
    
      Opinion issued January 28, 1981
    
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY SUBROGEE FOR JAMES A. McDOUGAL and JAMES A. McDOUGAL vs. DEPARTMENT OF HIGHWAYS
    (CC-78-250)
    
      Scott E. Wilson, Attorney at Law, for claimant.
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   WALLACE, JUDGE:

The claimant filed this claim against the respondent for damages to his 1974 Vega station wagon on October 15, 1976, at approximately 11:00 a.m. On the date of the accident, the claimant was proceeding in his vehicle in a northerly direction on West Virginia Route 19 from Shinnston, West Virginia, to his home. The weather was clear. The claimant was driving at a reduced speed because he had seen the respondent’s workers removing dirt from the highway earlier that day. As he approached the area where the men were working, he observed an oncoming vehicle negotiating a curve ahead. When the driver of the other vehicle, later determined to be Anthony Tassone, saw the men in the road, he veered into the claimant’s lane of traffic. The claimant attempted to drive onto the berm to avoid an accident, but was struck by the Tassone vehicle, causing damage to the front and left front of the claimant’s automobile in the amount of $1,433.81.

Both the claimant and Mr. Tassone testified that they saw no signs or flagmen to warn of the workmen on the highway.

William Aliveto, Jr., one of the respondent’s workmen, testified that he and James Kessler had been assigned to remove the dirt and debris from the highway; that they were dispatched to the work area without any warning signs or flagmen; and that he had sent his coworker, Kessler, to the curve to warn oncoming motorists, but when Kessler arrived at the curve, the Tassone vehicle was approaching. Kessler shouted to Aliveto, who jumped into a ditch to avoid being struck.

From the record, it is the opinion of the Court that the respondent’s failure to post proper warning signs and flagmen at the scene of the accident constituted negligence which was the proximate cause of the accident.

It appears that, of the total amount of $1,433.81 claimed, $1,333.81 was paid by State Farm Mutual Automobile Insurance Company, who thereupon became subrogated, and the sum of $100.00 represented the deductible portion of McDougal’s collision insurance. Accordingly, the Court awards State Farm Mutual Automobile Insurance Company the sum of $1,333.81, and James A. McDougal, the sum of $100.00.

Award of $100.00 to claimant James A. McDougal.

Award of $1,333.81 to claimant State Farm Mutual Automobile Insurance Company.  