On May 28, 2005, Brian Smith was delivering a car as a surprise gift to his mother. Chaos unfolded, however, when a trailer came loose in Morehouse Parish from a truck being driven by one of the defendants, Joshua Pruett. The truck, at the time, was being utilized as part of his delivery duties for Broubar, Inc., which was doing business as Acadia Crawfish. The trailer crossed the centerline and collided with the driver’s side of Mr. Smith’s car, and Mr. Smith died as a result of the injuries he sustained in the accident.
Mr. Smith’s mother, Gracie Smith, filed lawsuits against Acadia Crawfish, Pruett, Scott Broussard (the owner of Broubar, Inc.), and Farm Bureau as liability insurer and as Brian Smith’s uninsured motorist (UM) insurer. She later filed a separate lawsuit against Progressive Security Insurance Company and Broubar, Inc. The lawsuits were later consolidated into one lawsuit.
All of the parties to the lawsuit agreed that the defendants were liable for the accident because it was clear that the ball on the truck driven by Mr. Pruett was too small for the trailer hitch and he had not used any safety chains to ensure that the trailer would remain attached to the truck. They went to trial on the issue of damages for survival and wrongful death.
A survival action compensates the survivors for the damages suffered by a victim from the time of injury to the moment of his or her death. The cause of action is “inherited” – it belongs to the victim and is passed on at death. Damages in a survival cause of action can include the victim’s pre-impact fear, and if there is even a tiny amount of evidence showing any pain of suffering by a victim before his death, damages are warranted. The evidence in this case showed that the victim undoubtedly was in great fear as he attempted to avoid the collision. He had massive abdominal and chest injuries, with partial amputation of his lower left leg and hemorrhage in his brain. The Second Circuit therefore ruled that an award of $250,000 was not an abuse of discretion.
A wrongful death action, on the other hand, compensates the beneficiaries, usually family members, for their own injuries which they suffer from the moment of the victim’s death on. In this way, the wrongful death action belongs to the survivors, not the victim. Usually, the plaintiff in a wrongful death action can claim loss of love and affection, loss of services, loss of support, medical expenses and funeral expenses. In this case, Mr. Smith had supported her financially and was very close with her, more so than any of his eleven siblings. Awards for lost future income or support are, however, intrinsically difficult to calculate with absolute certainty and a plaintiff must be able to show an amount with reasonable certainty, not rely on mere speculation. Mrs. Smith was a widow and her only source of income was Social Security. As a result, she relied heavily upon the money her son often gave her. Except for an error in calculating the value of the car that Mr. Smith was driving, the appellate court affirmed all other aspects of the wrongful death action and Mrs. Smith was awarded a total of $584,368 for compensatory damages, loss of support, loss of services, and funeral expenses.
Progressive Insurance appealed the trial court’s determination that it was the primary insurance carrier for a substitute truck and was therefore liable for damages. Mrs. Smith had settled out of court with Farm Bureau for $100,000 under the liability coverage and $10,000 under the UM coverage. Farm Bureau then wanted to be indemnified by Progressive Insurance and filed a cross claim against Progressive. If the truck, which was a temporary truck (a 1998 Dodge) being driven by Mr. Pruett because the one he usually drove was being repaired, was insured by Progressive, then Progressive would ultimately be responsible for paying damages. The 1998 Dodge in connection with the trailer was found to be one vehicle and was a “temporary substitute vehicle” which, under La. R.S. 22:1296 requires insurance companies to extend coverage to temporary substitute motor vehicles. The 1998 Dodge was owned on paper by Broubar, Inc., but was normally used by Mr. Broussard, and he considered it his personal truck. The trial court found that all of the companies that Mr. Broussard owned were operated independently, so the truck could not be seen as an uninsured vehicle belonging to Broubar, Inc. (which would disqualify it from being a temporary substitute vehicle and, therefore, being covered by the policy). An insurance company cannot escape liability by not defining “temporary substitute vehicle” in its policy. The trial court ordered Progressive to pay all the damages, and that determination was upheld on appeal.
Although obviously complex, insurance dispute is a subject matter that attorneys like ours feel comfortable navigating. If you have any questions regarding a matter like this, it is important to consult with an attorney about your legal rights.
If you have been involved in a matter similar to this, the Berniard Law Firm may be able to answer some of your questions. Call us today, toll-free, at 1-866-574-8005 and speak with a lawyer who can help you.