
    
      OPINION ISSUED JULY 12, 1993
    
    MOLLY A MCCALLISTER VS. DIVISION OF HIGHWAYS
    (CC-92-310)
    Claimant present in person.
    Glen A. Murphy, Attorney at Law, for respondent.
   PER CURIAM:

Claimants, Molly A. McCallister and Ronnie F. Burgess, seek an award from the Division of Highways for property damage sustained when their vehicle struck pieces of broken asphalt on Interstate 64 on September 24, 1992 at 7:30 a.m. in Kanawha County in the city of Charleston.

From the evidence adduced at the hearing on March 25, 1993, it appears that Ms. McCallister was driving a 1987 Chevrolet Celebrity Eurosport on Interstate 64 and Mr. Burgess was a passenger, when a broken piece of asphalt, approximately six inches long and three inches wide, flew up and struck the left side of the hood of the vehicle, bounced up, and, thereupon, struck and cracked the windshield. The estimated cost of repairs is $1,501.73. Both claimants stated that they did not see the debris in the road until the vehicle had already struck it. Mancie Legg, Maintenance Supervisor for the respondent, testified that the debris on the interstate was liquid asphalt which had been used to seal an expansion joint. Apparently, the liquid asphalt had deteriorated and had come out of the expansion joint. He stated that there had been no complaints concerning this expansion joint prior to claimant’s incident.

This Court finds, after reviewing the record, that the respondent had constructive, if not actual notice, of the deteriorated condition of the expansion joint on Interstate 64, a heavily traveled highway through the city. This deteriorated condition is not one that occurs instantaneously. Therefore, the Court is of the opinion that the respondent is guilty of negligence for failing properly to maintain this portion of the interstate.

On the date of the hearing, the Court requested that Ms. McCallister furnish a copy of the insurance policy which covers her vehicle in order for the Court to determine the amount of the deductible if any, available to her under the policy. Ms. McCallister provided documentation from her insurance company which establishes that she currently has a $500.00 deductible clause; however, correspondence from the insurance carrier states that there was no coverage in effect on the date of the incident herein. Therefore, the Court makes an award to her for the damages to her vehicle in the amount of $1,501.73.

Award of $1,501.73 to Molly A. McCallister.

Judge Webb did not participate in the hearing or decision of this claim.  