Threats v. Derousselle

636 So. 2d 276, 1994 WL 113053
Louisiana Court of Appeal·Decided April 6, 1994·No. 93-1047·Published·Cited by 8 cases

Opinion

636 So.2d 276 (1994)

Norma W. THREATS, Plaintiff-Appellee,
v.
Bryan P. DEROUSSELLE, et al., Defendants-Appellants.

No. 93-1047.

Court of Appeal of Louisiana, Third Circuit.

April 6, 1994.

*277 Terry Eli Theriot, Lafayette, for Becky Threats.

James Edward Diaz Jr., Lafayette, for Bryan P. Derousselle et al.

B. Todd Soileau, Rayne, for Louisiana Indem. Co.

Stephen Miller Irving, Baton Rouge, for Fidelity Fire & Cas. Ins. Co.

Before KNOLL, COOKS and WOODARD, JJ.

KNOLL, Judge.

In this insurance coverage litigation, Louisiana Indemnity Company (Louisiana Indemnity), the uninsured motorist carrier of Norma Threats, appeals the trial court's grant of summary judgment in favor of the insured and her daughter, Becky C. Threats. The trial court found that the exclusion of Becky, a member of Mrs. Threats' household, in the Louisiana Indemnity policy was unenforceable because it violated the Compulsory Insurance Law, LSA-R.S. 32:861, and was against public policy. Accordingly, the trial court ruled that the Louisiana Indemnity policy provided uninsured motorist and collision coverage.

Subsequently, a trial on the merits was held and the trial court determined Becky's percentage of fault, her general damages, and Norma's recovery under the collision and towing provisions of her insurance contract with Louisiana Indemnity. The trial court further allocated liability between Louisiana Indemnity and LIGA, the legal successor to the insurer for the other motorist involved in the accident, Bryan Derousselle.

Louisiana Indemnity contends that the trial court erred in finding: (1) uninsured motorist coverage and collision coverage under the Louisiana Indemnity policy; (2) failing to find Becky's exclusion in accordance with public policy by applying the July 9, 1992, amendment to LSA-R.S. 32:900(L) retroactively to this preamendment policy and accident; and (3) substantively amending the trial court judgment with regard to the liability relationship between Louisiana Indemnity and LIGA after written reasons for judgment were handed down. We affirm.

FACTS

The learned trial court set out the facts of this case in its written reasons for judgment which we incorporate as our own:

"This case involves an automobile accident which occurred on April 18, 1990. Becky Threatts, the driver of the Toyota Corolla owned by her mother, Norma Threatts, testified that her mother gave her permission to use her automobile. Becky testified that on April 18, 1990, she drove her mother's automobile to purchase gas at the Exxon station located at the intersection of South College Road and Johnston Street in Lafayette, Louisiana. She was behind a recreational vehicle waiting to exit the station onto South College Road when she heard a roaring engine and saw a pick-up truck heading straight toward her. The right front of the pick-up truck struck the left front of the Threatts' automobile. Bryan Derousselle, the driver of the pick-up truck which was involved in the accident, testified that he entered the Exxon station from South College Road to purchase gas. He stated that the Threatts' automobile was moving forward just before the collision. A written statement by Mr. Derousselle was entered into evidence. It stated that Becky Threatts darted out *278 from the direction of the self-service pumps and struck his truck.
The police report indicates that Mr. Derousselle stated that he turned right from South College Road onto the Exxon station parking lot when Becky Threatts pulled out into his path. Becky stated that she was leaving the pumps when Mr. Derousselle, who she heard changing gears as he sped across the lot, struck her vehicle.
All maneuvers in a service station should be undertaken with extreme caution as there are no rules of the road and traffic may approach from any direction at any time. This Court finds both parties were moving forward at the time of the accident and neither party was paying attention to their surroundings and were both negligent in causing this accident. This Court finds that each party is fifty percent at fault for the cause of this accident.
As a result of this accident, Becky Threatts suffered back and neck pain for which she was treated at University Medical Center for about six months. She began feeling better after this time. She incurred a bill of $347.11 for the services of Acadian Ambulance because of the accident.
Norma Threatts, the other plaintiff in this matter sustained damages to her vehicle which was involved in the accident.
Prior to this accident, Norma Threatts had purchased an automobile public liability insurance policy from Louisiana Indemnity Company which was in full force and effect on the date of the accident. It included coverage for bodily injury and property damage liability, collision and uninsured motorist protection. Norma Threatts testified that she was required to exclude her daughter from coverage in order to obtain insurance and signed an exclusion endorsement. Defendant Bryan Derousselle was insured by Fidelity Fire and Casualty Insurance Company.
Becky Threatts brought suit against Bryan Derousselle and Louisiana Insurance Guarantee Association (LIGA) as the legal successor to Fidelity Fire, its insurer, and against Louisiana Indemnity Company under the uninsured motorist provisions of the policy.
Norma Threatts filed suit against Mr. Derousselle and LIGA for her property damages as well as Louisiana Indemnity, her collision carrier.
Louisiana Indemnity cross-claimed Bryan Derousselle and/or LIGA for indemnity, and/or alternatively contribution for any amounts it may be adjudicated liable unto each plaintiff.
Norma Threatts testified that she was told by Fidelity Fire's employee, Ronald Pearson, that she could choose where she wanted her car repaired and Fidelity would pay for the costs. The car was repaired in May of 1990 at Musson Patout but Norma Threatt was not allowed to pick it up because the bill had not been paid. She contacted Fidelity and they refused payment.
Demand was made by Norma Threatts for payments from Louisiana Indemnity under the collision provision of the policy. It refused payment stating that Norma Threatts specifically excluded Becky Threatts as a driver.
* * * * * *
Norma Threatts paid the towing bill of $217.35 on the day of the accident. She was unable to pay Musson Patout the cost of repair because she has been unable to work. The cost of repair totals $3,874.44. Norma Threats incurred storage costs of the vehicle of $7,803 from July 1, 1990 to this date at a rate of $9.00 per day at Musson Patout because they refused to tender the car without payment.
At the trial of this matter, Ronald Pearson denied authorizing Musson Patout to perform the repairs on Norma Threatts' automobile. This Court finds that even if Pearson would have entered into a contract with Norma Threatts with regard to the repair of the vehicle in payment of the repair bill, it is not binding on LIGA. The pre-insolvency debts of the insolvent company, Fidelity Fire, are not the responsibility of LIGA. Louisiana Revised Statute 22:1379.
*279 Judgment in favor of Becky Threatts and against Bryan Derousselle and LIGA for $1,347.11 which includes the ambulance bill in the amount of $347.11 and general damages in the amount of $1,000.00.

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