OPINION ISSUED MAY 19, 1992
STATE FARM INSURANCE AS SUBROGEE OF DAVID HIMMELRICK
DIVISION OF HIGHWAYS
Claimant represents self.
James D. Terry, Attorney at Law, for respondent.
On October 9, 1989, the claimant's son, Norman Himmelrick, a resident of Weirton, Hancock
County, was driving his father's eleven month old truck on Route 105, more commonly identified
as Pennsylvania Avenue, within the municipal boundaries of Weirton. At approximately 2:00 p.m.
on that date, the claimant's son was involved in a three vehicle accident on Pennsylvania Avenue
near the intersection of Woodlawn Estates. The claimant's son was directed by a Weirton Police
Officer, Danny King, to pull the truck onto the berm while an accident investigation was conducted.
The claimant's son did as he was instructed, only to discovered he had parked the truck on an
exposed culvert. The right front tire dropped into the culvert and the front running board was
damaged as well as the right front hubcap. The claimant's insurance paid for the estimated $600.00
damage, and this claim is brought to recover the $250.00 deductible.
Donnie Kimble, who is employed as a highway maintenance foreman for the respondent in Hancock
County, testified that he investigated this claim. It is his opinion and the respondent's position that
the culvert involved is not within the respondent's right-of-way on Route 105. The respondent
therefore argues that the culvert is the responsibility of the property owner, and the failure of the
unidentified property owner to properly maintain a grate over the culvert is not negligence on the part
of the respondent. Mr. Kimble provided the Court with sufficient measurements to indicate the
culvert was privately installed without the respondent's knowledge or permit.
The burden of proof is upon the claimant to demonstrate with a preponderance of the evidence that
the respondent is responsible for the culvert. That burden has not been established. The claimant has
not provided evidence such as surveys or plats indicating that the respondent installed, permitted,
or otherwise is responsible for the culvert and its maintenance. As the State is neither an insurer nor
a guarantor of the safety of persons traveling on its highways, the Court must deny this claim. Adkins
v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947).
In accordance with the findings of fact and conclusions of law as stated herein above, the Court is
of the opinion to and does deny this claim.