
    
      OPINION ISSUED MARCH 20, 1990
    
    SHERI WAGGONER VS. DEPARTMENT OF HIGHWAYS
    (CC-89-420)
    Claimant appeared in person.
    James D. Terry, Attorney at Law, for respondent.
   PER CURIAM:

Claimant seeks $1,134.66 for property damage she incurred as the result of an accident on September 19, 1989. Claimant alleges negligence on the part of respondent due to respondent's poorly marked construction area in which her 1984 Chevrolet Camaro struck a hole.

Claimant testified that she was traveling on three-lane Garfield Avenue in Parkersburg, West Virginia, at approximately 11:00 p.m. At the time of the incident, claimant observed a police officer and respondent's construction truck. Respondent's crew was patching the road. Claimant was proceeding toward Southside at 30-35 mph in the middle lane of traffic when her vehicle struck a hole. She estimated the hole to be two or three feet long, and six to seven inches deep. She did not notice the hole before her vehicle struck it.

Respondent's truck was located about Vi mile from the hole. There was no flagging or other warning, with the exception of a "Slow" sign. The accident resulted in extensive damage to her vehicle, but claimant continues to drive it. she stated that there are two turns in the road. Respondent's crew was working in the first turn, and the hole was located in the second turn. Claimant stated that she did not travel the route frequently. She admitted that no claim was filed with her insurance company.

Vernon Cowan, a police officer with the City of Parkersburg, was in the vicinity of the accident directing traffic. He indicated that the respondent was repairing several large holes in the road. He did not witness the actual accident. Garfield Avenue is a heavily traveled, main thoroughfare in Parkersburg, according to Officer Cowan. It was his opinion that the hole which caused claimant's accident resulted from work done by the respondent.

Dale Deuley, a foreman with the respondent, was alerted on September 19, 1989, that "... the places that had been worked on that day had got rough." He described the construction work that had been performed that day: "Okay, the road had hooved up and we have to saw them out and replace this, you know in order to get them smooth, okay. The road had been sawed out, the concrete had been taken out, and they had been refilled with a base material which I'm sure you're all aware of that." The original excavation was about ten inches. He observed the site after the accident and stated that there was signing on both sides of Garfield Avenue. There were five or six excavations as described on Garfield Avenue.

The Court has determined that there is ample evidence to sustain a finding that the State had actual knowledge of a hazardous road condition, and failed to respond to that hazard appropriately. Further, the State in its response failed to warn travelers of the hazard in the customary manner. However, claimant's automobile insurance policy statement, submitted for the Court's consideration, indicates that the claimant has comprehensive coverage, and a $500.00 deductible. Claimant has not filed a claim with Dairy land Insurance Company. It is the opinion of the Court to award the claimant $500.00. It is the opinion of the Court to award the claimant $500.00, representing her deductible, and if her claim against her insurance carrier should be judicially denied, she may again pursue the matter here. The Court feels that it is premature to make any further award at this time.

Award of $500.00.  