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Sims v. Liberty Mutual Insurance Co.3/2/2005
AFFIRMED AS AMENDED.
In this consolidated case, several issues are raised by the parties. The issues pertain to fault, damages, and insurance coverage.
FACTS
On July 18, 1994, at approximately 10:20 p.m., Wayne Croy was driving his Ford Courier pickup truck south on Bragg Street in Pineville, Louisiana. Christopher Sims was a passenger in his truck. They were returning home from Mississippi. At the same time, Dennis Stephenson was driving a Ford Taurus heading north on Bragg Street. His niece, Erica Woods, was a passenger in the car. As Stephenson traveled along Bragg Street, he came upon a curve to the left. The wheels of the Taurus left the highway and, at some point, the vehicle reentered the highway, crossed the center and collided head-on with the pickup truck. The accident resulted in the death of Wayne Croy and serious injuries to Sims.
Terry Croy, Wayne's wife, filed survival and wrongful death actions. Wayne's four major children, Gerald Allen Croy, Kathy Stanley, Twyla Tanner, and Bryan Croy, also filed a wrongful death action. Sims filed suit for his injuries. Made defendants were the City of Pineville; Stephenson; his automobile liability insurer, Liberty Mutual Insurance Company; the owner of the Taurus, Hixson-Hopkins Autoplex of Alexandria; and Connie Lewis, the man who rented the vehicle from Hixson-Hopkins. The Plaintiffs alleged that the cause of the collision was the substandard condition of the roadway and the negligence of Stephenson.
The three separate suits were consolidated in the trial court. A bench trial was held on December 3 - 6, 2002. The trial court found the City of Pineville and Stephenson each fifty percent at fault for the accident. The claims against Hixson-Hopkins and Lewis were dismissed, and Liberty Mutual's coverage was limited to $10,000.00 per person, $20,000.00 per accident. The City, Terry Croy, the Croy children, and Sims appealed the judgment. Croy also answered the appeal.
There are some preliminary matters that have been raised by the City. Therefore, we will address those issues first.
DUE PROCESS
The City claims that it was deprived of its due process rights when brought into the suit nearly three years after the accident. The suits were originally filed in September and December of 1994. The City was made a defendant for the first time when Sims amended his petition for damages on March 14, 1997. The City claims that it was prejudiced because it entered into an intergovernmental agreement with the Rapides Parish Police Jury to overlay and stripe Bragg Street, which occurred on April 16, 1997, thereby, denying it the chance to have the street examined by an expert of its choosing as it existed at the time of the accident. The City filed applications for writs with this court and the supreme court when the trial court originally denied its exception of prescription in 1997.
"Review of an issue previously addressed by an appellate court is generally precluded by the law of the case doctrine." Desselle v. LaFleur, 03-562, p. 3 (La.App. 3 Cir. 2/4/04), 865 So.2d 954, 956. "This doctrine not only applies to those decisions of an appellate court that arise from the full appeal process but to all decisions of an appellate court, including decisions on writ applications." Id. "However, the law of the case doctrine does not absolutely bar this court from reconsidering its prior decisions; rather it is discretionary." Id.
None of the facts since the previous rulings by this court and the supreme court on the earlier writ applications have changed. Even it they had, we note that the supreme court has held that there is no due process violati
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