Wheat v. Wheat

868 So. 2d 83, 2003 La. App. LEXIS 3063, 2003 WL 22519665
CourtLouisiana Court of Appeal
DecidedNovember 7, 2003
DocketNo. 2003 CA 0173
StatusPublished
Cited by2 cases

This text of 868 So. 2d 83 (Wheat v. Wheat) 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
Wheat v. Wheat, 868 So. 2d 83, 2003 La. App. LEXIS 3063, 2003 WL 22519665 (La. Ct. App. 2003).

Opinion

loGAIDRY, J.

In this suit involving an insurance coverage dispute, Sidney Wheat appeals a trial court judgment granting summary judgment in favor of National General Insurance Company, Wheat’s uninsured motorist carrier. We reverse.

FACTS AND PROCEDURAL HISTORY

On May 19, 1998, at approximately 1:00 a.m., Sidney Wheat was driving on Louisiana Highway 22 in Tangipahoa Parish with his ex-wife, Ann Wheat, in the passenger seat and his sister, Martha Temples, in the back seat. Wheat’s vehicle struck some[85]*85thing in the roadway, causing him to lose control and leave the roadway, ultimately traveling down a steep incline and striking several trees. All three occupants of the vehicle were injured.

Sidney Wheat, Ann Wheat, and Martha Temples all testified that they did not see anything in the roadway before the-impact, and Sidney Wheat testified that he initially thought he had been hit from behind by another vehicle. However, when Trooper Clay Smith arrived on the scene to investigate the accident, he discovered that Sidney Wheat’s vehicle had struck a vehicle transmission that had been left in the roadway. Trooper Smith determined that the transmission that caused the accident was not the transmission from the Wheat vehicle.

Sidney Wheat filed a claim with National General Life Insurance Company (National), his automobile liability insurer, under the uninsured motorist coverage. National denied the claim, and this suit followed. National filed a motion for summary judgment, alleging that Sidney Wheat was not entitled to coverage under the terms of the policy, and the trial court granted the motion. Sidney Wheat appealed, alleging that the trial court | misinterpreted the law in finding that he was not entitled to coverage under the policy and therefore erred in granting summary judgment.

DISCUSSION

An appellate court’s review of a summary judgment is a de novo review based upon the evidence presented at the trial court and using the same criteria used by the trial court in deciding whether a summary judgment should be granted. Simmons v. Berry, 98-0660, p. 4 (LaApp. 1 Cir. 12/22/00), 779 So.2d 910, 913-914.

It is well settled that summary judgment should only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue of fact and that the mover is entitled to judgment as a matter of law. Summary judgment is a favored procedure and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966; Lorraine v. Nolty J. Theriot, Inc., 98-0479, p. 5 (La.App. 1 Cir. 4/1/99), 729 So.2d 1160, 1162, writ denied, 99-1251 (La.6/18/99), 745 So.2d 30.

If the moving party proves that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the nonmoving party must produce factual support sufficient to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(C)(2). If the nonmoving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. La. C.C.P. arts. 966 and 967.

In 1991, the legislature amended La. R.S. 22:1406(D)(l)(f) to mandate “miss and run” coverage under limited circumstances. Prior to that time, the legislature did not require insurance companies who sold uninsured motorist policies to include coverage for “miss and run” accidents. Thibodeaux v. Doe, 602 So.2d 1076, 1079 (La.App. 1 Cir.), writ denied, 605 So.2d 1377 (La.1992).

However, the injured party bears the burden of proving that this “miss and run” accident occurred. Eudy v. State Farm Mutual Automobile Insurance Company, 620 So.2d 405, 408 (La.App. 1 Cir.), unit denied, 625 So.2d 1041 (La.1993).

Louisiana Revised Statute 22:1406(D)(l)(f) provides:

Uninsured motorist-coverage shall include coverage for bodily injury arising out of a motor vehicle accident caused by an automobile which has no physical [86]*86contact with the injured party or with a vehicle which the injured party is occupying at the time of the accident, provided that the injured party bears the burden of proving, by an independent and disinterested witness, that the injury was the result of the actions of the driver of another vehicle whose identity is unknown or who is uninsured or un-derinsured.

The language of National’s policy regarding uninsured motorist coverage follows closely the language of La. R.S. 22:1406(D)(l)(f):

If there is no physical contact with the hit-and-run vehicle, the “insured” must show, by an independent and disinterested witness, that the “bodily injury” was the result of the actions of an unidentified motorist.

National’s motion for summary judgment alleged that there was no physical contact with a hit-and-run vehicle and Sidney Wheat could not prove by an independent and disinterested witness that his injuries were the result of the actions of an unidentified motorist.

In opposition to National’s motion for summary judgment, Sidney Wheat offered the affidavit of Trooper Clay Smith, in which Smith stated that his investigation revealed that the cause of the accident was a transmission left in the roadway by another vehicle. Trooper Smith pointed out that the transmission did not come from Wheat’s vehicle.

|fiIn granting National’s motion for summary judgment, the trial court found that Pinkney v. Progressive Specialty Insurance Company, 597 So.2d 1168 (La.App. 1 Cir.1992), was controlling, and interpreted Pinkney as requiring that an independent and disinterested witness actually see what caused the accident, as opposed to coming onto the scene later and determining the cause of the accident. The court held that because Trooper Smith did not actually see Wheat’s vehicle strike the transmission, the requirements of La. R.S. 22:1406(D)(l)(f) and the policy were not satisfied.

In Pinkney, an insured brought an action against his uninsured motorist carrier, seeking to recover for injuries he received when he swerved his motorcycle to avoid a log that had apparently fallen from an unknown vehicle onto the roadway. At trial, Pinkney presented the testimony of the driver of a vehicle traveling two cars behind him at the time of the accident. That driver testified that the first thing he saw at the time of the accident was Pink-ney’s airborne motorcycle. After swerving to avoid hitting Pinkney or anything else, the driver saw the log, which was still rolling, in the roadway. The driver testified that he remembered seeing a truck several hundred yards ahead of Pinkney carrying some trash, but he did not see the log come off of that truck. The trial court found that it was more probable than not that the log came from a vehicle because that portion of the interstate was elevated, with no overhanging trees, and the only method of pedestrian access to that area would be for someone to walk up an exit ramp approximately one-half mile away. On appeal, the first circuit held that the trial court’s factual finding that the log came from a vehicle, combined with the independent, disinterested testimony of the driver of the vehicle traveling behind Pinkney |7that he saw the motorcycle in the air and then the log rolling on the roadway, satisfied the requirements for the uninsured motorist coverage.1 Id.

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868 So. 2d 83, 2003 La. App. LEXIS 3063, 2003 WL 22519665, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wheat-v-wheat-lactapp-2003.