Pesson v. Reynolds11/13/1998
PESSON v. REYNOLDS, 97 0150 (La.App. 1 Cir. 11/13/98); 727 So.2d 507
Dissenting Opinion of Judge Guidry December 9, 1998.
Rehearing Denied February 26, 1999.
In this personal injury action, the defendant, the State of Louisiana through the Department of Transportation and Development, appeals from the trial court's finding of liability and assessment of damages.
FACTS
On July 2, 1993, at approximately 11:20 p.m., Anna Pesson (Mrs. Pesson) was driving her 1990 Ford Probe eastbound on U.S. Highway 90 (Hwy. 90) in Morgan City, Louisiana, en route to her home in Bayou L'Ourse. Mrs. Pesson was traveling alone and had just attended a birthday party for her husband's uncle in Bayou Pigeon. Upon approaching the intersection of Hwy. 90 and Aycock Street, Mrs. Pesson collided with the rear portion of an unloaded lowboy trailer, which was attached to a tractor driven by Jess Reynolds, III (Mr. Reynolds). Mr. Reynolds was in the course and scope of his employment with Patterson Truck Line, Inc. and was headed to Ville Platte, Louisiana, to pick up a forklift. At the time of the collision, Mr. Reynolds was making a left turn from Aycock Street into the westbound lane of Hwy. 90.
Following the accident, Mrs. Pesson was taken to Lakewood Hospital in Morgan City, Louisiana, and then transferred to Charity Hospital in New Orleans for treatment. As a result of the accident, Mrs. Pesson suffered severe injuries.
PROCEDURAL HISTORY
On August 6, 1993, Mrs. Pesson, her husband, Raymond Pesson, Jr. (Mr. Pesson), and their minor children, Raymond Pesson, III and Jasmine Pesson (collectively referred to as "plaintiffs"), filed a petition for damages, naming as defendants Mr. Reynolds; his employer , Patterson Truck Line, Inc.; and its insurer, Insurance Company of North America (collectively referred to as "defendants"). In their petition, plaintiffs alleged that the sole and proximate cause of the accident was the negligence of Mr. Reynolds. On September 10, 1993, defendants filed an answer, generally denying plaintiffs' allegations. The defendants also asserted the comparative fault of Mrs. Pesson.
On November 2, 1994, Excess Underwriters intervened in the lawsuit, alleging that it issued a policy of excess insurance to Patterson Truck Line, Inc. and, because of the magnitude of the claimed damages, it wished to intervene in the lawsuit to oppose plaintiffs' claims. In addition, Excess Underwriters filed a third party demand, naming as a third party defendant, the State of Louisiana, through the Department of Transportation and Development (DOTD). The third party demand alleged DOTD was negligent and strictly liable for plaintiffs' injuries because the intersection of Hwy. 90 and Aycock Street was unreasonably dangerous. Excess Underwriters also alleged that if Excess Underwriters had to pay damages, then it was entitled to indemnification and/or contribution from DOTD. Defendants then filed a supplemental and amending answer to the petition, also affirmatively alleging the fault of DOTD. On November 16, 1994, plaintiffs filed a supplemental and amending petition, naming Excess Underwriters as an additional defendant. Excess Underwriters filed an answer, generally denying plaintiffs' allegations and alleging the comparative fault of Mrs. Pesson.
Mr. and Mrs. Pesson, individually and on behalf of their minor children, entered into a settlement agreement with CIGNA/Insurance Company of North America, Mr. Reynolds, and Patterson Truck Line, Inc. This settlement consisted of $1,500,000 (the limits of the insurance policy) paid to the Pessons by CIGNA/Insuranee Company of North America, and $500,000 (the ded
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