Thibodeaux v. Burton, ABC Ins. Co. and XYZ Ins. Co. 538 So.

2d 1001 Facts: Plaintiffs Raphael Thibodeaux and his wife filed suit against several insurance carriers, the petition was later amended to include Pacific Employers Insurance Company. Pacific is the excess insurer of the plaintiffs employer, Barrierre Const. Co. Plaintiff sustained injuries which left him a quadriplegic while working as an employee of Barriere Const. Co. Plaintiff was working a night shift of road construction on Veterans Blvd. The4 site was marked with a flashing yellow sign which was used to detour traffic out of the lane where construction was taking place. The flashing sign was attached to a trailer, and the trailer was attached to a pick-up truck owned by the plaintiff. David Burton collided with the sign, forcing the sign and the truck to strike the plaintiff. Burton was intoxicated, failed a filed sobriety test at the scene, and later had a B.A.C. of . 20%. Procedural History: Pacific failed to answer the petition timely. The plaintiffs obtained a $2 million dollar default judgment against Pacific Trial court refused to grant a new trial. Appellate Court (5th Cir.) upheld trial court ruling. Sup. Ct granted writ. Issues: 1) Was the truck in use at the time of the accident with respect to the language of the Pacific policy? (Sup. Ct. said it was in use b/c the lights were on directing traffic) 2) Did the trial court error when Pacific should have only been involved when damages exceed $100,000, not $20,000. (Barrier should have maintained an underlying policy for the first $1 million of liability) 3) Did the trial court abuse its discretion by not granting a new trial? 4) Was the trial courts refusal to grant a new trial in the interest of justice? Holding: Motion for new trial reversed, Case Remanded Rule: Although the trial judge has much discretion regarding applications for a new trial, in a case of manifest abuse the appellate court will not hesitate to set aside the trail courts ruling and grant a new trial. (pg. 72) The excess insurer is only liable for damages that exceed the limits of the underlying policy as the insured should have maintained it. Analysis: The motion for a new trial to the trail judge was timely. The motion contained a written rejection of the UM coverage signed by the president of Barriere. The trial court was presented with serious allegations by Pacific that there was no liability on their part. The plaintiffs attorney was aware that the Pacific policy did not provide UM coverage, and failed to inform the trial judge. The waiver of the UM coverage is good grounds for granting a new trial.