Alvin Mouton v. Progressive Security Ins. Co.

• Court: Louisiana Court of Appeal
• Decided: November 26, 2014
• Docket: CA-0014-0417
• Status: Unknown

Opinion

NOT FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

14-417

ALVIN MOUTON

VERSUS

PROGRESSIVE SECURITY INSURANCE COMPANY AND JULIE GASPARD

********** APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, DOCKET NO. 2013-4279 HONORABLE EDWARD RUBIN, PRESIDING **********

SYLVIA R. COOKS JUDGE

**********

Court composed of Sylvia R. Cooks, Marc T. Amy and John E. Conery, Judges.

AFFIRMED.

R. Scott Iles P.O. Box 3385 1200 West University Lafayette, LA 70506 (337) 234-8800 ATTORNEY FOR PLAINTIFF/APPELLANT Alvin Mouton

Henry G. Terhoeve Guglielmo, Marks, Schutte, Terhoeve & Love 320 Somerulos Street Baton Rouge, LA 70802 (225) 387-6966 ATTORNEY FOR DEFENDANT/APPELLEE Progressive Security Insurance Company COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

On September 28, 2012, Plaintiff, Alvin Mouton, was involved in an

automobile accident. The rear of Plaintiff’s lawn care trailer, which was attached

to his vehicle, was struck from behind by a vehicle driven by Defendant, Julie

Gaspard. Approximately two weeks after the accident, on October 12, 2012,

Plaintiff signed a “Full Release of All Claims with Indemnity” with Defendant,

Progressive Security Insurance Company, who was the insurer of Ms. Gaspard’s

vehicle. In conjunction with the signing of the release, Plaintiff received and

negotiated two settlement checks: One for $3,863.09, which was for the property

damage; and the other for $700.00, which stated on its face “FULL AND FINAL

RELEASE OF BODILY INJURY FOR 9/28/2012 MVA.”

Approximately nine months after accepting the settlement checks, Plaintiff

then contacted Progressive asserting he required dental work due to injuries

suffered from the accident. Plaintiff was informed by Progressive that he had

settled the matter in its entirety, and released Progressive and Ms. Gaspard in full.

Plaintiff then contacted an attorney and a Petition for Damages was subsequently

filed.

Plaintiff contended he was duped by Progressive into accepting a settlement

agreement releasing all claims arising from the subject automobile accident.

Plaintiff asserted he was under the belief he was only signing a settlement for his

property damages and not any claims for personal injury. He also noted he is

illiterate; and thus, could not possibly understand the paperwork presented to him

by Progressive.

Progressive filed a Motion to Enforce Settlement and Exception of Res

Judicata. A hearing on the motion was held, after which the trial court granted the

motion and exception. This appeal followed. Plaintiff asserts the trial court erred in granting Defendant’s Motion to Enforce Settlement and Exception of Res

Judicata.

ANALYSIS

Louisiana law is well settled that a valid compromise can form the basis for

an exception of res judicata. Ortego v. State, Dep’t. of Transp. and Dev., 96-1322

(La. 2/25/97), 689 So.2d 1358; Atwell v. Nat’l Safety Consultants, Inc., 97-1561

(La.App. 3 Cir. 4/1/98), 713 So.2d 495, writ denied, 98-1866 (La. 10/30/98), 727

So.2d 1164. “A compromise precludes the parties from bringing a subsequent

action based upon the matter that was compromised.” La.Civ.Code art. 3080. A

compromise settles only those differences that the parties clearly intended to settle,

including the necessary consequences of what they express. La.Civ.Code art.

3076. The compromise instrument is governed by the same general rules of

construction applicable to contracts. Ortego, 689 So.2d 1358. Interpretation of a

contract is the determination of the common intent of the parties. La.Civ.Code art.

2045. When the words are clear and explicit and lead to no absurd consequences,

no further interpretation may be made in search of the parties’ intent. La.Civ.Code

art. 2046.

Plaintiff initially argues on appeal that the Exception of Res Judicata should

have been heard as part of the trial on the merits. However, La.Code Civ.P. art.

929(B) provides that “[i]f the peremptory exception has been filed after the answer,

but at or prior to the trial of the case, it shall be tried and disposed of either in

advance of or on the trial of the case. . . .” The Exception of Res Judicata in this

case was filed after the answer; thus, the trial court had the discretion under

La.Code Civ.P. art. 929(B) to try the exception in advance of a trial on the merits.

To do so was not error, and Plaintiff had the ability to testify or present evidence at

the hearing on the exception as to his alleged lack of capacity.

2 Plaintiff had the opportunity to explain why he negotiated two separate

settlement checks, one which was for property damage and the other which stated

it was for bodily injury, but did not expect that he settled his claims for the

accident in full. Compromises are favored in the law, and the burden of proving

the invalidity of such an agreement lies with the party attacking it. Rivett v. State

Farm, 508 So.2d 1356 (La.1987); Soileau v. Allstate Ins. Co., 03-120 (La.App. 3

Cir. 10/15/03), 857 So.2d 1264, writ denied, 03-3170 (La. 2/6/04), 865 So.2d 724;

Bridges v. State, DOTD, 32,018 (La.App. 2 Cir. 6/16/99), 738 So.2d 1149. Having

shown the existence of a valid settlement agreement and the negotiation of a “full

and final” settlement check, it was incumbent on Plaintiff under the law to prove

the compromise was invalid due to his lack of capacity to contract. After

reviewing the record, we find no error by the trial court in finding Plaintiff failed to

meet that burden.

As Progressive points out, a reading of Plaintiff’s petition indicates Plaintiff

did not specifically allege that he did not understand the consequences of signing

the release or negotiating the checks. Rather, he alleged he was illiterate and that

no one read or explained the release to him. Louisiana Civil Code Article 1918

provides “[a]ll persons have capacity to contract, except unemancipated minors,

interdicts, and persons deprived of reason at the time of contracting.” Plaintiff is

not a minor, and did not allege he was an interdict or deprived of reason at the time

of the settlement. As Progressive notes, Plaintiff simply alleged he was illiterate,

which is a lack of the ability to read text, and not necessarily indicative that Article

1918 was applicable.

Plaintiff did not testify at the hearing as to the effect his illiteracy had on his

capacity to understand what he was signing. The trial court specifically asked

Plaintiff’s counsel if Plaintiff was present and intended to testify. Thus, the trial

3 court had no evidence or testimony to conclude there was a lack of capacity to

contract.

Moreover, Progressive presented the affidavit of Amanda Hanks, the

adjuster who handled plaintiff’s claim. Ms. Hanks attested she personally

explained to Plaintiff that the payments were being made in full settlement of his

and his wife’s claims arising from the subject accident. She also stated no one

informed her that Plaintiff was illiterate or had difficulty reading, and Plaintiff

never asked her to read the release or explain it to him. Nothing in Plaintiff’s

petition contradicts the statements in Ms. Hanks’ affidavit that the checks given to

Plaintiff were in full settlement of his claims.

Plaintiff cites the case of Higgins v. Spencer, 531 So.2d 768 (La.App. 1 Cir.

1988), for his argument that he had a lack of capacity to enter into a settlement

agreement with Progressive. However, in Higgins, there was evidence one of the

plaintiffs was a person with an intellectual disability and one was on pain

medication, rendering them incapable of “know[ing] what was going on.” Both of

these factors are not present in this case. Thus, Higgins is factually distinguishable.

After a review of the record, we find the trial court did not err in finding

Plaintiff failed to meet his burden of proof to vitiate the clear terms of the

settlement agreement he signed due to a lack of capacity to contract. Plaintiff

offered no testimony or evidence as to what he thought he was signing when he

signed the release, or his understanding of the purpose of the two checks he

received and negotiated.

4 DECREE

For the foregoing reasons, the judgment of the lower court is affirmed.

Costs of this appeal are assessed to plaintiff-appellant, Alvin Mouton.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules–Courts of Appeal, Rule 2-16.3.