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

485 So. 2d 578
Louisiana Court of Appeal·Decided March 12, 1986·No. CA 3351, CA 3352·Published·Cited by 5 cases

Opinion

485 So.2d 578 (1986)

Elton J. KING; Nancy H. King
v.
STATE FARM MUTUAL AUTOMOBILE INS. CO., Mandy C. Kelly et al.

Nos. CA 3351, CA 3352.

Court of Appeal of Louisiana, Fourth Circuit.

March 12, 1986.
Writ Denied May 12, 1986.

*579 Victoria Lennox Bartels, William F. Wessel, Wessel, Bartels & Ciaccio, New Orleans, for Nancy H. King.

Joseph W. Thomas, New Orleans, for Elton J. King.

C. Gordon Johnson, Jr., Page McClendon Michell, Porteous, Toledano, Hainkel & Johnson, New Orleans, for Mandy C. Kelly and State Farm Mut. Ins. Co.

Timothy G. Schafer, Schafer & Schafer, New Orleans, for Linda and Donald Nicholson and United Services Auto. Ass'n.

Before REDMANN, C.J., and BARRY and LOBRANO, JJ.

REDMANN, Chief Judge.

Two children, ages seven and 11, were killed by an automobile when it left the highway to avoid hitting a van that had just entered the highway. The divorced parents of the children brought separate wrongful death actions against the vehicle drivers and insurers. The parents now appeal from a judgment that (1) dismissed the mother's action against the van's driver and its $200,000-limit insurer, while awarding her $300,000 against the automobile's driver and his father and (within their limits) his $10,000-limit insurer and the mother's own $25,000-limit uninsured motorist *580 insurer, and (2) dismissed the father's action against both drivers and their insurers on the basis that his damages were zero.

The question in the mother's appeal is the liability of the van driver, who, to make a left turn at a T-intersection with a six-lane highway with 19-foot median, after stopping in the median, crossed all the way into the third left-bound lane, providing the occasion for a 15-year-old driver in that lane (going perhaps 45 mph in a 40 mph zone) to drive over the right curb just 43' past the intersection to avoid hitting the van, and then to strike and kill the two children waiting for a bus 50' farther away.

The added question in the father's appeal is whether the jury was clearly wrong in fixing the father's damage from the wrongful deaths at zero because of the slight interest he demonstrated in the children during the six and a half years after his separation from their mother—as by paying court-ordered child support only once during the last two years of their lives despite being regularly employed.

We reverse the dismissal of the van driver and her insurer from the mother's action but affirm the dismissal of the father's action.

I

The father sued for $100,000 for "loss of support, society, love and affection" and $150,000 for his grief. The children were about 15 months and four years eight months old when the parents separated, over six and a half years before the children's death. Although the father testified that he regularly paid child support from February 1974 until 1977, the mother testified that she had to take him to court. And, although he was regularly employed as a schoolteacher, he did not regularly contribute after 1977, but he did make one $75 payment to a Mobile court about five months before the October 3, 1980 death of the children. The mother testified that he saw the children seldom after the separation; he did not visit them during the last 23 months they were alive; he telephoned them once and wrote once in response to one's written request during their last two years.

It is the jury's function and province to evaluate the credibility of witnesses, and the jury plainly disbelieved the father's protestations of interest in and affection for the children. The jury does not, of course, have the authority to deny damages to a damaged parent as punishment for not paying child support. But not every biological parent is damaged by his or her child's death, and parents are only entitled to "the damages which they sustained through the wrongful death of the deceased," La.C.C. 2315. One who is little more than the legal and biological parent of a wrongly-killed child, without being a partner in a valuable parent-child relationship the destruction of which damages the parent, is not entitled to a monetary award for the death of the child. Mitt v. Security Ins. Co., 361 So.2d 465 (La.App. 4 Cir.1978), cert. denied 362 So.2d 1116.

Our facts are not so clear as those of Mitt, where the child, 17 at death, had been raised since age one not by the mother (much less by the legal father) but by the biological father and his family. Nevertheless our jury, by believing the mother and disbelieving the father, could reasonably have concluded that this father's relationship with his children was such that its destruction did not damage him to the extent that courts should grant him monetary recompense. In that conclusion, although it may be a close question, we cannot say, without having observed the witnesses, that the jury was "clearly wrong," as required to reverse by Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978).

II

In its conclusion that the van driver was not negligent, on the other hand, the jury was clearly wrong (irrespective of whether, as appellants argue, the jury charge was erroneous).

Only 42'11" from the Crowder Boulevard southbound lane from which the van *581 turned left into the automobile's eastbound lane on Chef Menteur highway, the automobile had to climb the right curb off the highway to avoid hitting the van. (The car was unable to veer into the middle lane, apparently in part because the van was turning through the middle lane—in violation of La.R.S. 32:101(3)'s command to turn into "the safest lane"—but also because an otherwise unidentified black car was traveling in the middle lane.)

The extreme shortness of that distance proves the van driver's contributory fault in having turned into a lane when it was not safe to do so.

The clear explanation for the jury's clear error in failing to see fault so evident is the testimony of Duaine T. Evans. Evans's testimony, given as an expert, would place the automobile 1,048' away and able to stop in only 139' if traveling at the 40-mph speed limit when the van began to move into the intersection from its stop in the median.

That testimony must be rejected, first, because it is clearly wrong in calculating that critical distance on the basis that the automobile's speed of 45 mph is 75 (rather than 66) feet per second and, second, because it is based on two unsound assumptions that were provided (no doubt in good faith) by the lawyer for the van's driver and insurer.

The expert's own error of using 75 instead of 66 fps was presumably the result of a "slip of the finger" on his calculator. He explained that he multiplied mph by 1.4667 to get fps, but apparently he multiplied the 45 mph by 1.667, erroneously omitting the 4 of 1.4667, and thus obtained 75 instead of 66 fps. He used 75 throughout his critical calculations, which would have to be discarded on that score alone.

Moreover, the two assumptions that the lawyer gave the expert, both factual, were both inconsistent with or unsupported by the evidence and (as to the second) common experience, but were both used by the expert in calculating that 1,048' distance.

The first assumption was that, by the time the automobile caught up with the van, the automobile had traveled to a portable sign located 149'11" from the left southbound Crowder lane from which the van entered.

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King v. State Farm Mut. Auto. Ins. Co., 485 So. 2d 578 (La. Ct. App. 1986).

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