Employers Ins. Co. of Wausau v. Dryden

422 So. 2d 1243, 1982 La. App. LEXIS 8186
CourtLouisiana Court of Appeal
DecidedOctober 12, 1982
Docket15116
StatusPublished
Cited by6 cases

This text of 422 So. 2d 1243 (Employers Ins. Co. of Wausau v. Dryden) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Employers Ins. Co. of Wausau v. Dryden, 422 So. 2d 1243, 1982 La. App. LEXIS 8186 (La. Ct. App. 1982).

Opinion

422 So.2d 1243 (1982)

EMPLOYERS INSURANCE COMPANY OF WAUSAU
v.
Theodore M. DRYDEN.

No. 15116.

Court of Appeal of Louisiana, First Circuit.

October 12, 1982.
Rehearing Denied December 16, 1982.

C.T. Williams, Jr., New Orleans, for plaintiff, defendant and appellant.

Dennis S. Gaubert of St. Martin & St. Martin, Houma, for defendant and appellee.

Before EDWARDS, WATKINS and SHORTESS, JJ.

WATKINS, Judge.

This is an action for personal injury brought by Theodore M. Dryden, a captain with the Terrebonne Parish Sheriff's Office at the time of the accident sued upon, against Employers Insurance Company of Wausau, the uninsured and underinsured motorist insurer of the Terrebonne Parish Sheriff's Office, Ross Hinkie, the driver of a van that struck and seriously injured Dryden, State Farm Mutual Automobile Insurance Company, the automobile liability insurer of Roy Hinkie, Ross Hinkie's father, and Prudential Property and Casualty Insurance Company, alleged to be the uninsured and underinsured motorist insurer of an undesignated party. Employers of Wausau filed a third party demand against Ross Hinkie and State Farm. Consolidated with this action was a prior suit for a declaratory judgment construing the policy filed by Employers of Wausau against Dryden. The parties stipulated before trial that the maximum uninsured or underinsured motorist limits of the policy issued by Employers of Wausau to the Sheriff's Office was $100,000.00, and that should the trial court decide *1244 for Dryden, judgment was to be rendered in the sum of $100,000.00. It did not rule upon Dryden's demands against the other co-defendants or upon Employers of Wausau's third party demand. Employers of Wausau appealed the judgment in favor of Dryden against it. Thus, the sole issue before us on appeal is the correctness of the trial court's judgment in favor of Dryden and against Employers of Wausau. We affirm, finding the judgment of the trial court to be correct.

On July 28, 1979, two motor vehicle accidents occurred in early morning between 4:00 and 5:30 o'clock on the southbound lanes of Louisiana Highway No. 24 north of Savanne Road near Houma, Louisiana. Dryden was seriously injured in the second accident.

In the first accident, the facts surrounding which concern us only indirectly, a vehicle ran off the highway and wrapped itself around a post supporting a "Dailey Oil Tool" sign near Highway 24. One of the occupants of the vehicle was killed and one was seriously injured. Sheriff's cars and state police cars arrived on the scene very quickly. Captain Dryden of the Sheriff's Office, who was in charge of and who drove E-1, a Sheriff's Office emergency vehicle, drove across to Highway 24 by way of Savanne Road which intersected the two southbound lanes of Highway 24 south of the accident scene. Because of the emergency, Captain Dryden proceeded north, against traffic, on the southbound portion of Highway 24 to the scene of the accident. (At the point of the accident, Highway 24 has two northbound and two southbound lanes, being respectively on the east and west banks of a bayou.) Captain Dryden parked E-1 on the shoulder of the southbound lanes facing north. The front wheels of E-1 were on the shoulder several feet from the highway, and the rear wheels were also on the shoulder but much nearer to the highway. The rear bumper of E-1 protruded onto the highway several inches. Captain Dryden was injured so severely that he was stipulated to have no memory of the second accident. However, Sheriff's and State Police officials speculated that E-1 was left at a slant because of the emergency situation resulting from the first accident, and the presence of the other vehicles of the Sheriff's Office and State Police, which made it impossible to park in any other manner.

After parking E-1, Captain Dryden went over to the scene of the first accident and undertook the extrication of the dead man and the injured occupant of the vehicle wrapped around the Dailey sign post. This process took a considerable length of time. Finally, both occupants were extricated and placed in ambulances. Throughout this time, Lt. Rivet of the Sheriff's Office stood in the center of the highway, directing traffic into the right (west) lane. When the occupants were removed from the vehicle, Captain Dryden called Lt. Rivet away from directing traffic to obtain information about the two persons in the vehicle and also that vehicle's license number.

Shortly thereafter, Captain Dryden walked over to the left (driver's side) of E-1, and opened a small cargo door on the side of the emergency unit to the rear of the passenger compartment in order to stow equipment. He placed unknown items of equipment in the compartment within that door. About that time, a van driven by Ross Hinkie and owned by his father, Ray Hinkie, which was proceeding south on Highway 24 in the left lane, struck the door of the emergency vehicle and Captain Dryden, causing serious injuries to Captain Dryden.

At the time of the second accident, it was still dark. However, the highway was illuminated by street lights and also the Dailey sign, which was still lighted in spite of the fact that the vehicle was wrapped around the supporting post as a result of the first accident. There were several Sheriff's and State Police cars on both sides of the road and all had red and blue emergency lights flashing. Also, red and blue emergency lights were flashing on the emergency vehicle, and floodlights of considerable candlepower located on the emergency vehicle were illuminated at the scene of the first *1245 accident. The road was dry, and it was not raining. Hinkie testified that when he saw the emergency lights, he slowed down from the speed limit of 40 mph to a speed of 25-30 mph. He merely let up on the accelerator; he did not apply the brakes.

The only eyewitnesses who saw the second accident itself, rather than merely the events immediately before and immediately after, were Hinkie and a friend, who was the only occupant of the Hinkie van, Steven C. McGraw. Both had been out drinking all night and Hinkie had a PEI reading of 1.7 (sic). In a separate criminal proceeding, the transcript of which was introduced in the present proceeding by stipulation of counsel for the facts testified to, Hinkie was found guilty of driving while under the influence of alcohol.

Employers of Wausau contends (1) that Dryden was not an insured under the uninsured motorist policy issued by it to the Terrebonne Parish Sheriff's Office and, further, (2) that Hinkie was free from negligence and Dryden was guilty of contributory negligence.

The policy issued by Employers of Wausau contains the following provisions with respect to "PERSONS INSURED":

"Each of the following is an insured under this insurance to the extent set forth below:
(a) the named insured and any designated insured and, while residents of the same household, the spouse and relatives of either;
(b) any other person while occupying an insured highway vehicle; and
(c) any person, with respect to damages he is entitled to recover because of bodily injury to which this insurance applies sustained by an insured under (a) or (b) above.
The insurance applies separately with respect to each insured, except with respect to the limits of the company's liability."

We hold that Dryden was an insured under clause (a) and under clause (b) as well.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bieller v. Atlantic Specialty Insurance Co.
232 F. Supp. 3d 928 (E.D. Louisiana, 2017)
Valentine v. Bonneville Ins. Co.
691 So. 2d 665 (Supreme Court of Louisiana, 1997)
Valentine v. Bonneville Ins. Co.
672 So. 2d 461 (Louisiana Court of Appeal, 1996)
Barnes v. Thames
578 So. 2d 1155 (Louisiana Court of Appeal, 1991)
Bryant v. Protective Cas. Ins. Co.
554 So. 2d 177 (Louisiana Court of Appeal, 1989)
Hogan v. State Farm Automobile Insurance Co.
449 So. 2d 555 (Louisiana Court of Appeal, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
422 So. 2d 1243, 1982 La. App. LEXIS 8186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/employers-ins-co-of-wausau-v-dryden-lactapp-1982.