Robin Matthews VS Shelter Mutual Insurance Company (UM)
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 0640 ROBIN MATTHEWS 1J f tIIW VS SHELTER MUTUAL INSURANCE COMPANY UM JUDGMENT RENDERED FEBRUARY 9 2007 ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT DOCKET NUMBER 524 434 DIVISION H PARISH OF EAST BATON ROUGE STATE OF LOUISIANA HONORABLE WILLIAM A MORVANT JUDGE KEVIN PATRICK MONAHAN BATON ROUGE LA COUNSEL FOR PLAINTIFF APPELLANT ROBIN MATTHEWS BRENT E KINCHEN COUNSEL FOR DEFENDANT APPELLEE JONATHAN D MAYEUX SHELTER MUTUAL INSURANCE COMPANY BATON ROUGE LA BEFORE CARTER C J WHIPPLE AND MCDONALD JJ MCDONALD J The issue in this a miss and case accident run and is whether on person who heard a her cellular phone heard glass popping as an independent and disinterested witness La R S 22 The on 55 breaking plaintiff Robin Matthews Company automobile coverage was s to Ms Matthews asserted that highway causing not under the facts of this injured in an I 55 attempted her to resulting in her injuries swerve Highway 1 55 Shelter Mutual policy a an unknown vehicle to merge in her favor of to independent to avoid a begin rolling without warning cause of the accident and she was prayed the for against Shelter Mutual was no petition and thereafter filed was entitled to judgment Ms Matthews actions Without such testimony a motion for as a matter of genuine issue of fact concerning the absence of an and disinterested witness that could offer any were the result of the actions of a testimony required by La R S 22 opposed the motion for hearing she entered into evidence 2 not 1 680 f summary among other that phantom driver Shelter Mutual asserted Ms Matthews could her burden of proof as Matthews in the into the left hand lane of the She asserted that the judgment asserting that it law because there traveling left off I 55 into the median Shelter Mutual answered the Ms on against negligence of the driver of the unknown vehicle meet case automobile accident which had issued her collision and that this caused her vehicle summary damaged qualifies liability insurance that provided underinsured uninsured motorist right hand lane of judgment and also the accident for purposes of Copiah County Mississippi Shelter Mutual driver describe happened car was Ms Matthews filed suit mile marker 72 Insurance the driver 1 680 f We find that she does November 2 2003 in the near as it as a judgment At the things her deposition and the affidavit of Darlene Bourgeois that she the was talking on chatting next to hers with Ms began to phone with Bourgeois what she on the was the a Matthews screamed Bourgeois as as she white minivan in the lane that she an talking was to to Ms fearfully describe unknown vehicle traveling in the carelessly merging into the left hand lane where Ms traveling was phone she states deposition that phone when Ms Matthews began was Ms good friend states Bourgeois witnessing stating than right hand lane Matthews on deposition drive into her lane The affidavit of Ms Matthews her Ms Matthews testified in her the accident occUlTed was In Ms Matthews Bourgeois that white Matthews screamed van is Oh my God states in coming oh her affidavit that Ms my G od Then Ms again Ms and that Ms Bourgeois heard cracking popping and glass breaking After qualify as hearing a an granting the for judgment Ms it occurred she can occurred and the offer injuries Bourgeois did accident and ruled in favor of Bourgeois is just simply not in That there nothing were as an was an accident independent a no position to say doubt but how witness that the accident sustained because of the actions of the driver appealing that judgment and makes two assignments error 1 not van Ms Matthews is of to the Ms summary judgment The trial court stated in its how the accident occurred of the white court found that independent witness Shelter Mutual reasons the trial The Trial recognize Darlene Bourgeois independent disinterested witness capable of establishing that the injuries sustained by Robin Matthews were the result of the actions of the white van whose identity is unknown in accordance with LSA R S 22 1 680 f as Court erred in an 3 failing to 2 The Trial Court erred in and disinterested witness cause requiring Appellant independent the unequivocally to prove s of the motor vehicle accident THE STANDARD OF REVIEW Appellate review summary judgments de courts criteria that govern the trial judgment is appropriate court Schroeder shall be any fOlihwith if the and admissions show that there is mover is entitled on pleadings file together genuine issue no to judgment matter as a a same summary Board of Supervisors of Louisiana v University 591 So 2d 342 345 La 1991 interrogatories under the consideration of whether s State rendered novo The judgment sought depositions with supporting as to material fact of law La C C P to answers affidavits if and that the art 966 B THE APPLICABLE STATUTE Louisiana Revised Statute 22 1 680 f provides Uninsured motorist bodily injury arising coverage shall include coverage for out of a motor vehicle accident caused by physical contact 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 an automobile which has witness that the injury no was the result of the actions of the driver of another vehicle whose uninsured or identity is unknown or who is underinsured ANALYSIS Ms Matthews asserts that Ms independent uninterested witness 22 1 680 f because she occurred and as to as meets as required under describing the accident Wheat 2003 0173 the definition of La was App La R S the accident occurring 1 Cir an 7 11 03 as it Ms 868 support for her argument In Wheat the him v the accident heard Ms Matthews she heard the noise Matthews cites Wheat So 2d 83 to Bourgeois plaintiff struck an object lose control of his vehicle leave the 4 in the roadway which caused roadway and sustain injmy The witness supplied by the plaintiff was an investigating police officer discovered that the plaintiff s vehicle had struck in the road Plaintiff filed suit a transmission that who was left against his automobile liability insurer after it denied uninsured motorist coverage for the accident The insurer in Wheat filed motion for summary judgment a present court that an asserting that the plaintiff could independent and disinterested witness granted the motion for judgment analyzing La On R S Acts 2003 No 456 3 as The trial judgment and the plaintiff appealed this comi which was appeal 22 1406 S summary to the accident reversed the trial redesignated as court ruling s La R S 22 680 follows T here is nothing in the language of the statute requiring that the witness actually see the accident occur The statute only requires that the claimant prove by an independent and disinterested witness that the injury was the result of the actions of the driver of another vehicle Trooper Clay Smith was an independent and disinterested witness Trooper Smith stated in his affidavit that his investigation revealed that the transmission left in the roadway caused the accident involving the Wheat vehicle Trooper Smith did not get this information from Sidney Wheat in fact Wheat testified that he thought he had been struck from behind by another vehicle until Trooper Smith told him that he had struck a transmission left on the road Additionally Trooper Smith does not stand to benefit from proof that the accident was caused by another vehicle dropping a transmission in the roadway Finally although Trooper Smith did not see the vehicle strike the transmission he did view the accident scene soon thereafter and was able to conclude that the Wheat vehicle had struck the transmission It is clear that the transmission found in the case was left there by another vehicle that the transmission was roadway in this Trooper Smith testified not from the Wheat vehicle transmission is much too and a heavy for pedestrian to have carried roadway only reasonable explanation is that the transmission was dropped on the road by another vehicle Adding to the likelihood of this theOlY is the fact that there is a junkyard located a short distance away from the spot where the transmission was found Thus Trooper Smith is an onto the independent a The and disinterested witness whose 5 not testimony that the by accident was caused left in the road by Wheat requirements striking injuries to s court transmission the and the insurance statute erred in a driver of This satisfies the identity is unknown of both the therefore the trial vehicle Wheat connects another vehicle whose s granting National and policy s motion for summary judgment Wheat Wheat 2003 0173 p 7 9 v Shelter Mutual relies upon the Mutual Automobile 12 6 95 665 So 2d 661 friend case not make the driving did not stop a ditch to avoid a a witness 2 App phone call Cir to a the accident to Highway 173 in Caddo Parish oncoming Mrs Jackson backed her She called her insurance home an on friend State Farm v La 27 611 support of its argument that accident does an allegedly veered into car in of Jackson Company Mrs Jackson while during In that Insurance case car car out and was injured The of the ditch and drove agent and then called several friends to tell them about the accident After her insurer refused her claim under her UM Mrs policy summary witness Jackson sued her insurer judgment asserting she had to 22 1406 D the accident l f now as La R S 22 The court held individuals are l 680 f appealed friends she called after the accident that assertion the no a motion for independent and disinterested required by her insurance policy and of the insurer and Mrs Jackson to The insurer filed were The trial On court La luled in favor appeal she asserted that the witnesses to the accident Contrary that not independent because that information the only concerning the accident they possess is controlled by what Jackson relayed to them Moreover these individuals are not witnesses because they did not personally observe the accident Perhaps these individuals were and are witnesses to Jackson s condition following the accident but they certainly did not witness the cause of her injuries Jackson 27 611 at pA 665 So 2d at 664 6 RS Ms Jackson Matthews argues that her case case because in Jackson the plaintiff spoke accident occUlTed which gave her time she case her notes be differentiated from the can statements decide what to Ms to contemporaneously with the accident to her and to friends after the In her tell them Bourgeois thus her made were have statements heightened credibility While we agree that the statements made were made in the Jackson case Bourgeois as the accident these version of the accident statements While it may be Matthews to take evasive action oveneacted when the white did van thereafter and accident The to come her hitting scene nor true that the white van true that Ms Matthews Ms Bourgeois did she view the accident conclusion case determine that the was forced Ms to the made an as cause left in the scene cause a transmission in the road until the soon of the independent of the accident roadway investigating was In fact the plaintiff in Wheat believed he had been hit from behind and did he had hit to Ms based upon Ms Matthews in the Wheat transmission that a were independent to Matthews happening unlike the phone calls it also may be investigating officer analysis of the accident the vehicle own Ms simply swerved toward her view the accident herself not was by not know officer told him about it In this by case Ms Matthews court Ms Ms as Bourgeois to can only rely on information how the accident occuned As found Bourgeois unlike the investigating officer in independent position that Ms Matthews another vehicle as to say injuries how the accident occuned were required by La given to her by the trial Wheat is not in She cannot an testify the result of the actions of the driver of R S 22 7 l 680 f Thus we affirm the trial in favor of Shelter Mutual court judgment granting summary Ms Matthews is cast with costs AFFIRMED 8 judgment
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