
    
      Opinion issued December 7, 1982
    
    DAIRYLAND INSURANCE COMPANY, SUBROGEE OF JESSE W. COBERN, JR. vs. DEPARTMENT OF HIGHWAYS
    (CC-82-10)
    
      Robert J. Louderback, Attorney at Law, for claimant.
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   WALLACE, JUDGE:

On September 11, 1981, Jesse W. Cobern, Jr. was driving his 1975 Chevrolet on Campbell’s Creek Drive in Charleston, Kanawha County. He encountered an area of construction, and because there was gravel on the road, he switched from the right-hand to the left-hand lane where the road was clear. When Mr. Cobern saw traffic approaching, he returned to his lane. Shortly afterward, he struck a manhole which was in the middle of his lane. The car stopped on impact. The front frame, fly wheel cover, oil pan, and windshield had to be replaced at a cost of $1,035.09, the amount of this claim. The amount includes $250.00 deductible, paid by Mr. Cobern.

Mr. Cobern testified that there were no flagmen or signs warning of construction or of the manhole. He also testified that he had travelled the road without incident previously, although in a different vehicle. He was aware of the construction, but not the manhole.

Respondent’s witness, Albert L. Fleshman, Jr., an employee of Department of Highways, stated that the construction involved the installation of sanitary, sewer, and force mains. This work was being performed by the Malden Public Service District, under contract with Department of Highways. According to the contract, responsibility for all work done, and any necessary repairs to the roadway rested with the Public Service District. There is no evidence in the record to establish that the respondent had notice of the condition. Even if there was notice, the Court is of the opinion that claimant’s negligence was equal to or greater than respondent’s, because of his knowledge of the construction area. For those reasons, the Court must deny the claim.

Claim disallowed.  