OPINION ISSUED DECEMBER 3, 1987
MOTORISTS MUTUAL INSURANCE COMPANY,
AS SUBROGEE OF NOAH THOMAS
DEPARTMENT OF HIGHWAYS
Claimant Noah Thomas appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
This action was filed to recover the cost of repair to a 1980
pickup truck, which occurred as the result of an accident on August
insurance company paid Noah Thomas and his wife, Dreama Thomas, its
for which it presently makes this claim.
Claimant's insured was travelling on Whiteman Ford Road in the
of Elkview, Kanawha
County, at approximately 7:00 p.m. The road was wet at the time of
accident. there had been
a heavy rain earlier. The highway has a gravel surface and is wide
enough for two vehicles to
pass each other in opposite lanes of travel. The claimant's insured
stated that there were several
big holes in the middle of the road. As the vehicle which he was
operating passed through the
area, the right side of the road collapsed, and the truck went over
bank and flipped on its
side. Claimant was travelling at about 7-10 miles per hour at the
of the accident. The bank
is six to seven feet high.
Mr. Calvert Mitchell, Supervisor for the Elkview headquarters of
respondent, testified that
there had been no complaints concerning the imminent collapse of
road. He had been on this
highway prior to the accident and had not noticed anything wrong with
Mr. Nelson Fowler, Maintenance Assistant to the District
respondent, testified that he is familiar with the road at the
site. He had received no
complaints prior to the accident that the road wa sin imminent
collapsing. He further
stated that to his knowledge no one employed by respondent had been
contacted regarding the
possibility that this roadway might collapse.
The State is neither an insurer nor a guarantor of the safety of
persons travelling on its
highways. Adkins vs. Sims, 130 W.Va. 645 (1947). For negligence of
respondent to be
shown, proof of notice of the defect in the road is required. Davis
Parts vs. Dept. of
Highways, 12 Ct.Cl. 31 (1977). In this case, there was no evidence
respondent knew or
should have known of the propensity of the road to collapse. The
disallow the claim.