United States District Court,

E.D. Tennessee.

Richard Lynn HENSLEY

v.

Anthony MILES, et al.

May 18, 2005.

MEMORANDUM OPINION AND ORDER

GREER, J.

This declaratory judgment action is before the Court for consideration of the objections of the defendant, Arkansas Property and Casualty Guaranty Fund (“Arkansas Fund”) [Doc. 155] to the Report and Recommendation of the United States Magistrate Judge which recommends that the motion for summary judgment filed by the plaintiff be granted and that the motion for summary judgment filed by the defendant Arkansas Fund be denied. [Doc. 154] [FN1]

FN1. A Supplemental Report and Recommendation of the United States Magistrate Judge was filed on January 26, 2005 [Doc. 161] which granted the motion of Arkansas Property and Casualty Guaranty Fund to withdraw any defense that the North Carolina Guaranty Fund was the proper fund against which plaintiff must pursue his claim in the event the Legion policy afforded coverage. Thus, the question of whether or not the Legion policy of insurance afforded uninsured/underinsured motorist coverage to the plaintiff is the only question to be resolved in these motions for summary judgment.

Arkansas Fund is a statutorily created entity which is responsible for payment of claims of the insureds, including the plaintiff, of Legion Insurance Company (“Legion”), which is insolvent, if those claims are covered claims as defined by Ark.Code Ann. § 23-90-102. In other words, as pointed out by the Magistrate Judge, the Arkansas Fund stands in Legion’s corporate shoes as far as its basic liability to the plaintiff is concerned. The parties agree that there are no issues of fact in dispute in this matter and that the case is, therefore, ripe for resolution by summary judgment. The sole issue is whether or not the Legion policy of insurance at issue in this case afforded uninsured/underinsured coverage to the plaintiff in this case.

28 U.S.C. § 636(b)(1) provides, in pertinent part:

Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed finding or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the finding or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.

This Court’s de novo review of the Magistrate Judge’s report is both statutorily and constitutionally required. United States v.. Worley, 193 F.3d 380, 383-384 (6th Cir.1999); United States v. Shami, 754 F.2d 670, 672 (6th Cir.1985). After careful consideration of the record as a whole, the Report and Recommendation of the Magistrate Judge will be adopted and approved for the reasons set forth below.

FACTS

On July 5, 2000, the plaintiff, Richard Lynn Henlsey (“Hensley”) and the defendant, Anthony Miles (“Miles”), were involved in an automobile accident in Sullivan County, Tennessee. At the time of the accident, Hensley was operating a tractor-trailer that was leased to Fikes Trucking Company, Inc. (“Fikes”) of Arkansas and was hauling a load of cargo for Fikes. [FN2] Miles was operating a rented vehicle owned and self-insured by Enterprise Rent-A-Car (“Enterprise”) when he lost control, crossed the median between the north bound and south bound lanes of Interstate 81 and crashed into Mr. Hensley’s truck. Miles was clearly at fault in the accident and Mr. Hensley was seriously injured. A tort action was ultimately filed in this Court (Civil action No. 2:01-CV-124) and remains pending. Miles had no insurance.

FN2. The title owner of the tractor-trailer was Jo Hartley, with whom Hensley was a partner in a business known as H & H Logistics.

Legion issued policy of insurance no. CA112021234 (“the Legion policy”) to Fikes Trucking. The Legion policy included uninsured /underinsured motorist coverage and Hensley was a covered insured in light of the circumstances existing in this case. The Arkansas Fund makes two arguments that the Legion policy affords no coverage to Hensley, however. First, the Arkansas Fund argues that the Legion policy excluded any coverage while the truck was being used “to carry property in any business”. Second, the Arkansas Fund argues that even if the Legion policy did cover the accident, nevertheless the uninsured motorist coverage was not triggered under the terms of the policy.

In pertinent part, a change endorsement to the Legion policy dated October 1, 1991, reads as follows:

Liability coverage for a covered “auto” described in the Schedule is changed as follows:

1. The following exclusions are added: This insurance does not apply to:

a. A covered “auto” while used to carry property in any business.

b. A covered “auto” while used in the business of anyone to whom the “auto” is rented.

Uninsured/underinsured motorist coverage in the Legion policy is provided by another change endorsement, and the pertinent parts read as follows:

A. COVERAGE

1. We will pay all sums the “insured” is legally entitled to recover as compensatory damages from the owner or driver of an “uninsured motor vehicle” or an “underinsured motor vehicle”. The damages must result from “bodily injury” sustained by the “insured” caused by an “accident”. The owner’s or driver’s liability for these damages must result from the ownership, maintenance or use of the “uninsured motor vehicle” or the “underinsured motor vehicle”.

….

F. ADDITIONAL DEFINITIONS

As used in this endorsement:

….

3. “Uninsured motor vehicle” means a land motor vehicle or trailer:

a. For which no liability bond or policy at the time of an “accident” provides at least the amounts required by the applicable law where a covered “auto” is principally garaged;

b. For which an insuring or bonding company denies coverage or is or becomes insolvent; or

c. That is a hit-and-run vehicle and neither the driver nor owner can be identified. The vehicle must hit an “insured”, a covered “auto” or a vehicle an “insured” is “occupying”.

However, “uninsured motor vehicle” does not include any vehicle:

(1) Owned or operated by a self insurer under any applicable motor vehicle law, except a self insurer who is or becomes insolvent and cannot provide the amounts required by that motor vehicle law;….

4. “Underinsured motor vehicle” means a land motor vehicle or trailer for which the sum of all liability bonds or policies at the time of an “accident” provides a limit that is less than the amount an “insured” is legally entitled to recover as damages caused by the “accident”;

However, “underinsured motor vehicle” does not include any vehicle:

a. Owned or operated by a self insurer under any applicable motor vehicle law;

….

Objections

Defendant Arkansas Fund objects to the recommendation of the United States Magistrate Judge to find uninsured motorist coverage on behalf of Hensley under the Legion policy on the basis that his decision is “contrary to Tennessee statutes, the clear language of the policy, and directly conflicts with a previous ruling of the District Court in this case.” The Court will deal with each of these issues separately.

The Arkansas Fund’s argument that the Magistrate Judge’s Report and Recommendation is Contrary to Tennessee Statutes

As an initial matter, the Arkansas Fund contends that the Tennessee Uninsured Motorist statute precludes coverage for Hensley under the Legion policy because the owner of the vehicle operated by Miles (Enterprise) was a self insured entity. Hensley argues, on the other hand, that the Tennessee statute is irrelevant and that Arkansas law should be applied in deciding this dispute since the policy of insurance was issued in Arkansas, a matter about which there is no dispute. [FN3] This choice of law question was not specifically discussed by the Magistrate Judge and it is unclear whether the Magistrate Judge applied Tennessee or Arkansas law, although it does not appear that the Magistrate Judge relied on any language of the Tennessee statute.

FN3. The tractor-trailer operated by Hensley was titled in the Commonwealth of Virgina and garaged in North Carolina. Hensley was a resident of North Carolina. None of these facts affect the choice of law questions.

In a diversity action brought pursuant to 28 U.S.C. § 1332, this District Court, sitting in Tennessee, must apply the substantive law, including the choice of law rules, of the forum state, that is, Tennessee. Hayes v. Equitable Energy RES Co., 266 F.3d 560, 566 (6th Cir.2001) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1447 (1941)). It is the settled rule in Tennessee that the construction and validity of contracts, including insurance policies, are governed by the law of the place where the contract was made. Great American Insurance Co. v. Hartford, 519 S.W.2d 579 (1975); Ohio Casualty v. Travelers, 493 S.W.2d 465 (1973); Karr v. American Universal Ins. Co., 341 F.2d 220 (6th Cir.1965). It is undisputed that the policy of insurance at issue in this case was issued and delivered in the State of Arkansas; therefore, it is the law of Arkansas and not the law of Tennessee that must be applied to the interpretation of the Legion policy in this case and the Tennessee statute cited by the Arkansas Fund is simply irrelevant.

The Arkansas Fund’s argument that the Legion policy excludes coverage while the truck was used to “to carry property in any business”

The Fund’s argument in this regard can be “disposed of rather quickly” as indicated by the Magistrate Judge. It is undenied that, at the time of the accident involving Hensley and Miles, Hensley was carrying cargo on behalf of Fikes. It is equally undisputed that the change endorsement set forth above, by its own clear and unambiguous terms, was limited to liability coverage, not uninsured motorist coverage. The exclusion of the policy relating to “carry [ing] property in any business” is inapplicable to the uninsured motorist coverage of the Legion policy. Thus, the Fund’s argument in this regard is without merit.

The Arkansas Fund’s argument that the vehicle operated by Miles and owned by Enterprise was excluded from the definition of an “uninsured motor vehicle” in the Legion policy

Having determined that Arkansas law applies to the interpretation of the Legion policy, the Court’s initial point of inquiry is the statutory provisions of the Arkansas Code related to uninsured motor vehicles. The uninsured motor vehicle law of the State of Arkansas is contained in Title 23, Chapter 89 of the Arkansas Code. More specifically, Ark.Code Ann. § 23-89-401 provides that an “… “uninsured motor vehicle” shall be deemed to include, subject to the terms and conditions of the coverage, an insured motor vehicle when the liability insurer thereof is unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvency.” This statutory provision is of only minimal assistance to the Court in interpreting the Legion policy other than that it clearly establishes a legislative intent in Arkansas that the terms of uninsured motorist coverage should cover situations where the insurer is unable to make payment with respect to the legal liability of its insured because of insolvency. No other provision of the Arkansas Code appears to have any application to the situation raised in this case.

Given that the Arkansas statute is not dispositive of the question raised herein, the question of whether or not the Legion policy precludes coverage to Hensley in this case because the owner of the vehicle driven by Miles (Enterprise) was a self insured entity not legally liable for Miles’ actions is a matter of interpretation of the provisions of the Legion policy. The question is also apparently one of first impression as no Arkansas case interpreting the precise policy provisions at issue in this matter has been found by this Court. Several decisions of the Arkansas courts are, however, helpful in interpreting the provisions of this policy.

The Arkansas courts have established several general rules of construction which apply to the interpretation of insurance contracts issued in the State of Arkansas. It appears to be clearly settled Arkansas law that an insurer may contract with its insured upon whatever terms the parties may agree upon which are not contrary to statute or public policy. Aetna Ins. Co. v. Smith, 263 Ark. 849, 568 S.W.2d 11 (1978). Insurance policies are, however, to be strictly construed against the insurer. Smith v. Prudential Property and Casualty Ins. Co., 340 Ark. 335, 10 S.W.3d 846 (2000); M.F.A. Mutual Ins. Co. v. McKinley, 245 Ark. 326, 432 S.W.2d 484 (1968). If a reasonable construction would justify recovery under an insurance policy, it is the duty of the court to give that construction to the policy. Smith at 10 S.W.3d 850. Said another way, the Arkansas courts have established a cardinal rule of insurance law that a policy of insurance is to be construed liberally in favor of the insured and strictly against the insurer or, as more fully stated, if the language employed is ambiguous, where there is doubt or uncertainty as to its meaning and it is fairly susceptible of two interpretations, one favorable to the insured and the other favorable to the insurer, the former will be adopted. Nationwide Mutual Ins. Co. v. Worthey, 314 Ark. 185, 861 S.W.2d 307 (1993); Drummond Citizens Ins. v. Sergeant, 266 Ark. 611, 588 S.W.2d 419 (1979).

In reviewing an insurance policy, when the terms of the policy are clear, the language in the policy controls. Columbia Mut. Ins. Co. v. Home Mut. Fire Ins. Co., 74 Ark.App. 166, 47 S.W.3d 909 (2001) If a policy provision is unambiguous, and only one reasonable interpretation is possible, the court will give effect to the plain language of the policy without resorting to rules of construction; it is the duty of the courts to give effect to the plain wording of the policy. Smith v. Southern Farm Bureau Cas. Ins. Co., 353 Ark. 188, 114 S.W.3d 205 (2003) A policy will not be interpreted to bind the insurer to a risk that is plainly excluded and for which it was not paid. First Financial Ins. Co. v. National Indemnity Co., 49 Ark.App. 115, 898 S.W.2d 63 (1995). If, however, the policy language is ambiguous, and thus susceptible to more than one reasonable interpretation, the policy will be construed liberally in favor of the insured and strictly against the insurer. Smith, supra. The language of an insurance policy is to be construed in its plain, ordinary and popular sense. The fact that a term is not defined in a policy does not automatically render it ambiguous. As a guideline of contract interpretation, the different clauses of a contract must be read together and the contract should be construed so that all parts harmonize. Id. Language is ambiguous if there is doubt or uncertainty as to its meaning, and it is fairly susceptible to more than one reasonable interpretation. Gawrieh v. Scottsdale Ins. Co., 83 Ark.App. 59, 117 S.W.3d 634 (2003); Continental Cas. Co. v. Davidson, 250 Ark. 35, 463 S.W.2d 652 (1971).

With respect to uninsured motorist coverage, the plaintiff must show that both the tortfeasor and the vehicle driven by the tortfeasor are uninsured. Home Ins. Co. v. Harwell, 263 Ark. 884, 568 S.W.2d 17 (1978)(vehicle); Southern Farm Bureau Cas. Ins. Co. v. Gottsponer, 245 Ark. 735, 434 S.W.2d 280 (1968) (driver). Likewise, uninsured motorist provisions of an insurance policy must be viewed in light of the purpose of the uninsured motorist statute which is to require that the same amount of coverage be available to one injured by the negligence of an uninsured motorist as would be available had the motorist had the minimum coverage necessary to satisfy the Arkansas Motor Vehicle Safety Responsibility Act, or, in other words, had the motorist been covered by appropriate liability insurance. Aetna Ins. Co. v. Smith, 263 Ark. 849, 568 S.W.2d 11 (1978)

With these rules of construction in mind, this Court now turns to an examination of the Legion policy in light of the factual circumstances existing in this case. It is undisputed that Miles, the driver of the automobile which collided with Hensley, was uninsured. The vehicle he was driving, however, was self insured by Enterprise and the Arkansas Fund argues that, because the Enterprise vehicle was self insured, Legion is not obligated to provide uninsured motorist coverage under the clear terms of its policy. As noted by the Magistrate Judge, Enterprise has been dismissed from the underlying tort action based upon a finding that it has no duty or legal liability to compensate Hensley for the tortious action of Miles. The Magistrate Judge found, therefore, that Enterprise’s self insurance was “utterly irrelevant” and that there was and is no insurance coverage available to Miles, thus triggering the uninsured motorist coverage of the Legion policy. For the reasons set forth below, this Court must agree.

The Legion policy clearly obligates Legion to pay all sums Hensley is legally entitled to recover as compensatory damages from the owner or driver of an uninsured motor vehicle or an underinsured motor vehicle where bodily injury is sustained as the result of an accident. The owner’s or driver’s liability for these damages must result from the ownership, maintenance or use of the uninsured or underinsured motor vehicle. Under the terms of the coverage, therefore, the only question to be decided is whether or not the motor vehicle driven by Miles on the date of his accident with Hensley was an uninsured motor vehicle.

The policy defines an uninsured motor vehicle as a vehicle (a) for which no “liability bond or policy” is in effect at the time of the accident, (b) for which an insuring or bonding company denies coverage or becomes insolvent, or (c) there is a hit-and-run vehicle and neither the driver nor owner can be identified. Absent any further definitions or exclusions from coverage, the Legion policy would clearly afford coverage to Hensley under the facts and circumstances of this case. Therein the problem arises, however, because the policy further provides that an “uninsured motor vehicle” does not include any vehicle “owned or operated by a self-insurer under any applicable motor vehicle law, except a self-insurer who is or becomes insolvent and cannot provide the amounts required by that motor vehicle law”. The policy further contains a similar exclusion from the definition of “underinsured motor vehicle”; however, the exclusion is worded significantly differently in that it appears, by its language, to exclude all motor vehicles owned or operated by a self insured, not just those self insurers who are solvent and can provide the amounts of liability coverage required. [FN4]

FN4. It appears that the purpose of the self-insurer language of the policy, in the first instance, was to assure that a self-insured vehicle could not automatically be considered uninsured simply because the self-insurer was not an insurance company and no insurance policy had been issued for the vehicle. No reason exists to treat a vehicle covered by a policy of insurance issued by an insurance company differently from a vehicle which is self-insured for the purpose of determining its status as an uninsured motor vehicle.

The Arkansas Fund argues that because the vehicle operated by Miles was owned by Enterprise, a self insurer, the vehicle operated by Miles was not an uninsured motor vehicle under the clear language of the policy and the Legion uninsured motorist coverage, therefore, does not apply. The language of the policy, however, is neither as clear nor unambiguous as the Arkansas Fund argues. As the Magistrate Judge appropriately asks: “What is the difference between insurance that never existed and insurance that is unavailable, or inapplicable? The answer, obviously, is that there is no difference.” The Magistrate Judge determined that his conclusion was confirmed by paragraph (F)(3)(b) of the Legion change endorsement which provides that an uninsured motor vehicle includes any vehicle for which an insuring or bonding company denies coverage or becomes insolvent. In the first instance, the uninsured motorist coverage of the Legion policy would be available to Hensley if Enterprise had been insured by an insurance company which had issued a policy of liability insurance but the company had then denied coverage under the policy. Under the Arkansas Fund’s argument, the self insurer, Enterprise, would be excluded from the definition of an uninsured motor vehicle under the same circumstances and the Legion policy would afford no coverage. When viewing the uninsured motorist provisions of the Legion policy in total, it is clear that the Legion policy contemplated the possibility that its uninsured motorist coverage would apply if the insuring entity became insolvent or denied coverage to its insured. By the language of the Legion policy the exclusion of a self insured from the definition of uninsured motor vehicle does not apply to a self insurer who becomes insolvent and cannot provide the required coverage. When read together, the policy provisions clearly establish that Legion intended to provide coverage both in the situation where the insuring entity became insolvent and in the situation where the insuring entity denied coverage, regardless of whether the insuring entity is an insurance company or a self-insurer. In fact, courts around the country are almost unanimous in equating insolvency of an insurer with a denial of coverage. See, for instance Superior Risk Ins. Co. v. Dudas, 38 Ohio App.2d 64, 312 N.E.2d 534 (1974); Katz v. American Motorist Ins. Co., 244 Cal.App.2d 886, 53 Cal.Rptr. 669 (1966); Fireman’s Ins. Co. v. Diskin, 255 Cal.App.2d 502, 63 Cal.Rptr. 177 (1967); Bartholomew v. Glen Falls Ins. Co., 241 So.2d 698 (Fla.App.1970); Farkas v. Hartford Accident & Indemnity Co., 285 Minn. 324, 173 N.W.2d 21 (1969); Seabaugh v. Sisk, 413 S.W.2d 602 (Mo.App.1967); General Accident v. Shasky, 266 Or. 312, 512 P.2d at 987 (1973); Murray v. Montana Ins. Guaranty Assoc., 175 Mont. 220, 573 P.2d 196 (1997); Travis v. General Accident Group, 31 A.D.2d 20, 294 N.Y.S.2d 874 (1968).

This Court finds, therefore, that the clear and unambiguous language of the Legion policy itself contemplates uninsured motorist coverage both when the insuring entity, whether an insurance company or a self-insurer, becomes insolvent and when the insuring entity denies coverage to its insured. Furthermore, even if the provisions of the policy are ambiguous and susceptible to both interpretations, this Court must interpret the policy in the way most favorable to Hensley. Likewise, to give effect to the exclusion in the policy as urged by the Arkansas Fund would deprive Hensley of the benefit of the purpose of the Arkansas uninsured motorist statute which is to provide a basic minimum coverage against the actions of financially irresponsible motorists. See Payne v. Farm Bureau Mutual Ins. Co. of Arkansas Inc., 298 Ark. 540, 768 S.W.2d 543 (1989).

Although the appellate courts of Arkansas have not been confronted with the specific policy language at issue in this case, this Court also believes that the Arkansas Fund’s interpretation of the policy provisions in this case might very well violate the public policy of the State of Arkansas and would certainly defeat the purposes for which the Arkansas uninsured motorist statute was enacted. Three cases illustrate the point.

In Glen R. Vaught v. State Farm Fire & Casualty Co., 413 F.2d 539 (8th Cir.1969), the Eighth Circuit, applying Arkansas law, considered a case, the facts of which are remarkably similar to the facts in this case. In Vaught, the plaintiff was involved in an accident in which an automobile driven by him and a vehicle owned by the City of North Little Rock, driven by Joseph Roberts, an employee of the city, collided. Since neither the City of North Little Rock nor Roberts had insurance covering the vehicle, the plaintiff instituted a suit against the defendant, State Farm Fire & Casualty Company, under the terms of a State Farm policy which included coverage for uninsured automobiles but excluded automobiles owned by municipality from the term “uninsured automobiles.” The District Court held that the policy provision was contrary to the public policy of the State of Arkansas as set forth in its uninsured motorist statute and held the exclusion invalid. The District Court held:

The Arkansas statute requires coverage ‘for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles. * * * ‘ Under existing Arkansas law it is true that the plaintiff had no cause of action against the City of North Little Rock, the owner of the vehicle, but the plaintiff did have a cause of action against the operator of the uninsured vehicle, Joseph Roberts. To give effect to the exclusion in the policy would deprive plaintiff of the benefit of the statute, although the collision was with one who is legally liable, and one who was driving an uninsured vehicle at the time of the accident.

The obvious intent of the Legislature in enacting the Uninsured Motorist Act was to provide insurance to policy holders such as plaintiff Vaught against inadequate compensation for injuries in a collision with uninsured motorist vehicles at least to the extent provided by statute.

In the cases cited from other jurisdictions the courts have refused to allow limitations contained in the insurance policies to subvert the intent of the state statutes.

There does not appear to be any valid legal reason for the limited definition of ‘uninsured automobile’ contained in plaintiff Vaught’s policy. To allow such a special exception from coverage written into the insurance contract would defeat the purpose for which the statute was passed, and the court finds that the definition contained in Vaught’s policy … is void and of no effect.

Carter v. St. Paul Fire & Marine Ins. Co., 283 F.Supp. 384, 388 (D.Ark.1968); (consolidated in the District Court with Vaught v. State Farm Fire & Casualty Co.)

Stating that “we are convinced that if the Arkansas Supreme Court were faced with the question raised here that its opinion would be the same as that of the District Court,” the Eighth Circuit affirmed the District Court’s decision. This Court believes the same reasoning to be applicable in this case.

The second case is Robey v. Safeco Ins. Co. of America, 270 F.Supp. 473 (D.C.Ark.1967). In that case, the District Judge, applying Arkansas law, had before him the question of the legal effect of a policy provision contained in an uninsured motorist policy limiting liability where there was “other insurance.” Safeco had issued two different policies to the plaintiff insuring two separate vehicles and the policies were identical, with the exception of the amount of coverage, and both policies contained the “other insurance” exclusion. The plaintiff had recovered under the first policy but Safeco denied coverage on the second. The District Judge held the “other insurance” provisions in the Safeco policies to be invalid under Arkansas law.

The third case which is illustrative as to the public policy of the State of Arkansas is the Arkansas Supreme Court decision in State Farm Mutual Automobile Ins. Co. v. Cates, 261 Ark. 129, 546 S.W.2d 423 (1977). Facts in the case were relatively simple. Cates was injured when his vehicle was struck in the rear by a gravel truck driven by an employee of J.T. Allen. Cates suffered damages of at least $20,000.00 and, in a separate case, sued the driver and owner of the gravel truck and the owner’s company paid its policy limits. Louisiana Industries Inc., who paid J.T. Allen for hauling gravel, was joined in the suit. Its insurance company paid Cates $7,500.00 but in the settlement agreement denied that it was the employer of either Allen or the driver and recited that the settlement was a compromise of a doubtful and disputed claim. Cate’s insurance with State Farm provided for a maximum of $10,000.00 for personal injury damages resulting from an accident caused by an uninsured vehicle. When State Farm refused to pay Cates, arguing that the gravel truck was insured, or if not, the payment of $7,500.00 by Louisiana Industries should reduce its liability to zero, he sued under his uninsured motorist coverage. The Court framed its question and the answer to the question as follows:

“Therefore, the question is, did Louisiana Industries insurance cover the gravel truck? If it did, the truck would be insured. If not, the truck would be uninsured. Since the jury found that Dorathy (the driver) was not an agent or employee of Louisiana Industries, it follows that Louisiana Industries was not legally responsible for the use of the vehicle. Therefore, the truck was uninsured.”

The reasoning of all these cases clearly establishes that the public policy of Arkansas cannot be furthered by enforcing exclusions such as the one contained in the Legion policy. To do so would sabotage the purpose of the Arkansas uninsured motorist statute which is to provide a basic minimum coverage against the actions of financially irresponsible motorists.

The Fund’s argument that the ruling of the Magistrate Judge directly conflicts with a previous ruling of the District Court

The Fund accurately points out that this Court in a memorandum opinion entered March 9, 2004 dismissed GEICO Direct as a party to this declaratory judgment action based upon a policy of insurance it issued covering the personal vehicle of the plaintiff. The GEICO policy offered uninsured motorist coverage using language virtually identical to the Legion policy in defining an uninsured motor vehicle. This Court declared that “the vehicle owned by Enterprise that was involved in this accident is not uninsured for purposes of Tennessee or North Carolina law, or under the terms of the GEICO policy. As set forth earlier in this memorandum opinion, the Legion policy must be interpreted by applying the law of the State of Arkansas and a prior holding of this Court under either Tennessee or North Carolina law is simply irrelevant. Such holding has not become the law of this case with respect to whether or not the Legion policy affords coverage to the plaintiff.

CONCLUSION

For the reasons set forth above, it is hereby ORDERED that the Magistrate Judge’s Report and Recommendation [Doc. 161] is ADOPTED and APPROVED, that the motion for summary judgment filed by the plaintiff is GRANTED and the motion for summary judgment filed by the defendant, Arkansas Property and Casualty Guaranty Fund, is DENIED. It is specifically declared that the Legion policy which is the subject of this cause affords uninsured motorist coverage to the plaintiff and Hensley’s claim is a covered claim as defined by Ark.Code Ann. § 23-90-103.

Court of Appeal of Louisiana,

Third Circuit.

Joseph S. PROVOST, Jr. and Joanna D. Provost

v.

USA TRUCK, INC., et al.

May 4, 2005.

COOKS, Judge.

 

STATEMENT OF THE CASE

This case arises from a vehicular fatality which claimed the life of twenty-year old Jason Horace Provost, son of John and Joanna Provost. The Provosts filed a wrongful death claim against USA Truck, Inc. (USA Truck), owner of the 18-wheeler involved in the accident, and David Voss, its driver. Trial on the merits was held on January 5, 2004. The jury rendered a verdict awarding the sum of $75,000.00 each to John and Joanna for the death of their child. The jury assessed fault to USA Truck and David Voss in the amount of 25% and against Jason in the amount of 75%. After trial, the Provosts filed a Motion for Judgment Notwithstanding the Verdict. On April 12, 2004, the trial court granted the Provosts’ motion and increased the award of damages to each parent to $250,000.00. The trial court issued a judgment casting the Defendants with all court costs.

USA Truck and David Voss filed this appeal asserting several assignments of error. The Defendants contend the jury erred in finding them 25% at fault in causing the accident. Additionally, USA Truck and David Voss contend the trial court erred in granting a Judgment Notwithstanding the Verdict (JNOV) and awarding damages in the amount of $250,000.00 to each of Jason’s parents. The Provosts filed a cross-appeal arguing the jury erred in assessing Jason with 75% fault and USA Truck and David Voss with only 25% fault.

For the reasons assigned below, we affirm the decision of the trial court awarding Joseph and Joanna Provost $250,000.00 each for the death of their son. However, because we find overwhelming evidence in the record of gross negligence on the part of USA Truck and David Voss, we reverse the judgment of the trial court and find USA Truck and David Voss 75% at fault and Jason 25% at fault in causing this vehicular fatality.

STATEMENT OF THE FACTS

On July 1, 2001, at approximately 3:45 a.m., Jason was driving his 1993 Chevrolet pickup truck, easterly on Interstate 10, on his way home to Breaux Bridge. He had just left Lafayette where he dropped his best friend, John Sassou, off at his home. John testified Jason and he were together during the evening and when Jason left to travel home he was alert and unimpaired. In fact, the toxicology report indicated Jason was not intoxicated at the time of the accident. July 1, 2001 was a moonless night, “dark as hell”, and the stretch of interstate where the accident occurred was not illuminated and was deserted. When Jason approached interstate mile marker 107, he inexplicably drifted off the roadway, traveled approximately 155 feet on the shoulder and slammed into the back of a disabled USA Truck 18-wheeler which had been parked on the shoulder for several hours prior to the crash. Jason was killed instantly. John Provost described the horror of receiving news of his child’s death from State Troopers in the early morning hours of July 1, 2001:

I guess it was about 6:45 in the morning. There was a knock on the door. My wife got up. She thought it was him. She opened the door. I stayed in the bed. And I heard her scream. I got up and I looked in the hallway. I saw, you know, the State Police. I knew something was wrong. So they–they told me that Jason had been in an accident and got killed.

State Trooper Eric Burson arrived on the scene at approximately 4:06 a.m., along with members of the sheriff’s department, state police and fire department, to inspect the accident site and determine the cause of the fatality. When Trooper Burson arrived on the scene he saw Jason’s truck wedged underneath the 18-wheeler. His body had to be extricated using some sort of mechanical device. Trooper Burson noted that particular stretch of interstate did not have rumble strips to warn a drifting driver. Rumble strips have since been installed.

Trooper Burson inspected the 18-wheeler and found reflector strips on the side and rear of the trailer. He interviewed the driver of the 18-wheeler, David Voss, and determined Mr. Voss had left the T/A Center in Lafayette at approximately 12:30 a.m. and was on his way to the Pilot Station in Breaux Bridge when his truck broke down. Mr. Voss testified he had been having a history of mechanical problems with his truck and his air conditioning system had not been working for several days. He testified the truck broke down the day before in Baton Rouge and he had to get out of the cab and direct traffic around the truck. He notified the company and the truck was towed to a food store parking lot. USA Truck sent two men to inspect the truck. The truck was started and Mr. Voss drove to Lafayette. It was summer in Louisiana and Mr. Voss decided to stop at the T/A Center to get his air conditioning repaired. The T/A Center mechanic was unable to fix his air conditioning because the truck needed a part. He began to look for a place to park and sleep at the T/A Center, but could not find one. He decided to get back on the road and travel to the Pilot Station to find a place to sleep for the night. When he reached interstate mile marker 107 the electrical system in the truck failed. Mr. Voss stated: “I lost my lights, and my power started diminishing until I had no power left at all; and I downshifted and tried to kick the engine to keep it going and using my clutch, but I couldn’t keep it rolling. I had no power at all.” The Trooper determined Mr. Voss had been broken down on the side of the dark, deserted interstate shoulder for several hours with no means of communication. His truck had no electrical power, no lights, no emergency flashers, no CB radio, and no cell phone. Mr. Voss testified: “My cell phone I–I was over my–I didn’t send the last bill, so they cut me off; so I couldn’t use that, and I had no power on my cell phone to make contact.” The only means of communication on the truck was a Qual-Com system which was non-operational because it worked on the electrical system. The truck had no refrigerator or t.v. which could have drained power from the battery thereby disabling the truck. Although he was only a short distance from his destination, the Pilot Station, Mr. Voss did not check his map and chose to retreat to the safety of the cab rather than seek assistance to move his disabled truck off of the shoulder. He apparently concluded it was safer for him to remain in the cab of his 18 wheeler truck than to walk on the shoulder of the highway where a vehicle may, in a moment of inadvertence, drift from the roadway onto the shoulder and hit him. He testified: “People were doing 70 and 80 miles an hour on that road, and I wasn’t about to get hit.” The only safety measure he took was to place a triangle on the shoulder approximately 275 feet behind the truck and another one approximately 155 feet behind the truck. After placing the triangles on the shoulder, Mr. Voss climbed into his cab and went to sleep.

Mr. Voss admitted he was an inexperienced cross-country driver. He had only been employed by USA Truck since February 2001 and had had two other accidents prior to this one. On April 17, 2001, two months after he was licensed, he drove into a ditch and on May 25, 2001, he hit several parked cars. Mr. Voss was fifty years old and on high blood pressure medication, although this medication, according to the testimony, would not disqualify him as a cross-country driver. He is no longer employed as a truck driver and is currently employed by Sam’s Club and Exxon as a convenience store cashier. His actions after the accident aptly demonstrate his inexperience. He testified after the crash, he “freaked out.” He saw Jason in the truck and could tell he was seriously injured or dead. He testified he tried to flag down help “until I felt my safety was in jeopardy, and I went to the confine of my cab … I figured I would wait it out until morning.”

Jim Shaffer, maintenance supervisor for USA Truck, testified there were no procedures in place for a driver to follow in case of an emergency stop and the company provided no training sessions on emergency procedures for its drivers. He stated the drivers should just rely on their “common sense.” Faced with an emergency situation, Mr. Shaffer opined a driver “either waits for a police officer to come by, or flags another trucker down, or gets a ride, or walks to the next exit, so he can make a phone call in.”

Not only was Mr. Voss an inexperienced cross-country driver, the truck USA Truck gave him to drive had a history of electrical failure. Between March 10, 2001 and July 1, 2001, the truck broke down eleven times all over the United States and Canada. The following is the history of the breakdowns:

DATE LOCATION COMPLAINT CAUSE

3/10/01 Lakefield, Ontario Truck will not start Low batteries

3/10/01 Pickering, Ontario Alternator not charging Loose ground, battery

dead

3/12/01 Detroit, Michigan Truck will not start Low batteries

3/20/01 Westlake, Ohio Check charging system Positive post on

starter loose

4/11/01 Frederick, Maryland Truck will not start Batteries dead

5/3/01 Fayetteville, Truck will not start Low batteries

N.Carolina

5/15/01 Bridport, Vermont Truck will not start Corroded battery

connections

5/25/01 Brooklyn, New York Truck will not start Low batteries

6/29/01 Atlanta, Georgia Truck will not start Batteries dead

6/30/01 Baton Rouge, LA. Truck will not start Low batteries

USA Truck knew or should have known of the problems with the truck. Mr. Voss testified: “[T]here is documentation made either on the computer or by hand; that each time a driver does a call in, there is a notation so they can refer back to it in case there is a problem.” Mr. Shaffer testified regarding the protocol when a fleet vehicle breaks down: “A driver will call in with a problem with his tractor and trailer. He’ll give us his location, and tell us what problem he’s having, and we will send him someplace to get it repaired, or send road service to him or her.” He stated a working cell phone is not required equipment on company trucks. In this case, when Mr. Voss’ truck would break down, USA Truck would send a representative to either jump start the battery or pull start the truck. The truck was never taken out of service to determine the source of the electrical failure. Despite a documented record of repeated incidents of engine failure, USA Truck kept the truck in service and kept an inexperienced driver behind the wheel driving across the country with no means of communication in case of engine failure, which given the truck’s history, was virtually certain to occur. Finally, on July 24, 2001, just weeks after the fatal accident, USA Truck took the 18-wheeler out of service.

There is no dispute Jason momentarily drifted from the highway onto the shoulder. Trooper Burson opined Jason probably left the roadway somewhere near the 155 foot triangle because that triangle was crushed, apparently by his truck, when he traveled onto the shoulder. Trooper Burson testified: “[I]t appears that he gradually drifted … from where the first triangle was broken to where the impact was at, and it didn’t appear to be anything abrupt.” He found no evidence of braking or turning. Once Jason drifted off the roadway, and struck the triangle approximately 155 feet from the rear of the truck, it was too late to react or avoid the crash. Assuming he was traveling the interstate speed limit of 70 mph, it would have taken him only 1.4 seconds to travel the 155 feet before striking the rear of the trailer.

LAW AND DISCUSSION

Liability and Apportionment of Fault

USA Truck and Mr. Voss contend the jury erred in finding them 25% at fault. The Defendants contend Jason was solely at fault in momentarily drifting onto the shoulder. In order to determine the liability of USA Truck, using a duty-risk analysis, we must examine whether the conduct in question was the cause-in-fact of the resulting harm, whether the defendant owed a duty to the plaintiff which defendant breached and whether the risk of harm was within the scope of protection afforded by that duty. SeeCampbell v. La. Dep’t. of Transp. & Dev.,94-1052 (La.1/17/95), 648 So.2d 898. Applying this test to the facts of the present case, we agree with the jury’s finding of liability on the part of USA Truck and Mr. Voss.

USA Truck had a duty to maintain its vehicles in proper working order. Federal Motor Carrier Safety Regulation,Section 396.7(a)provides as follows:

A motor vehicle shall not be operated in such a condition as to likely cause an accident or a breakdown of the vehicle.

USA Truck contends this statute cannot be used to impose liability for failure to maintain its vehicle. USA Truck relies onSumner v. Sumner,95-677 (La.App. 3 Cir. 11/8/95), 664 So.2d 718,writ denied,95-2919 (La.2/9/96), 667 So.2d 531. In Sumner, this court found the particular statute relied on by plaintiff inapplicable because the trucker in question stopped for approximately two minutes on the shoulder of the interstate to fix a broken windshield wiper and did not leave his vehicle unattended. However, the vehicle in question had numerous breakdowns, and at the time of the accident, was broken down on the shoulder of the interstate highway for several hours. Therefore, we find, in the present case, the FederalMotor Carrier Safety Regulation imposes a duty on USA Truck to properly maintain its vehicles to prevent frequent and extended breakdowns. The failure of USA Truck to follow the plain language of the Regulation was a violation of that duty and was a cause in fact of the accident. Accordingly, we find no merit in this argument by USA Truck.

Further, this finding is supported by the testimony of Jessie Theriot, a retired State Trooper, who is now an independent safety consultant. Mr. Theriot audits truck companies to assist them in complying with Department of Transportation rules and regulations. He examined the history of engine failure on the USA Truck and concluded:

The maintenance should have been done so that the truck should have been deadlined and should have been pulled off the roadway and really tore into. If the mechanical department or the maintenance department cannot take care of the problems, then that’s when you contact your manufacturer.

After reviewing the maintenance records on the 18 wheeler, Mr. Theriot concluded USA Truck had a “set pattern pertaining to the vehicle maintenance problems”–a pattern of neglect. Even Donald Elrod, safety director for USA Truck, admitted the truck was likely to experience a breakdown on the road. He stated: “Well, looking at everything you’ve got here, like you said, just assuming what we’ve got and hypothetically, I would say that the vehicle was being operated, and it was likely to cause a breakdown.”

Moreover, USA Truck placed an inexperienced driver behind the wheel with no means of communication in case of a breakdown. Mr. Voss was ill-equipped and untrained in emergency procedures. By remaining parked for hours on the unlit interstate shoulder at night, Mr. Voss created an unreasonable risk of injury to interstate travelers, especially motorists who are momentarily distracted and drift from the roadway onto the shoulder or those who may have to take refuge on the shoulder to avoid another highway hazard. The testimony established he broke down somewhere between 12:30 a.m. and 1:00 a.m. He had no way to notify state police of his location and the nature of the situation. He admitted it was foreseeable a motorist would drift from the roadway. Instead of walking the short distance for assistance at the Pilot Station, Mr. Voss made the decision to use the shoulder as a parking place to sleep for the evening in the security and safety of his big rig.

The supreme court has held the shoulder of the highway is to be used for temporary emergency situations or as a recovery center in case of an inadvertent drift off the roadway and not as a “safe harbor” for stranded motorists.Shephard on Behalf of Shephard v. Scheeler,96-1690 (La.10/21/97), 701 So. 1308, 1318. InShephard, a sixteen-year-old boy lost control of his vehicle and slammed into a parish dump truck which was parked on the shoulder. In finding liability on the part of the parish, the court stated:

While we acknowledge that the Parish was not in violation ofLa.R.S. 32:296, this fact alone does not absolve it of liability.La.R.S. 32:296is not a grant of immunity to public entities, and the shoulder of the highway is not a “safe harbor” for any public vehicle, even those on official business.

The primary safety purpose of the paved shoulder of the highway is to provide an area for motorists who require a momentary stop, and to protect a motorist who inadvertently leaves the roadway.

We find the continuous use of a fixed area of the shoulder as a parking lot or a regular embarkation point Parish workers unreasonably impairs its safety function as a recovery area.

…

[T]he probability of the harm and gravity of the harm caused by the Parish’s parking truck on the shoulder greatly outweighed the cost of avoiding the risk by parking elsewhere. The use of the shoulder in a consistent and continuous manner rather than a transitory manner, accompanied by the failure to utilize an available safe area to park the truck constituted an unreasonable risk of harm to motorists. We therefore hold that the Parish breached its duty to use the shoulder in a reasonably safe manner, and that this breach was a legal cause of the accident. The harm that occurred in the instant case was the very risk of harm contemplated by the duty to use the paved shoulder in a reasonable manner, namely that a vehicle that leaves the traveled portion of the highway would collide with a vehicle stopped in the recovery area.

Id.at 1318-19.

InMonceaux v. Jennings Rice Drier, Inc.,590 So.2d 672 (La.App. 3 Cir.1991), Johanna K. Monceaux was killed when she struck an unlighted, disabled rice truck parked on the shoulder of the interstate. The facts indicate, at approximately 3:00 a.m., Ms. Monceaux left Crowley and was traveling west toward her home in Egan. She apparently fell asleep and swerved off the roadway. When she attempted to gain control of her vehicle and re-enter the roadway she struck the disabled rice truck parked on the shoulder. The testimony indicated the day before, Fred Loewer, owner of the rice truck, contacted Sheriff’s Deputy Billedeaux. He requested that Billedeaux inform the proper authorities that the disabled truck would be left on the shoulder of Interstate 10 overnight. The Louisiana State Police gave permission to leave the rice truck on the shoulder. Following trial, the trial court found Ms. Monceaux 25% at fault, Mr. Loewer 30% at fault and the State 45% at fault in causing the fatality. The trial court awarded $225,000.00 to each parent for the death of their daughter. This court affirmed the award and the finding of liability on the part of Mr. Loewer and Officer Bernard of the State Police, stating:

There is no doubt that the unmarked, unlighted truck parked on the side of I-10 at night posed a dangerous traffic situation and subjected motorists to an unreasonable risk of harm…. Since Officer Bernard knew about the possibility that a dangerous situation existed, he had a duty to protect motorists from the risk.This duty extends not only to prudent, attentive drivers but to those who are momentarily inattentive or careless.

Id.at 675 (emphasis added).

InRue v. State, Department of Highways,372 So.2d 1197 (La.1979), the supreme court allowed an inadvertent motorist to recover damages for her injuries when she drove onto a substandard shoulder. The court stated:

A motorist has a right to assume that a highway shoulder, the function of which is to accommodate motor vehicles intentionally or unintentionally driven thereon, is maintained in a reasonably safe condition. Conversely, the Highway Department’s duty to maintain a safe shoulder encompasses the foreseeable risk that for any number of reasons, including simple inadvertence, a motorist might find himself traveling on, or partially on, the shoulder.

Id.at 1199.

In theSumnercase, referred to above, this court found the emergency situation presented by defective wiper blades “justified Lowe’s decision totemporarilypark his eighteen-wheeler on the shoulder to tighten the wiper arm.”Id.at 723 (emphasis added).

USA Truck attempts to absolve itself of liability by arguing the truck had reflectors strips on the side and back of the trailer and the driver placed two triangles on the shoulder. USA Truck and Mr. Voss created an unreasonably dangerous situation by remaining parked on the shoulder for an indefinite period of time. While the presence of reflector strips and triangles may have alerted an attentive driver who was passing the stalled vehicle, it cannot completely absolve USA Truck of liability in causing this accident. We find no merit in this argument. Therefore, we affirm the jury finding of liability on the part of USA Truck and Mr. Voss.

We disagree with the percentage of fault assessed by the jury to each of the parties and find USA Truck and Mr. Voss were a more substantial factor in causing the fatality. A jury’s findings are entitled to great deference and should not be overturned unless manifestly erroneous.Guillory v. Ins. Co. of N. Am.,96-1084 (La.4/8/97), 692 So.2d 1029,writ denied,01-2887 (La.1/25/02), 807 So.2d 250.The manifest error rule also applies to a jury’s allocation of percentage of fault.Clement v. Frey,95- 1119 (La .1/16/96), 666 So.2d 607. However, when there is no reasonable basis in the record for the allocation of fault determined by the jury, reversal of the jury finding is warranted and the appellate court must decide the casede novo.Davis v. Smith,35,117 (La.App. 2 Cir. 10/2/01), 796 So.2d 765. While we do not find Jason is completely free of fault in causing this accident, we find, based on the facts in the record, and the principles of law governing allocation of fault, the jury was clearly wrong in it apportionment of 75% fault to Jason and only 25% fault to USA Truck and David Voss.

Louisiana’s comparative negligence provision is found in theLa.Civ.Code art. 2323and provides, in relevant part:

In any action for damages where a person suffers injury, death, or loss, the degree of percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions ofR.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable. If a person suffers injury, death or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.

In determining percentage of fault, the supreme court has established guidelines for the trier of fact. InWatson v. State Farm Fire and Casualty Insurance Co.,469 So.2d 967 (La.1985), the court cited theUniform Comparative Fault Act, Section 2(b), which provides:

In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed.

The supreme court continued:

In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.

Id.at 974.

Watsonarose out of a hunting accident. Earl Creel’s minor son shot and killed fifty-three year old Doyle Watson with a high-powered rifle. The jury found the decedent, Mr. Watson, 100% at fault in causing the accident by inadvertently walking across a field where he knew the young boy was hunting deer and in failing to wear bright colored clothing. The appellate court affirmed the jury verdict. The supreme court reversed and found the jury finding was clearly wrong. Of significance to the court was the fact that the action of Mr. Watson, “in walking along the field road within the boy’s rifle range, was inadvertent” and his failure to don hunters orange clothing “had only an indirect causative impact on the accident”, while the actions of the boy’s father, in failing to train and supervise his son in gun safely, were a deliberate failure.Id.The court stated:

[N]one of the actions of Shane or his father Earl Creel can be considered inadvertent. They were aware that the high-powered rifle was deadly and that it was imperative to discern a target with certainty before firing. In a similar vein, the risk of firing or failing to train and supervise the firing of such a weapon had a direct potential for fatal consequences.

Id.

Moreover, the court found no possible excuse for Mr. Creel’s failure to properly train and supervise his son in gun safety. The court stated:

And, in considering possible mitigating factors, the Creels had no higher motive than sport when their acts of negligence occurred, and their actions were not dictated by any emergency or other circumstance which could lessen the fault attributed to this poor judgment.

Id.

Considering all the factors involved and applying the guidelines for allocation of fault, the court, inWatsonassessed 20% fault to Mr. Watson and 80% fault to Mr. Creel and his son in causing the accident. Applying the guidelines ofWatson,to the facts of this case, we find the conduct of Jason was inadvertent while the conduct of USA Truck was deliberate and “had no higher motive” than financial gain and the convenience of the driver. While the initial stop was dictated by exigent circumstances, the decision by Mr. Voss to remain parked on the shoulder for an extended period of time was negligent and created an unreasonable risk of injury to interstate travelers. His presence on the shoulder of the interstate foreclosed any opportunity Jason may have had to recover from his second or two of inadvertence and gain control of his vehicle.

Moreover, USA Truck and Mr. Voss were in a far superior position to remedy the situation. Had Mr. Voss been equipped with a working cell phone or CB radio, he could have immediately called for help and had his vehicle removed from its hazardous position. USA Truck had ten opportunities to remedy the electrical problems with the truck, but failed to do so. When faced with the inevitable emergency situation, USA Truck’s employee did not take any steps to attempt to notify the authorities or to prevent the tragedy that occurred.

In 1995, inCampbell v. La. Dept. of Transp. & Dev.,94-1052 (La.1/17/95), 648 So.2d 898,the supreme court again revisited the guidelines for determining an allocation of fault between the parties and articulated the doctrine of “more substantial factor.” The facts inCampbellare as follows. Robert Campbell was a guest passenger in a vehicle being driven by Richard Ledford. Sometime been 4:30 a.m. and 5:00 a.m., Mr. Ledford fell asleep at the wheel. When he awakened he tried to get back on the roadway from the shoulder before he entered the Crib Creek Bridge. He was unable to do so and he struck the concrete abutment of the bridge. The bridge did not have guardrails. Mr. Campbell sued the Louisiana Department of Transportation and Development (DOTD). At trial, a road design engineer testified an unexposed concrete bridge abutment presented a hazard to motorists. He testified the purpose of a guardrail was to prevent a vehicle from slamming into the end of the bridge. Another expert testified guardrails would have substantially reduced the danger to a vehicle veering off the roadway and impacting the bridge. The court employed the duty-risk analysis and concluded the negligence of Mr. Ledford, in falling asleep at the wheel, did not absolve DOTD from liability. Moreover, of significance to the court was “DOTD knew of the fact that Crib Creek Bridge did not have guardrails, had reasonable opportunity to remedy the condition and failed to do so.”Id.at 902. Because the actions of DOTD were deliberate, the court concluded the more substantial fault was with DOTD. The court stated:

DOTD argues that the lack of guardrails did not cause Ledford to lose control of his vehicle and thus was not a cause-in-fact of the accident. DOTD would have us look no further than the negligence of Ledford in causing the accident. However, the failure of Ledford to maintain control of the vehicle does not relieve DOTD of its duty to keep the highways safe. This case involved one unfortunateevent–a collision of the vehicle with the bridge. The negligence of Ledford in losing control of his vehicle as well as the failure of DOTD to place guardrails on the bridge combined to cause the harm to the guest passengers in the vehicle. The fact that more than one party can contribute to the harm is the reason for our comparative fault system. Clearly, DOTD’s conduct in failing to place guardrails on Crib Creek Bridge was a substantial factor in causing the injuries to Campbell and the death of Frazier.

Id.at 902. The supreme court assessed Mr. Ledford with 25% fault and the DOTD with 75% fault.

InMonceaux,590 So.2d 672,we again note, the trial court found Ms. Monceaux 25% at fault, Mr. Loewer 30% at fault and the State 45% at fault in causing the fatality and awarded $225,000.00 to each parent for the death of their daughter. This court in affirming the award and the finding of liability, however, held “in light of theWatsonguidelines … that the major part of the fault lies with Fred Loewer in allowing the truck to remain on the highway unmarked in spite of the risk involved.”Id.at 676.This court amended the judgment and found Mr. Loewer 50% at fault, the State 25% at fault and Ms. Monceaux 25% at fault.

When we compareMonceauxto the instant case, we are struck by their similarities. As with Ms. Monceaux, there is no evidence to indicate Jason had any culpability in causing the accident other than a second or two of inadvertence. On the other hand, USA Truck’s actions can be compared with that of Loewer’s, only USA Truck’s actions are more aggravated. The truck had a record of numerous electrical problems and the company failed to remedy the trouble. Further, USA Truck did not provide Mr. Voss with any emergency communication equipment. Mr. Voss was ill-equipped and untrained to handle the situation presented on the evening of July 1, 2001, and the culpability for his behavior lies with USA Truck. Accordingly, we find 75% of the fault for this accident lies with USA Truck and Mr. Voss and 25% lies with Jason.

Damages

USA Truck contends the trial court erred in granting a Judgment Notwithstanding the Verdict (JNOV) and raising the damage award to $250,000.00 to each parent. In determining whether the trial court properly granted a JNOV, the Louisiana Supreme Court inDavis v. Wal-Mart Stores, Inc.,00-445 (La.11/28/00), 774 So.2d 84, 89has stated:

A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable jurors could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover.

We find no error in the trial court’s judgment granting the JNOV or in the amount awarded to each parent. Jason Provost was twenty years old, the second of four children born to Joseph and Joanna Provost. His mother described him as full of fun and a “cut up.” His father called him the kind of child any father would be proud of. Jason played basketball in elementary and high school. He volunteered as a coach for his younger brother’s basketball team. The Provost family had a close and loving relationship with each other and with their extended family, including aunts, uncles, cousins and grandparents. The Provost family hosted all family functions for holidays and birthdays.

The Provost family home was the gathering place for the friends of the Provost children and, before this tragedy, was filled with laughter. The Provosts are devout Catholics and attended Mass together on a regular basis. Joanna is lector and Joseph serves as an usher. Jason worked full time after his high school graduation and planned to attend the University of Louisiana in the fall of 2001. Joanna is still haunted by the memory of her son and testified, at times, she can still smell the scent of him in her home.

We find the damage award of $250,000.00 to each parent reasonable and in keeping with other damages awarded in similar circumstances.See Pinsonneault v. Merchants & Farmers Bank and Trust Company,99-12 (La.App. 3 Cir. 7/21/99), 738 So.172, where $350,000.00 was awarded to each parent for the wrongful death of their twenty-three year old son.See also,Hasha v. Calcasieu Parish Police Jury,94-705 (La.App. 3 Cir. 2/15/95), 651 So.2d 865,writ denied,95-667,95-676 (La.4/28/95), 653 So.2d 592, 593.Accordingly, we affirm the decision of the trial court granting the JNOV and increasing the award of damages.

Expert Testimony

USA Truck contends the trial court erred in allowing Jessie Theriot, plaintiff’s expert, to testify.Louisiana Code of Evidence Article 702provides, in relevant part:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

We find no error in allowing Mr. Theriot to testify regarding the rules and regulations applicable to the trucking industry and whether USA Truck failed to comply with these regulations. Mr. Theriot is retired from the Louisiana State Police with twenty-five years of law enforcement experience. He was the regional deputy commander for the Transportation and Environmental Safety Section. Upon his retirement with the state police he worked for eight years as safety manager for Venture Transport, a transportation company, overseeing compliance with federal and state regulations for the trucking industry. He is a trained safety auditor and has attended the United States Department of Transportation Auditing School. As an independent auditor, he reviews files that are maintained by trucking companies to determine whether they are in compliance with regulations. He has attended numerous safety seminars and is certified as a Fleet Safety Supervisor. A trial court is granted wide discretion in deciding whether to allow a witness to testify as an expert and its decision will not be overturned absent clear error.Abshire v. Wilkinson,01-075 (La.App. 3 Cir. 5/30/01), 787 So.2d 1158. We find no error in the decision of the trial court allowing Mr. Theriot to testify as an expert witness regarding federal and state safety regulations. Accordingly, we find this assignment of error without merit.

Maintenance Records

USA Truck contends the trial court erred in allowing its company maintenance records into evidence. USA Truck contends the records were not relevant. We disagree. The records were relevant to establish a pattern of negligent handling of maintenance problems on its fleet vehicle. We find this assignment of error without merit.

Court Costs

USA Truck contends the trial court erred in assessing all court costs to Defendants. The trial court has broad discretion in its allocation of court costs.Boutte v. Nissan Motor Corp.,94-1470 (La.App. 3 Cir. 9/13/95), 663 So.2d 154. We find no error in this decision.

DECREE

Based on the foregoing review of the record, we affirm the decision of the trial court granting the JNOV and increasing the damage award to $250,000.00 for each parent. We reverse the judgment of the trial court and find USA Truck and Mr. Voss 75% at fault and Jason 25% at fault. In all other respects, the judgment of the trial court is affirmed. All costs of this appeal are assessed to USA Truck, Inc. and David Voss.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.