years while concealing plaintiff’s exclusion from corporation ownership. We find defendant’s actions constituted gross and persistent ultra vires acts in violation of plaintiff’s rights. LSA-R.S. 12:151, supra. Kerlin v. Bryceland Lumber Co., 134 La. 463, 64 So. 289 (La. 1914); In re Receivership of Webre-Steib Co., 136 La. 272, 67 So. 1 (La. 1914). we find no error in the court’s appointment of a receiver.

Defendant last claims the trial court erred denying his motion for a new trial. Relying on C.C.P. Art. 1972 he asserts the discovery after trial of a promissory note from the Fireplace Shop of Lafayette to Fireplace Shop of Baton Rouge, personally guaranteed by himself proves the $3,000.00 advanced by Fireplace Shop of Baton Rouge was a loan. We believe the actual nature of the $3,000.00 advance, which was subject to much heated and conflicting testimony, was but one of many factors considered by the trial court. Even conceding that the $3,000.00 was a loan, we find the preponderance of the evidence still supports plaintiff’s claim to a 50% ownership interest in the corporation.

For the above reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.

      . LSA-R.S. 12:151 in part provides:
      “A. The court may, after trial, appoint a receiver to take charge of the corporation’s property when it is made to appear, in a proceeding instituted against the corporation:
      “(1) By any shareholder or creditor, that the directors or officers of the corporation are jeopardizing the rights of its shareholders or creditors by grossly mismanaging the business, or by committing gross and persistent ultra vires acts, or by wasting, misusing or misapplying the assets of the corporation; or
      “(2) By any shareholder or creditor, that the corporation’s property has been abandoned, or that, by failure of the shareholders to elect directors, or the failure of the directors or officers to serve, there is no one authorized to take charge of or conduct its affairs; or
      “(3) By any creditor, that the corporation is insolvent, or such creditor’s claim has been reduced to judgment, on which execution has been issued and returned ‘nulla bona’; or
      “(4) By any creditor, that property of the corporation has been seized under judicial process by fraud or collusion between the corporation, its directors, officers or shareholders, and any creditor; or
      “(5) By any shareholder, that a majority of the shareholders are violating the rights of minority shareholders and endangering their interests; or
      “(6) By a shareholder or shareholders, severally or jointly, who have been registered owners for a period of not less than six months of not less than twenty per cent of the entire outstanding shares of the corporation, that either of the grounds for involuntary dissolution set forth in R.S. 12:143 (A) (4) and (5) exists.

      . C.C.P. Art. 1972:
      “A new trial shall be granted, upon contradictory motion of any party, in the following cases:
      “(1) Where the judgment appears clearly contrary to the law and the evidence;
      “(2) Where the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial; or
      “(3) In jury cases, as provided in Article 1814.”


author: DOUCET, Judge.

text:
    David L. WILKINSON, etc., Plaintiff-Appellant, v. HARTFORD ACCIDENT & INDEMNITY CO., et al., Defendants-Appellees.
    No. 8006.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Rehearing Denied July 21, 1981.

    Smith, Ford & Clark, Chris Smith, III, Aleesville, for plaintiff-appellant-appellee.
    Gist, Methvin, Hughes & Munsterman, David A. Hughes, Alexandria, for defendant-appellee-appellant.
    Before FORET, SWIFT and DOUCET, JJ.

       Foret, J., voted to grant a rehearing.

   DOUCET, Judge.

Plaintiff, David L. Wilkinson, brought this suit individually and on behalf of his minor son, David Len Wilkinson, to recover damages for personal injuries that David sustained when he ran through a glass panel at Glenmora High School in Rapides Parish, Louisiana. Defendants are Coach Joe Rivers, David’s physical education instructor, the Rapides Parish School Board, and the school board’s liability insurer, Hartford Accident & Indemnity Company. Following a trial, judgment was rendered in favor of the defendants, dismissing plaintiff’s suit at his cost. From that judgment, plaintiff appeals.

The circumstances leading up to the accident do not appear to be seriously disputed. On November 8,1978, David Len Wilkinson, a 12 year old seventh grader, attended a boy’s physical education class conducted by Coach Joe Rivers in the Glenmora High School gymnasium. On that day, the boys were engaged in running timed relay races on the east half of the basketball court. At the same time, a girl’s physical education class was being conducted on the west half of the court.

The class of approximately 30 boys was divided into five or six relay teams. Two teams competed at a time, while the remaining teams observed and waited for their turn. Between races, David and the members of his team went into a foyer adjacent to the basketball court to get a drink of water. While in the fpyer, they decided to conduct a trial race to determine their positions in the next race. It was decided that David and another boy would race from the water fountain to the end of a short hallway and return.

When the boys reached the end of the hallway, David was behind. He attempted to make his turnaround pivot by pushing off of a large glass panel. As his weight came to bear on the glass, it broke and he fell through to the school grounds. Both of his arms and one of his knees were seriously lacerated.

Plaintiff brought this suit against the defendants, alleging that his son’s injuries resulted from the negligence of the instructor in failing to properly supervise his students and the negligence of the school board in maintaining a dangerous condition in the gymnasium. The trial judge rejected plaintiff’s claim that Coach Rivers was negligent, and although he agreed that the school board was negligent, he found that plaintiff’s claim against it was barred by his son’s contributory negligence.

On appeal, plaintiff argues that the trial court erred in (1) finding that Coach Rivers was not guilty of negligence which was a proximate cause of his son’s injuries, (2) finding that his claim against the school board was barred by his son’s contributory negligence, and (3) failing to award damages for his son’s injuries.

NEGLIGENCE OF COACH RIVERS

The duty owed by teachers to their students was set out in the following language from this court’s opinion in Prier v. Horace Mann Insurance Company, 351 So.2d 265 (La.App. 3rd Cir. 1977), writ denied, 352 So.2d 1042 and 352 So.2d 1045 (La.1977):

“Our jurisprudence is settled that a school board is not the insurer of the lives or safety of children. School teachers charged with the duty of superintending children in the school must exercise reasonable supervision over them, commensurate with the age of the children and the attendant circumstances. A greater degree of care must be exercised if the student is required to use or to come in contact with an inherently dangerous object, or to engage in an activity where it is reasonably foreseeable that an accident or injury may occur. The teacher is not liable in damages unless it is shown that he or she, by exercising the degree of supervision required by the circumstances, might have prevented the act which caused the damage, and did not do so. It also is essential to recovery that there be proof of negligence in failing to provide the required supervision and proof of a causal connection between the lack of supervision and the accident. Whitfield v. East Baton Rouge Parish School Board, 43 So.2d 47 (La.App. 1st Cir. 1949); Nash v. Rapides Parish School Board, 188 So.2d 508 (La.App. 3rd Cir. 1966); Station v. Travelers Insurance Company, 292 So.2d 289 (La.App. 1st cir. 1974); Simmons v. Beauregard Parish School Board, 315 So.2d 883 (La.App. 3rd Cir. 1975); Partin v. Vernon Parish School Board, 343 So.2d 417 (La.App. 3rd Cir. 1977); Richard v. St. Landry Parish School Board, 344 So.2d 1116 (La.App. 3rd Cir. 1977).”

In finding that Coach Rivers had fulfilled that duty, the trial judge summarized the relevant evidence as follows:

“The testimony given by Coach Rivers and the students was generally in accord. The coach had given the rules which the boys were to follow during gym on the first day of class. All the boys admitted this, as well as the fact that when they were allowed to go to the water fountain, it was for a drink and they were to return immediately. The activity of the day, running relay races, required the participation and attention of the coach since he was starting the races and timing them. The boys were twelve (12) years old and therefore old enough to be expected to follow simple rules. All the boys admitted at trial that if they were seen outside the gymnasium doing anything other than drinking water, that they would be subject to discipline and they testified that they even kept a ‘lookout’ for the coach to avoid being caught. The coach’s view of the foyer was through two openings with a wall separating them. As the boys discussed and set up the practice race, they consciously stayed behind the wall, blocking the coach’s view. Coach Joe Rivers’ first knowledge of the accident was when the plaintiff yelled as he went through the glass pane. Coach Rivers came to his assistance and rendered first aid.”

We find the above to be an accurate summary of the evidence in the record, and we agree that under those circumstances, Coach Rivers was not negligent. A teacher is not required to have each child under constant and unremitting scrutiny. Partin v. Vernon Parish School Board, supra. In view of the fact that Coach Rivers’ ability to observe the children was impaired by his necessary participation in the day’s activity, and the fact that he had imposed safety rules and enforced them with disciplinary action when necessary, we believe that he had fulfilled his duty toward plaintiff’s son.

CONTRIBUTORY NEGLIGENCE

It was established at the trial that when the Glenmora High School gymnasium was originally constructed in 1966, ordinary glass was installed in the windows and light openings. Safety glass was later substituted for window panes and glass panels that were accidentally broken, but those that remained intact were not replaced. Several years prior to the accident giving rise to this suit, a visiting coach walked through an identical glass panel at the opposite end of the foyer. The broken panel was replaced with safety glass, but the panel that David later fell through was not changed.

The trial court concluded that the school board was negligent in failing to replace the glass panel with safety glass, despite the obvious danger that it presented. We find no error in that conclusion. It is well settled that a school board is liable if it has actual or constructive knowledge of a condition that is unreasonably hazardous to the children under its supervision. Ardoin v. Evangeline Parish School Board, 376 So.2d 372 (La.App. 3rd Cir. 1979); Lewis v. St. Bernard Parish School Board, 350 So.2d 1256 (La.App. 4th Cir. 1977). We also find, however, that the trial court was correct in concluding that plaintiff’s claim against the school board is barred by his son’s contributory negligence.

Although a twelve year old child is not held to the same degree of care as an adult, he may nevertheless be found guilty of contributory negligence if he fails to exercise the care expected of a child of his age, intelligence and experience. Plauche v. Consolidated Companies, 235 La. 692, 105 So.2d 269 (1958); Gremillion v. State Farm Mutual Insurance Company, 331 So.2d 130 (La.App. 3rd Cir. 1976); Simmons v. Beauregard Parish School Board, 315 So.2d 883 (La.App. 3rd Cir. 1975), writ denied, 320 So.2d 207 (La.1975). The trial judge found David Len Wilkinson to be a boy of normal intelligence and maturity for his age group. The record clearly supports that finding.

The evidence also supports the trial court’s conclusion that David was negligent under the particular circumstances of this case. David candidly admitted that Coach Rivers had prohibited horseplay in the foyer, and he testified that he thought this rule was intended to prevent students from injuring themselves. We find, as did the trial judge, that by deliberately disobeying the safety rules and pushing off of the glass panel, he “indulged in gross disregard of his own safety in the face of known, understood, and perceived danger.” Simmons v. Beauregard Parish School Board, supra. Accordingly, we find no error in the trial court’s conclusion that plaintiff’s son was contributorily negligent.

STRICT LIABILITY

Plaintiff also argues in brief that the school board’s liability is not predicated solely on the general delictual rule of negligence under LSA-C.C. Art. 2315 but also upon the strict liability provisions of LSA-C.C. Art. 2317 as explained in Loescher v. Parr, 324 So.2d 441 (La.1975). The trial judge rejected that argument, finding that under this court’s holding in Gallien v. Commercial Union Insurance Company, 353 So.2d 1127 (La.App. 3rd Cir. 1977), writ refused, 354 So.2d 1379 (La.1978), that strict liability is not applicable to public bodies.

The reasoning of Gallien was expressly disapproved by the Louisiana Supreme Court in Jones v. City of Baton Rouge-Parish of East Baton Rouge, 388 So.2d 737 (La.1980). Under the holding in that case, it is clear that public bodies are subject to liability under LSA-C.C. Art. 2317. Baggett v. City of Bogalusa, 391 So.2d 1210 (La.App. 1st Cir. 1980). We must therefore conclude that the trial judge erred in relying on Gallien. However, he reached the correct result, since under Loescher v. Parr, supra, the custodian of a defective thing can escape liability by showing that the harm was caused by the fault of the victim.

The relationship between “victim fault” under LSA-C.C. Art. 2317 and “contributory negligence” under LSA-C.C. Art. 2315 has not been clearly enunciated in the jurisprudence. Sullivan v. Gulf States Utilities Company, 382 So.2d 184 (La.App. 1st Cir. 1980); Hebert v. United Services Automobile Association, 355 So.2d 575 (La.App. 3rd Cir. 1978), writ refused 356 So.2d 1002 (La.1978); Parker v. Hanks, 345 So.2d 194 (La.App. 3rd Cir. 1977), writ denied, 346 So.2d 224 (La.1977). However, we find compelling the following conclusions enunciated by the court in Sullivan v. Gulf States Utilities Company, supra:

“It would be ironic in this case for the defendant to be able to escape liability in a negligence action because of the plaintiff’s contributory negligence, yet be held liable under a strict liability theory when the plaintiff has been equally at fault in bringing about the harm. We think the policy reasonings underlying Loescher v. Parr point away from such an ironic result. Loescher was based on the proposition that, out of two innocent parties, the owner or guardian of a thing should pay for any damage caused by that thing. We do not have two innocent parties in this case, as the word innocent is understood in strict liability law. For purposes of this case, we think the measure of conduct necessary to achieve the appellation ‘contributory negligence’ is the same measure necessary to amount to ‘victim fault’ under Article 2317.”

For the same reasons, we conclude that plaintiff’s son was guilty not only of contributory negligence but also of “victim fault” such that the school board is not liable for his injuries under Article 2317.

Having determined that neither Coach Rivers nor the school board is liable to plaintiff, we find no error in the trial court’s failure to award damages.

For these reasons, the judgment of the trial court is affirmed. All costs of this appeal are to be paid by plaintiff.

AFFIRMED.


author: FORET, Judge.

text:
    Janet AUSTIN, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Defendants-Appellees.
    No. 8138.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Rehearing Denied July 8, 1981.
    Hannah & Cook, David S. Cook, Lafayette, for plaintiff-appellant.
    Stockwell, Sievért, Viccellio, Clements & Shaddock, Robert S. Dampf, Lake Charles, for defendant-appellant.
    Plauche, Smith, Hebert & Nieset, Reid K. Hebert, Lake Charles, for defendants-appel-lees.

      Before GUIDRY, FORET and CUTRER, JJ.
   FORET, Judge.

This is an action ex delicto in which Janet Austin (Plaintiff) seeks to recover damages for personal injuries and property loss which she sustained in a vehicular collision.

The named defendants are: Jo Ellen Cox, the driver of the other vehicle, and her automobile liability insurer, State Farm Mutual Automobile Insurance Company (State Farm); and, Lumberman’s Mutual Casualty Company (Lumberman’s), plaintiff’s alleged underinsured or uninsured motorists liability insurer. The action was tried before a jury which returned a verdict in favor of defendants. Plaintiff appeals and presents four issues for our determination:

(1) Whether defendant, Jo Ellen Cox, was guilty of actionable negligence, and if so,
(2) Whether the jury committed manifest error in failing to award plaintiff damages for loss of property;
(3) Whether the jury committed manifest error in finding that there was no aggravation of a pre-existing condition of the plaintiff resulting from the accident;
(4) Whether the jury committed manifest error in finding that plaintiff suffered no personal injuries in the accident.

FACTS

There is little or no dispute regarding the facts surrounding the occurrence of the accident which gave rise to this action. Plaintiff was driving her 1974 Oldsmobile to work on the morning of December 5, 1977. She was traveling north on Bilbo Street in the City of Lake Charles, Louisiana. Bilbo is a one-way thoroughfare with three marked lanes of travel. Plaintiff was traveling in the far left lane of Bilbo when she approached the intersection of that street with Pujo Street.

Defendant, meanwhile, was also northbound on Bilbo and was traveling in the middle lane as she too approached the above mentioned intersection. Defendant then attempted to make a left turn onto Pujo and, in doing so, crossed plaintiff’s lane of travel. Plaintiff was unable to stop in time and struck the left rear side of defendant’s vehicle. The investigating officer described the collision as a relatively minor one and neither party was taken to a hospital.

Plaintiff alleges that she suffered certain injuries and damage to her property as a result of defendant’s allegedly negligent conduct which caused the accident. A jury trial of this matter resulted in a verdict in favor of defendants. Plaintiff was granted a devolutive appeal from the judgment of the trial court dismissing her action against defendants, Jo Ellen Cox and State Farm.

ALLEGED NEGLIGENCE OF JO ELLEN COX

Because of the verdict form used, this Court is unable to determine if the jury made a finding on the issue of whether defendant’s conduct constituted actionable negligence. However, our review of the record discloses ample evidence of defendant’s negligence and that such negligence was a cause-in-fact of personal injuries and property loss suffered by plaintiff.

The undisputed evidence shows that defendant attempted to make a left turn from the middle lane of a three-lane, one-way thoroughfare in violation of LSA-R.S. 32:101(3), which provides that:

“§ 101. Required position and method of turning at intersections The driver of a vehicle intending to turn at an intersection shall proceed as follows:
(3). Left turns on other than two-way roadways. At any intersection where traffic is restricted to one direction on one or more of the roadways, the driver of a vehicle intending to turn left at any such intersection shall approach the intersection in the extreme left-hand lane lawfully available to traffic moving in the direction of travel of such vehicle and after entering the intersection the left turn shall be made so as to leave the intersection, in the safest lane lawfully available to traffic moving in such direction upon the roadway being entered.”

There are numerous cases in the jurisprudence of this State in which a left-turning motorist is held to a high degree of care in executing that maneuver. Rond v. Sims, 355 So.2d 591 (La.App. 4 Cir. 1978), writ denied, 357 So.2d 1164 (La.1978), was an action involving facts very similar to those in the present action. The court in Rond, at page 592, stated:

“A left turning motorist is held to a high degree of care in executing his maneuver, and when he makes a left turn from a lane other than the normal left turn lane in front of a vehicle in the left lane, without making sure that lane is clear, his negligence is so apparent as not to require a discussion.”

Similarly, we find Jo Ellen Cox’s actionable negligence to be so apparent that no further discussion of this issue is required.

PLAINTIFF’S PROPERTY LOSS

The policeman who investigated the accident testified that the right front portion of plaintiff’s vehicle was damaged in the crash. Plaintiff introduced a written estimate which placed the total repair bill at $433.22 for such damages. The jury apparently found that plaintiff had incurred no property loss in the accident. Plaintiff argues that the jury committed manifest error in making this finding. We agree without further discussion.

AGGRAVATION OF PLAINTIFF’S PRE-EXISTING CONDITION

Plaintiff was approximately 25 years of age at the time of the accident. The general concensus among the medical experts testifying at trial was that a disc located in plaintiff’s spine had begun to degenerate before the accident occurred.

Plaintiff alleged that she had been violently tossed about the interior of her vehicle during the collision and that this aggravated the above mentioned pre-existing condition. However, it was apparently the jury’s determination that there was no aggravation of plaintiff’s pre-existing condition in the accident. Plaintiff argues that the jury committed manifest error in making this finding.

Plaintiff and defendant each called on medical experts to testify at the trial of this action by deposition or personal appearance.

Plaintiff introduced into evidence the depositions of Dr. Thomas Moore, an orthopedic surgeon and Dr. Antonio Moure, a neurosurgeon, both of whom were practicing in Houston, Texas. These two physicians performed surgery on the plaintiff in an attempt to rid her of chronic back pain. Plaintiff argues that both of these experts conclusively stated that her pre-existing disc problem became aggravated or symptomatic by the trauma received in the accident. However, defendant argues that plaintiff failed to give these experts a complete history of her state of health as it existed prior to the accident, and that their conclusions were based on this incomplete history given them by plaintiff.

Dr. Robert Looney, a family practitioner in Lake Charles, testified for defendants. He stated that he had twice treated plaintiff in the year preceding the accident when she came to his office with complaints of low back pain. However, plaintiff denied that she had ever suffered from back pain in the history she gave Drs. Moore and Moure. Further, plaintiff failed to reveal to these physicians the fact that she had fractured her tailbone approximately one year before the accident. Both physicians testified that the medical history given them by plaintiff played a key role in the conclusions they reached as to the cause of her problems.

Dr. Looney was the first physician to examine the plaintiff after the accident. His diagnosis was that plaintiff had suffered a mild lumbosacral sprain in the accident which may have aggravated the condition which had caused her earlier back problems to a certain extent. He felt that plaintiff would recover from these injuries within four to six weeks.

Dr. Edward Phillips, Jr., an orthopedic surgeon practicing in Lake Charles, was the next physician to treat plaintiff. He examined her on February 13, 1978, and also diagnosed her problem as a mild lumbo-sacral sprain. Dr. Phillips stated that the objective test of his neurological examination failed to indicate the presence of any injury. Plaintiff saw Dr. Phillips only once.

Dr. William Foster, a neurosurgeon practicing in Lake Charles, examined the plaintiff on June 5, 1978, at the request of her attorney. He too felt that plaintiff had suffered a lumbosacral sprain during the accident but that she had completely recovered from that injury.

He was concerned, however, with plaintiff’s complaints of back pain and pain and numbness in the lower extremities. He came to the conclusion that plaintiff was suffering from nerve root irritation upon completion of his neurological examination and ordered certain tests run on plaintiff in an attempt to locate the source of her problem. These tests revealed the presence of plaintiff’s degenerative disc condition.

Dr. Foster testified that at no time did he find any indication of nerve root irritation or injury in the area of the degenerating disc, which area is where plaintiff alleges that an aggravation of a pre-existing condition took place. His opinion was that there was no aggravation of plaintiff’s pre-exist-ing disc condition and that if medical experts later found evidence of nerve root injury in that area then something had occurred after his examination to cause it.

The medical experts were in general agreement that an aggravation of a degenerative disc condition can be caused by many different things. Defendant presented evidence that plaintiff had undergone certain treatments by a chiropractor after the accident. These treatments included “adjustments and manipulations” of plaintiff’s spine in an attempt to correct what the chiropractor perceived to be an improper alignment of her spine. The medical experts, when asked if they would have recommended such treatment to their patients who suffer from a degenerative disc condition, replied that under no circumstance would they do so. They all were of the opinion that such treatment could easily aggravate the patient’s condition. Plaintiff testified that she discontinued chiropractic treatment as it was providing no relief and actually caused more pain.

We hold that the record establishes that the finding of the jury that there was no aggravation of plaintiff’s pre-existing disc condition is not clearly wrong and is fully supported by the evidence.

JURY’S FINDING THAT PLAINTIFF SUFFERED NO PERSONAL INJURIES

The jury failed to award plaintiff any damages for personal injuries, apparently finding that plaintiff suffered no injuries in the accident. Plaintiff argues that such a finding is manifestly erroneous and that this Court should proceed to award plaintiff damages for personal injuries it finds plaintiff suffered as a result of the ■ accident.

The medical experts who examined plaintiff following the accident and during the time period in which an injury, such as a lumbosacral sprain, would physically manifest itself were in agreement that plaintiff had suffered that injury. They were also in agreement that pain resulting from such an injury could last for as long as three months. There was testimony from plaintiff and those who associated with her that she suffered from and complained about the pain in her back immediately following the accident.

We hold that the record establishes that the jury committed manifest error in finding that plaintiff suffered no personal injuries as a result of the accident.

PERSONAL INJURY AND PROPERTY LOSS AWARD

We have found that plaintiff received a mild lumbosacral sprain as a result of the accident and that such injury caused her pain. We have also found that plaintiff’s property was damaged by defendant’s negligent conduct. The complete record is before us and, pursuant to LSA-C.C.P. Article 2164, we are empowered with the authority to award damages where the trial court initially rendered a judgment of dismissal which is reversed. Sheppard v. Travelers Insurance Company, 333 So.2d 342 (La.App. 3 Cir. 1976); Temple v. Liberty Mutual Insurance Company, 330 So.2d 891 (La.1976).

We find that plaintiff has proved, by a preponderance of the evidence, the existence of and extent of her damages as follows:

We award plaintiff $200.00 for medical expenses and $3,500.00 for pain and suffering, mental and physical. We also award plaintiff $433.22 for damage to her property.

For the above and foregoing reasons, the judgment of the trial court is reversed, and we render judgment as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, Janet Austin, and against defendants, Jo Ellen Cox and State Farm Mutual Automobile Insurance Company, jointly, severally, and in solido, in the amount of FOUR THOUSAND ONE HUNDRED THIRTY-THREE AND 22/100 ($4,133.22) DOLLARS plus legal interest thereon from date of judicial demand.

Costs of this appeal and at trial level are assessed against defendants-appellees.

REVERSED AND RENDERED.

      . The trial court’s judgment makes no mention of the other defendant to this action, Lumberman’s Mutual Casualty Company. There is no mention of the trial court’s disposition with respect to this defendant in the minutes of the court. However, we find this to be of no consequence as the limits of liability provided by defendant, Jo Ellen Cox’s insurer, State Farm, is well in excess of the amount awarded plaintiff.
      We also note that one of plaintiff’s former attorneys, Reuvan Rougeau, intervened in this action seeking to enforce payment to him under an alleged contract to represent plaintiff. The trial court granted plaintiff’s motion to dismiss the intervention upon conclusion of the trial as intervenor failed to appear for trial.

      . “Do you find that the negligence of Jo Ellen Cox was the cause-in-fact of plaintiffs injuries?
      YES_ NO X
      If your answer is ‘NO’ continue no further. Sign, date and return the verdict sheet. If you answer ‘YES’, answer the next question.”

      . The award is based on $3,500 for pain and suffering, mental and physical, $433.22 for property damage, and $200 for medical expenses. The medical expense award is difficult to make because of the uncertainty, from the record, as to those medical expenses for the lumbosacral sprain and those for her other back complaints not connected with the accident. However, we feel that an award of $200.00 is justified.


author: CULPEPPER, Judge.

text:
    Dessie D. CASSON et al., Plaintiff and Appellee, v. DAIRYLAND INSURANCE COMPANY et al., Defendants and Appellants.
    No. 8202.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Rehearings Denied July 8, 1981.

      Gahagan & Gahagan, R. E. Gahagan, Natchitoches, for plaintiff-appellant.
    John G. Williams, Natchitoches, for defendant-appellee.
    Brittain & Williams, Joseph Payne Williams, Natchitoches, for defendant-appellant-appellee.
    Whitehead & McCoy, Charles R. Whitehead, Jr., Natchitoches, for plaintiffs-appel-lees.
    Thomas & Dunahoe, Edwin Dunahoe, Natchitoches, for plaintiffs-appellees.
    Before CULPEPPER, DOMENGEAUX and LABORDE, JJ.
   CULPEPPER, Judge.

This is one of three cases consolidated for trial and appeal. The other two cases are Jones v. Graham [and Dairyland Insurance Company], La.App., 400 So.2d 717, and Jefferson v. Graham, La.App., 400 So.2d 718. Separate opinions are being rendered this date in the two companion cases.

These are personal injury cases arising out of a two vehicle collision. One vehicle was driven by Charles Jones, hereafter the “Jones vehicle”, and occupied by Stafford Jefferson, III as a passenger. The other vehicle was driven by James Graham, hereafter the “Graham vehicle”, and occupied by passengers Barbara Casson, Richard Cas-son, Rose Marie Burton and Robert Hampton, Jr. As a result of the accident, Richard Casson and Rose Marie Burton were killed. Charles Jones, Barbara Casson, Robert Hampton, Jr. and Stafford Jefferson, III received serious injuries.

Each vehicle was insured by Dairyland Insurance Company with liability coverage of $5,000 per person and $10,000 per accident, and with uninsured motorist coverage of $5,000 per person and $10,000 per accident.

In the first suit, Dessie D. Casson, mother of Richard Casson, sues both drivers and Dairyland for damages for her son’s wrongful death, and, in the same suit, Barbara Casson and Robert Hampton, Jr. seek damages for their injuries. In the second suit, Charles Jones sued James Graham and Dairyland for damages for personal injuries. In the third suit, Margie Jefferson, individually and as natural tutrix of the minor, Stafford Jefferson, III, sues both drivers and Dairyland.

The trial judge held both drivers negligent, thus rejecting the claim by Charles Jones on the grounds of his contributory negligence.

The district judge found there is a pool of $30,000 liability and uninsured motorist coverages available for injuries and/or death of the one passenger in the Jones vehicle and the three passengers in the Graham vehicle who filed suit. No party sued for the death of Rose Burton. The district court apportioned the available liability and uninsured motorist coverages in proportion to the damages of the respective claimants. Appeals were filed by Charles Jones, James Graham and Dairyland Insurance Company. Answers to the appeals were filed by Dessie D. Casson, Robert Hampton, Jr., Barbara Ann Casson and Margie Jefferson, contending that the pool of liability and uninsured motorist coverages available is $40,000, instead of the $30,000 found by the trial judge, and that the respective plaintiffs are entitled to proportionate increases in the awards.

The issues are: (1) Were Charles Jones and James Graham negligent? (2) Can the guest passengers and/or their survivor recover under both the liability and the uninsured motorist coverages of their respective host driver’s policies? (3) How should the liability and uninsured motorist coverages be apportioned amongst the claimants?

In written reasons, the trial judge found the following facts:

“On March 16, 1980, two (2) vehicles collided in the southbound lane of traffic on Louisiana Highway 1, approximately two miles south of the City of Natchitoches.
“The drivers of the vehicles were Charles Jones, driving a vehicle in a southerly direction with Stafford Jefferson as a guest passenger in the Jones vehicle.
“Traveling north in a vehicle being driven by James Graham were: Barbara Casson, Robert Hampton, Jr., Richard Casson, and Rose Mae Burton.
“The time was approximately 9:30 P. M.; it was dark and raining heavily. Rose Mae Burton and Richard Casson were killed in the wreck.
“Both vehicles were insured by Dairyland Insurance Company, with liability limits of $5,000 per person and $10,000 per accident.
“The Louisiana State Trooper who investigated the accident stated that when he arrived at the scene, that debris from the two wreck vehicles was over both lanes of traffic and because of the weather there was no way to determine exactly what had happened although there were two rather short but definite gouge marks in the southbound lane, indicating the point of impact to be at the site of the gouge marks.
“The testimony of the two drivers is in direct contradiction to each other. James Graham testified that the vehicle driven by Charles Jones had no headlights and that Charles Jones vehicle suddenly appeared in James Graham’s lane, and that when James Graham attempted to drive his vehicle to the right, his vehicle lost control on the wet pavement and skidded sideways into the southbound traffic lane. “It was undisputed that the front of the Charles Jones vehicle struck the left side of the Graham vehicle near the back door, as the Graham vehicle was sliding almost sideways in the Charles Jones lane of traffic.
“Charles Jones testified that James Graham was trying to pass another vehicle and suddenly slid into Charles Jones’ lane sideways, where the impact took place.
“Lee Gafford, the owner of the vehicle being driven by Charles Jones, testified that the headlight switch on his car was not operating properly and that ‘once you got the lights on, they stayed on,’ but that a stranger driving the vehicle might have trouble with the headlights because you had to pull the switch.
“Charles Jones testified on cross-examination that as he neared the site of the accident, he suddenly came into a hard rain; he reached to turn the windshield wipers on, but hit the light switch instead, turning the headlights off. His testimony then was to the effect that he turned his lights back on and the wreck happened.
“There was evidence that both Charles Jones and James Graham, as well as most, if not all, of the guest passengers had been drinking alcoholic beverages.
“Both Charles Jones and the guest passenger, Stafford Jefferson, testified that the Jones vehicle remained in its lane of traffic at all times and that the car driven by James Graham was zigzagging across the road as if passing other vehicles in its northbound direction.
“The Louisiana jurisprudence is that when an accident takes place in one driver’s lane of traffic, that the presumption is that the car in the improper lane at the time of the wreck is at fault.
“Considering the overall picture in this case and after going over the testimony of the drivers and the witnesses, it is the ruling of this Court that James Graham did not have proper control of his car and was negligent, and that Charles Jones was also negligent in driving a vehicle with defective headlights and also did not have his vehicle under proper control. The extremely heavy downpour of rain at the time of the wreck imposed a high duty of care on these drivers on this rather narrow, two-lane, heavily-traveled, main highway. Both drivers failed to drive their vehicles in a safe and prudent manner.”

A review of the record shows the evidence supports the above findings of fact by the trial judge. Certainly, the district court was not clearly wrong in finding both drivers negligent. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979).

The principal issues on appeal concern the liability and uninsured motorist coverages and the apportionment thereof. The district judge found $10,000 of uninsured motorist coverage on the Graham vehicle available for Dessie Casson, Barbara Casson and Robert Hampton, Jr., and the sum of $10,-000 uninsured motorist coverage on the Jones vehicle available for Stafford Jefferson, III, a total of $20,000 in uninsured motorist coverages. The judge apparently found a total of $10,000 of liability coverages on both vehicles available to the respective claimants. The judge apportioned this $30,000 as follows:

“Barbara Ann Casson $ 4,706.05
Robert Hampton, Jr. 8,235.25
Dessie D. Casson 9,999.85
Margie Jefferson, on behalf of her minor son, Stafford Jefferson, III 7,058.85
TOTAL $ 30,000.00”

In addition, the trial judge found that under the medical pay coverages of $1,000 per person under the policies, Dessie Casson had already received $1,000 for expenses of her deceased son, Richard. The judgment awards $1,000 medical pay to Margie Jefferson, as tutrix of her minor son, Stafford Jefferson, III, $1,000 to Robert Hampton, Jr. and $454 to Barbara Ann Casson.

The plaintiffs-appellants who answered the appeal contend there is a total of $40,000 in liability and uninsured motorist coverages available to them. The defendant Dairyland contends that under Breaux v. Government Employees Life Insurance Company, 369 So.2d 1335 (La.1979), the passengers cannot recover under both the liability coverages and the uninsured motorist coverages on their respective host drivers’ vehicles.

We considered this issue in Coco v. Allstate Insurance Company, 391 So.2d 50 (La. App. 3rd Cir. 1980) and more recently in Nall v. State Farm Mutual Automobile Insurance Company (La.App. 3rd Cir. 1981). In Nall we held that under Breaux and Coco a passenger cannot recover under both the liability and the uninsured motorist coverages on his host driver’s vehicle. However, we -noted, perhaps in dicta, that a guest passenger can recover against his host driver under the liability coverage on the host’s Vehicle and also against the driver of another vehicle under the uninsured motorist coverage on the host’s vehicle. See the opinion in Nall for our full reasons.

Applying these rules to the present case, the Graham vehicle passengers, Barbara Casson, Robert Hampton, Jr. and Dessie Casson, survivor of Richard Casson, and the Jones vehicle passenger, Margie Jefferson, on behalf of her minor son, Stafford Jefferson, III, are entitled to recover under the combined liability coverages on both vehicles, a total of $20,000 in liability coverage to be apportioned amongst the four claimants. As to the uninsured motorist coverages, Stafford Jefferson, III, being the sole passenger in the Jones vehicle, had a maximum of $5,000 uninsured motorist coverage available to him, as a passenger in that vehicle, against the driver of the Graham vehicle. The three passengers in the Graham vehicle had available to them the maximum of $10,000 uninsured motorist coverage on that vehicle in their claims against the driver of the Jones vehicle. Thus, the total liability and uninsured motorist coverages available is $35,000.

Using the same proportionate percentages of damages to coverage as the trial judge, this means that the total of $20,000 in liability coverages on both vehicles is divided as follows:

Barbara Casson_$ 3,137.37
Robert Hampton, Jr. _ 5,490.17
Dessie D. Casson, mother of Richard Casson_ 6,666.66
Margie Jefferson, mother of the minor, Stafford Jefferson, III_ 4,705.80
TOTAL_$20,000.00

As to the apportionment of the uninsured motorist coverages, the evidence shows that Stafford Jefferson, III is entitled to damages far exceeding the proportionate amount he receives under the liability coverages and the $5,000 limitation on uninsured motorist coverage on the Jones vehicle. Thus, he receives the whole $5,000. The $10,000 limitation of uninsured motorist coverage on the Graham vehicle is apportioned as follows:

Barbara Casson_$ 2,051.35
Robert Hampton, Jr. _ 3,589.73
Dessie D. Casson, mother of Richard Casson_ 4,358.92
TOTAL.$10,000.00

Thus, the liability and uninsured motorist coverages on the two vehicles is divided as follows:

Barbara Casson_$ 5,188.72
Robert Hampton, Jr. _ 9,079.90
Dessie D. Casson, mother of Richard Casson_ 11,025.58
Margie Jefferson, mother of Stafford Jefferson, III _ 9,705.80
TOTAL_$35,000.00

In addition, Barbara Casson is entitled to the sum of $454 under the medical payments provisions of the Graham vehicle. Robert Hampton, Jr. is entitled to the sum of $1,000 under the medical payments provisions of the Graham vehicle and Margie Jefferson, mother of Stafford Jefferson, III, is entitled to $1,000 under the medical payments provisions of the Jones vehicle.

For the reasons assigned, the judgment appealed in the present case is amended to award Barbara Ann Casson a total of $5,642.72, to award Robert Hampton, Jr. a total of $10,079.90 and to award Dessie Cas-son, mother of Richard D. Casson, a total of $11,025.48. Otherwise than as herein amended, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendants-appellants.

AFFIRMED, AS AMENDED.


text:
    Charles JONES, Plaintiff and Appellant, v. James GRAHAM and Dairyland Insurance Company, Defendants and Appellees.
    No. 8203.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Rehearings Denied July 8, 1981.
    Gahagan & Gahagan, R. E. Gahagan, Natchitoches, for plaintiff and appellant.
    John G. Williams, Natchitoches, for defendant and appellee.
    Brittain & Williams, Joseph Payne Williams, Natchitoches, for defendant-appellant-appellee.
    Whitehead & McCoy, Charles R. Whitehead, Jr., Thomas & Dunahoe, Edwin Duna-hoe, Natchitoches, for plaintiffs-appellees.
    Before CULPEPPER, DOMENGEAUX and LABORDE, JJ.
   CULPEPPER, Judge.

For the reasons assigned in the companion case, Casson v. Dairyland Insurance Company, La.App., 400 So.2d 713, in which a separate judgment is being rendered by us this date, the judgment appealed in the present case is affirmed. All costs of this appeal are assessed against the defendants-appellants.

AFFIRMED.


text:
    Margie JEFFERSON, Individually and As Natural Tutrix of the Minor, Stafford Jefferson, III, Plaintiff and Appellee, v. James GRAHAM, et al, Defendants and Appellants.
    No. 8204.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Rehearings Denied July 8, 1981.
    Gahagan & Gahagan, R. E. Gahagan, Natchitoches, for plaintiff-appellant.
    John G. Williams, Natchitoches, for defendant-appellee.
    Brittain & Williams, Joseph Payne Williams, Natchitoches, for defendant-appellant-appellee.
    Whitehead & McCoy, Charles R. Whitehead, Jr., Natchitoches, for plaintiffs-appel-lees.
    Thomas & Dunahoe, Edwin Dunahoe, Natchitoches, for plaintiffs-appellees.
    Before CULPEPPER, DOMENGEAUX and LABORDE, JJ.
   CULPEPPER, Judge.

For the reasons assigned in the companion case, Casson v. Dairyland Insurance Company, La.App., 400 So.2d 713, in which a separate judgment is being rendered by us this date, the judgment appealed herein is amended to increase the award to Margie Jefferson, individually and as natural tutrix of the minor, Stafford Jefferson, III, to the total sum of $10,705.80. Otherwise than as herein amended, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendants-appellants.

AFFIRMED, AS AMENDED.