Aetna Life and Cas. Co. v. Solloway

630 So. 2d 1353, 1994 WL 10198
CourtLouisiana Court of Appeal
DecidedJanuary 19, 1994
Docket25462-CA
StatusPublished
Cited by10 cases

This text of 630 So. 2d 1353 (Aetna Life and Cas. Co. v. Solloway) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aetna Life and Cas. Co. v. Solloway, 630 So. 2d 1353, 1994 WL 10198 (La. Ct. App. 1994).

Opinion

630 So.2d 1353 (1994)

AETNA LIFE AND CASUALTY COMPANY, Plaintiff-Appellant-Appellee,
v.
Allan SOLLOWAY and State Farm Mutual Insurance Company, et al., Defendants-Appellees-Appellants.

No. 25462-CA.

Court of Appeal of Louisiana, Second Circuit.

January 19, 1994.
Rehearing Denied February 17, 1994.

*1354 Theus, Grisham, Davis & Leigh by Thomas G. Zentner, Jr., Monroe, for Aetna Life and Cas. Co.

Hayes, Harkey, Smith, Cascio & Mullens by Charles S. Smith, Monroe, for Allan Solloway.

Hudson, Potts & Bernstein by Jan P. Christiansen, Monroe, for State Farm Fire & Cas. Ins. Co.

Walter C. Dunn, Monroe, for Daniel Smith.

Arbour & Aycock by Larry Arbour, West Monroe, for Allstate Ins. Co.

Before LINDSAY, BROWN and STEWART, JJ.

*1355 STEWART, Judge.

This subrogation case arises from a fire which occurred at a house owned by Frederick Reichenbach in Monroe. Daniel Glenn Smith was taking care of the house and had the use of it. Allan Solloway stayed in the house the night of the fire. Reichenbach's house and its contents were insured by the main plaintiff, Aetna Life and Casualty. Aetna paid Reichenbach for his damages, obtained a subrogation agreement, and filed suit against Solloway and Smith. Aetna also sued State Farm, the insurer of Solloway's parents, and Allstate which was the insurer of Smith's parents. State Farm and Allstate denied coverage under the homeowners' policies issued to the parents of Solloway and Smith.

The jury found Solloway and Smith negligent in causing the fire. The trial court found that neither was covered by his parents' insurance policy.

Aetna, Smith, and Solloway each appeal various factual determinations made by the jury, as well as the trial court's ruling on insurance coverage. Smith and Solloway also appeal the jury's determination that they were at fault. Accordingly, fault and coverage are the two main issues presented herein. We reverse the jury's fault determination, thus rendering moot the issue of coverage.

FACTS

On April 24, 1988, during the early morning hours between approximately 3:00 a.m. and 5:00 a.m., a fire occurred at 127 Jerald Street, Monroe, Louisiana. This property was owned by Frederick Reichenbach. Plaintiff, Aetna Life and Casualty Company, filed suit against (1) Allan Solloway and his parents' insurer, State Farm Fire and Casualty Insurance Company and (2) Daniel Glenn Smith and his parents' insurer, Allstate Insurance Company, to recover the amount it paid Reichenbach for damages arising from the fire. Aetna alleges that Allan Solloway and Daniel Glenn Smith were negligent in lighting, and/or failing to properly supervise the burning candle which set the residence afire.

After trial, a 12-person jury returned a verdict in favor of plaintiff, finding defendant, Solloway, 30 percent at fault and defendant, Smith, 70 percent at fault. Via a set of interrogatories, the jury specifically found that Solloway and Smith were each "negligent in lighting and/or failing to extinguish a candle at 127 Jerald Street, Monroe, Louisiana on April 24, 1988 and that this caused the fire." The jury also found that Smith "was negligent in any other of his acts or omissions (other than lighting and/or failing to extinguish a candle) and which negligence caused the fire."

On the question of coverage, the trial court held that neither Solloway nor Smith was covered for this fire under the provisions of the homeowners' policy issued to his respective parents. Each policy contains an exclusion which the trial court ruled was applicable to the instant facts.

Aetna appeals the jury's factual finding that Solloway was not a resident of his parents' household at the time of the fire. Aetna also appeals the trial court's ruling on issue of coverage as to both Smith and Solloway. Daniel Glenn Smith and Allan Solloway each appeal the issue of liability of his own liability, as well as the trial court's ruling on the coverage issue.

LEGAL PRINCIPLES

As a general proposition, the determination of liability in a negligence case usually requires proof of five separate elements. Wilson v. Dept. of Public Safety & Corrections, 576 So.2d 490, 493 (La.1991). Among these elements are proof that (1) a defendant has breached his duty to conform his conduct to a specific duty, (2) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries, and (3) the defendant's conduct was a legal cause of the plaintiff's injuries (the scope of liability or scope of protection element). Fowler v. Roberts, 556 So.2d 1, 4-5 (La.1989) (citation omitted).

In general, negligence is not presumed, and the burden of proving negligence by a preponderance of the evidence rests on the party alleging it. Blanchard v. Sotile, 394 So.2d 633, 635 (La.App. 1st Cir.1980), *1356 writ denied, 399 So.2d 601 (La.1981). The plaintiff bears the burden of proving his case by a preponderance of the evidence. Proof by direct or circumstantial evidence is sufficient to constitute a preponderance of the evidence when, taken as a whole, such proof shows that the fact or causation sought to be proved is more probable than not. Boudreaux v. American Insurance Co., 262 La. 721, 264 So.2d 621, 627 (1972) (citations omitted). The determination of preponderance depends on whether the evidence taken as a whole shows that the particular defendant's negligence was the most plausible or likely cause of the fire. Morales v. Houston Fire and Casualty Co., Inc., 342 So.2d 1248, 1250 (La.App. 4th Cir.1977), writ denied, 345 So.2d 49 (La.1977).

A party relying upon circumstantial evidence has borne his burden of proof only if the evidence taken as a whole shows that the defendant's fault was the most plausible cause of the fire and no other factor can as reasonably be ascribed as the cause. The probability of the fire having been caused by the defendant's fault must preponderate over the probability of causation from any other factor. Blanchard, supra. It is only by showing sufficient circumstances, raising inferences of defendant's negligent causation to outweigh other reasonable explanations, that a plaintiff bears his burden of proof in a fire loss. Blanchard, supra, at 635. The mere occurrence of a fire does not justify the inference of negligence because fires may occur from many separate and distinct causes. Toussant v. Guice, 414 So.2d 850, 854 (La.App. 4th Cir.1992); Barber v. Books, Etc., Inc., 316 So.2d 154 (La.App. 4th Cir. 1975), affirmed, 320 So.2d 559 (La.1975); Morales, supra.

Factual determinations, and findings of the respective percentages of fault, are entitled to great weight, and this court may not overturn those findings unless its review of the record reveals that the determinations are clearly wrong, manifestly erroneous. See Devereaux v. Allstate Ins. Co., 557 So.2d 1091, 1095 (La.App. 2d Cir.1990) and Economy Auto Salvage v. Allstate Ins. Co., 499 So.2d 963, 970 (La.App. 3d Cir.1986), writ denied, 501 So.2d 199 (La.1986).

Where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State of Louisiana, through the Department of Transportation and Development, 617 So.2d 880, 883 (La.1993). The trier of fact has a duty to reconcile conflicting versions of the testimony.

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Bluebook (online)
630 So. 2d 1353, 1994 WL 10198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aetna-life-and-cas-co-v-solloway-lactapp-1994.