O'Quin v. Continental Casualty Insurance Co.

967 So. 2d 1194, 7 La.App. 3 Cir. 355, 2007 La. App. LEXIS 2137, 2007 WL 2935379
CourtLouisiana Court of Appeal
DecidedOctober 10, 2007
DocketNo. 07-355
StatusPublished
Cited by1 cases

This text of 967 So. 2d 1194 (O'Quin v. Continental Casualty Insurance Co.) 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
O'Quin v. Continental Casualty Insurance Co., 967 So. 2d 1194, 7 La.App. 3 Cir. 355, 2007 La. App. LEXIS 2137, 2007 WL 2935379 (La. Ct. App. 2007).

Opinion

SULLIVAN, Judge.

hThe State of Louisiana, through the Department of Public Safety and Corrections, Louisiana State Police (the State), appeals a judgment rendered in accordance with a jury verdict finding it 80% at fault in the death of Faron O’Quin and awarding Plaintiffs damages. For the following reasons, we affirm.

INTRODUCTION

This matter arises from the death of a volunteer fireman at the site of a hazardous material spill when he was struck nearly fifteen hours after the spill by a pickup truck driven by Herman T. Kelly. Mr. O’Quin’s widow, Mary Faye O’Quin, individually and on behalf of her minor children, Paige O’Quin and Logan O’Quin, filed a wrongful death and survival action against the State, alleging that it was liable for their damages because it failed to properly secure the scene of the initial accident.1

This matter proceeded to jury trial on September 25-29, 2006. The jury returned a unanimous verdict in favor of Plaintiffs and against the State, finding the State 80% at fault and Mr. Kelly 20% at fault for the death of Mr. O’Quin and awarding Plaintiffs damages. On November 27, 2006, the trial court rendered judgment in accordance with the jury verdict. After subtracting the amount of the damages awarded attributable to the fault of Mr. Kelly, Plaintiffs were awarded damages in the following amounts:

Mary O’Quin.$834,051.76
Paige O’Quin.$379,200.00
Logan O’Quin .$379,200.00

1 aIt is from that verdict and judgment that the State now appeals. In its sole assignment of error, the State asserts that:

The [jury] erred by assessing eighty percent fault to [the] State DPS & C where the cause-in-fact of the accident was wholly the fault of unnamed code-fendant’s [sic] Herman Kelly’s act of failing to properly operate his vehicle under extremely limited visibility and was thereby unable to avoid striking emergency personnel in the his [sic] path, is supported by the facts and the law.

FACTS

On March 14, 2003, at approximately 4:30 p.m., an eighteen-wheeler carrying potentially hazardous chemicals overturned, spilling some of its contents onto the entrance of Sammy’s Truck Stop (Sammy’s) on Highway 115 near its intersection with [1197]*11971-49 just outside of Bunkie, Louisiana. Several members of the Bunkie Fire Department arrived on the scene shortly thereafter. Fire Chief Joseph Frank summoned the Hazardous Materials Unit (HazMat) of the State Police due to his concern that the contents of the truck may have been leaking.

Jared Foreman and Mr. O’Quin, volunteer firemen with the Lone Pine Fire Department, separately stopped at the scene on the way home from their respective employments. Fire Chief Frank asked if they could stay and help his firemen, and they agreed. Mr. Foreman testified that firemen usually arrive at the scene of an accident before the police; therefore, firemen often worry about getting hit by motorists. After the police arrive, however, they trust them to secure the scene.

Trooper Shelly Hopkins was the Haz-Mat officer who initially responded to the accident. As the HazMat officer in charge of the scene, his job was to designate the area that was off-limits to persons not wearing the appropriate protective gear. He testified that traffic control was not a part of his duties, but rather, that the road troopers were in charge of that aspect of the accident site.

1 ¡/Trooper John Douglas of the Louisiana State Police, an officer with nearly twenty-three years of experience as a road trooper at the time of the accident, arrived on the scene at 8:30 p.m. on March 14, 2003. His job was to engage in traffic control. He testified that the weather was clear when he arrived but that fog came in later in the evening and remained throughout the next morning in variations of thickness. He initially parked his vehicle near Officer Hopkins’ HazMat vehicle so that his lights would be visible from the rear. Trooper Douglas testified that the fog was more dense closer to the interstate and that he ran the risk of being hit if he parked closer to the interstate. He acknowledged having stated in previous out-of-court testimony that if his vehicle would have been parked closer to 1-49, it would have been the first thing that Mr. Kelly would have struck, and Plaintiffs’ attorney would be representing his widow rather than Mrs. O’Quin.

Trooper Douglas stated that he was sitting in his patrol ear in the center of the roadway with his blue emergency lights flashing when Mr. O’Quin was hit. Although he did not see the impact because he was facing the opposite direction, he stated that he heard tires squealing and then heard the impact. The impact occurred to the right and behind him. He stated that several fire trucks were “up there [near the chemical spill]” at the time Mr. O’Quin was struck. Trooper Douglas testified that his supervisor, Officer Martel, arrived at the scene after the O’Quin accident and ordered him to move his vehicle closer to the interstate in order to extend the perimeters of the accident scene. Because he was still concerned for his own safety, Trooper Douglas parked on the neutral ground of the exit ramp where 1-49 meets Highway 115 to avoid being hit by oncoming traffic.

|4The trial testimony indicated that the pickup truck of an employee of Oil Mop, L.L.C., an emergency response company, became the staging area for many of the first responders, such as Mr. O’Quin, who were not actively engaged in offloading the overturned truck, and, thus had to remain outside of the chemical hazard zone established by the HazMat unit. Trooper Douglas testified that he was aware that various first responders came and went around the Oil Mop truck throughout the entire evening.

On March 14, 2003, at approximately 8:00 a.m., Virgil Blanchard, an employee of Oil Mop, responded to the hazardous material spill. His job was to transfer the load [1198]*1198from the overturned truck to another empty eighteen-wheeler supplied by the trucking company so that the overturned truck could be up-righted. Mr. Blanchard testified that he parked his Oil Mop company truck off the right side of the road a short distance past the first entrance to Sammy’s, ahead of the state trooper’s vehicle.2 He felt that he had parked in a secured zone. When he initially arrived, the state trooper’s vehicle was blocking the first entrance to Sammy’s, but the trooper later moved his vehicle to allow entry into Sammy’s parking lot. Mr. Blanchard stated that after he finished transferring the chemical, he noticed that the trooper had moved his vehicle again. By the time the O’Quin accident occurred, Mr. Blanchard’s Oil Mop truck was the first vehicle that a motorist headed east on Highway 115 would encounter upon approaching the initial accident site.

Mr. Blanchard testified that it was daybreak when he finished off-loading the chemicals and returned to his truck to store his gear. There was a group of people [¡^standing near the tailgate of his truck, including Mr. O’Quin, Mr. Cory Bu-taud3, and two wrecker company employees. He remembered that Mr. O’Quin had his reflective gear on at the time. The fog was very heavy and visibility was minimal. He testified that he heard the sounds of an engine racing and tires squealing, coming from the direction of the interstate. He then saw the lights of a vehicle about 150 to 200 feet away. Mr.

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Bluebook (online)
967 So. 2d 1194, 7 La.App. 3 Cir. 355, 2007 La. App. LEXIS 2137, 2007 WL 2935379, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oquin-v-continental-casualty-insurance-co-lactapp-2007.