Morris v. StewartMorris v. Stewart
In this personal injury action arising out of an automobile accident, defendants, William J. Stewart, Rollins Cab Company and Louisiana Insurance Guaranty Association (“LIGA“) appeal a judgment rendered in favor of plaintiff, Carlotta Morris.
On May 16, 1989, the vehicle plaintiff was driving or sitting in was involved in a very minor accident with a Rollins Cab Company cab being operated by defendant, William Stewart. Protective Casualty Insurance Company (“PCIC“), the insurer of the cab, became insolvent on May 24, 1991 and LIGA was thereafter substituted as a defendant.
On June 11, 1991 a pre-trial order was entered setting trial for October 17, 1991.
The pre-trial order required that:
All subpoenas shall be ordered with proper instructions and addresses on or before 30 days prior to the above trial date.
The pre-trial order also stated:
Continuances will not be granted if this trial order is not strictly complied with.
On September 26, 1991, counsel for defendants issued a subpoena for William Stewart, the cab driver, to appear at the October 17, 1991 trial. This subpoena was not issued in accordance with the pre-trial order. On October 9, 1991 plaintiff filed the amended and supplemental petition substituting LIGA for PCIC. On October 16, 1991, counsel for Stewart, Rollins and LIGA filed a motion to continue the trial set for October 17, 1991 because of the substitution of LIGA as a defendant. Trial was subsequently reset for December 11, 1991. On November 12, 1991, counsel for LIGA and the other defendants issued a subpoena for Stewart. This was 29 days
On the day of the scheduled trial, December 11, 1992, counsel for LIGA filed a written motion to continue because Stewart did not show up for trial. Counsel stated to the court that the November 12, 1991 subpoena had been returned marked “Empty House, No One Lives There.” It should be noted that the address on the subpoena was the same one listed on the previous subpoena which apparently had been served on Stewart. In its motion to continue, counsel for LIGA stated that he spoke to Stewart on December 3, 1991, eight days before trial, and asked him to appear at a meeting scheduled for December 5, 1991. Counsel stated that Stewart did not appear for the meeting and did not return numerous phone calls. Counsel stated that he also discovered a new address for Stewart on December 3, 1991 and mailed him a letter notifying him of the trial date. To find the new address counsel simply inquired at Rollins Cab Co.
The trial court denied the motion to continue because the subpoena had not been issued thirty (30) days before trial as required by the pre-trial order. The trial court also refused a request to leave the record open. Following trial, the court rendered judgment in favor of plaintiff, awarding her general damages in the amount of $4,500.00, and special damages in the amount of $973.00 for medical expenses and $194.00 for lost wages. In its reasons for judgment, the trial court found that plaintiff‘s car had been parked thirty inches from the curb with its engine running and the taxi being driven by Stewart struck it.
On appeal, defendants claim the trial court erred (1) in denying their motion to continue, (2) in awarding medical expenses, and (3) in awarding legal interest from the date of judicial demand.
MOTION TO CONTINUE
A continuance shall be granted if at the time a case is to be tried, ... a material witness has absented himself without the contrivance of the party applying for the continuance. (Emphasis added).
There is no question that defendant cab driver William Stewart, who was driving one of the vehicles involved in the accident, was a material witness within the meaning of
Even though the trial court did not base his denial of the continuance on the failure to list Stewart‘s correct address, it is a factor to consider in determining whether the trial court erred in denying LIGA‘s motion to continue. It is also important to note that Stewart apparently was the only witness LIGA planned to call as a witness. It did not have a stack of subpoenas to order; it only had one.
LIGA argues that “reasonable efforts” were made to secure the testimony of Stewart for trial. It further claims the subpoena was filed late because November 11, 1991 was a legal holiday. LIGA claims it should have had until November 12th to order the subpoena because of the holiday. It cites
In computing a period of time allowed or prescribed by law or by order of court,
the date of the act, event, or default after which the period begins to run is not to be included. The last day of the period is to be included, unless it is a legal holiday, in which event the period runs until the end of the next day which is not a legal holiday.
LIGA‘s reliance on
Rules of court are binding upon and have the effect of law on judges and litigants. Laprarie v. King, 575 So.2d 921 (La.App. 2d Cir.1991), writ denied, 578 So.2d 140 (la.1991); Lewis v. Modular Quarters, 508 So.2d 975 (La.App. 3rd Cir. 1987), writ denied, 514 So.2d 127 (La.1987), cert. denied, 487 U.S. 1226, 108 S.Ct. 2886, 101 L.Ed.2d 920 (1988).
We see no conflict between the pre-trial order and
JUDICIAL INTEREST
The trial court awarded judicial interest from the date of judicial demand. LIGA argues that interest should be awarded only from the date of PCIC‘s insolvency. It cites
“Covered claim” shall not include any claim based on or arising from a pre-insolvency obligation of an insolvent insurer, including but not limited to contractual attorneys’ fees and expenses, statutory penalties and attorneys’ fees, court costs, interest and bond premiums, or any other expenses incurred prior to the determination of insolvency.
This provision became law on September 7, 1990.1 Plaintiff‘s original suit was filed against PCIC on January 26, 1990, seeking, among other things, legal interest from the date of judicial demand. Plaintiff claims that
In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretive laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.
There is no question but that
CREDIT FOR MEDICAL EXPENSES
The trial court awarded plaintiff medical expenses in the amount of $973.00. LIGA contends that it is entitled to a “dollar-for-dollar
Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer which is also a covered claim, shall be required first to exhaust his rights under such policy. Such other policies of insurance shall include but shall not be limited to liability coverage, uninsured or underinsured motorist liability coverage, or both, hospitalization, and other medical expense coverage. Any amounts payable by such other insurance shall act as a dollar-for-dollar credit against any liability of the association [LIGA] under this Part.
The 1990 amendments to
Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer which is also a covered claim, shall be required to exhaust first his right under such policy. Any amount payable on a covered claim under this Part shall be reduced by the amount of any recovery under such insurance policy.
In Hickerson v. Protective National Ins. Co. of Omaha, 383 So.2d 377 (La.1980), the Louisiana Supreme Court interpreted then
LIGA introduced plaintiff‘s answer to one of its interrogatories in which she stated that she was insured for hospitalization benefits by her employer, the City of New Orleans but had made no claim against the City for medical expenses related to the accident. However, no evidence was offered as to amount of any benefits plaintiff would have been entitled to under the insurance plan for the City of New Orleans. Therefore, we find no error in the trial court‘s award of $973.00 in medical expenses to plaintiff.3
AFFIRMED.
Notes
Any person having a claim against an insurer under any provision in an insurance policy, other than a policy of an insolvent insurer which is also a covered claim, shall be required first to exhaust his rights under such policy. Such other policies of insurance shall include but shall not be limited to liability coverage, uninsured or underinsured motorist liability coverage, or both, hospitalization, and other medical expense coverage. As to the association [LIGA], any amount payable by such other insurance shall act as a credit against the damages of the claimant, and the association shall not be liable for such portion of the damages of the claimant.
Act 237, § 3 provided:
This Act shall apply to all covered claims, as defined in
In Segura v. Louisiana Insurance Guaranty Association, 615 So.2d 516 (La.App. 3rd Cir. 1993), the court found that the 1992 amendments did not apply to a case on appeal where the trial court had rendered judgment before the effective date of the amendments. Although the circumstances of this case differ from Segura, we do not believe the legislature intended that a “pending” claim include one in which a trial court rendered judgment before the effective date of the amendments.