Amlani v. McGee

135 So. 3d 1246, 13 La.App. 3 Cir. 950, 2014 WL 1305018, 2014 La. App. LEXIS 863
CourtLouisiana Court of Appeal
DecidedApril 2, 2014
DocketNo. 13-950
StatusPublished

This text of 135 So. 3d 1246 (Amlani v. McGee) 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
Amlani v. McGee, 135 So. 3d 1246, 13 La.App. 3 Cir. 950, 2014 WL 1305018, 2014 La. App. LEXIS 863 (La. Ct. App. 2014).

Opinion

PICKETT, Judge.

|, Rocky McGee appeals a judgment of the trial court finding him liable in the death of Amin Amlani, husband of the plaintiff, Rozina Amlani, and awarding damages to Mrs. Amlani and her children in the amount of $1.5 million.

STATEMENT OF THE CASE

At approximately 1:00 A.M. on February 18, 2010, Mr. Amlani drove to work on Grand Point Highway in Henderson. Before he arrived, he collided with an SUV driven by Mr. McGee. The collision propelled Mr. Amlani’s vehicle backward. Mr. Amlani died as a result of the injuries he sustained in this accident.

Mr. McGee, who was a seventeen-year-old unlicensed driver at the time of the accident, was returning from a party at a teen club. Mr. McGee admitted that he had consumed five or six beers that night. When his vehicle came to rest, Mr. McGee fled the scene of the crime. When he was apprehended later that night, his blood alcohol content was measured at 0.097%. Mr. McGee pled guilty to felony hit and run and first offense DWI because of his actions that night.

Mrs. Amlani, who was pregnant at the time of the accident, filed suit against Mr. McGee and his insurer, Progressive Security Insurance Company, on behalf of herself, her daughter, Alina, and her unborn child. The matter proceeded to a jury trial. Following a two-day trial, the jury found Mr. McGee at fault for causing the accident. The jury ascribed no liability to Mr. Amlani. The jury awarded Mrs. Am-lani $900,000 in damages for the wrongful death of her husband and each of her children $300,000 in damages for the wrongful death of their father. The jury awarded no damages for the survival action brought on behalf of Mr. Amlani.

Following the trial, Progressive paid its policy limits and was released from this litigation. Mr. McGee now appeals the judgment rendered against him.

| ^ASSIGNMENTS OF ERROR

Mr. McGee asserts four assignments of error:

1. The jury erred in finding Rocky McGee at fault in the accident (either wholly or partially) and refusing to find that the accident was the fault of Amin Amlani (and alternatively that Amin Amlani was comparatively at fault).

2. The trial court erred in failing to charge the jury properly on the presumption of Amlani’s fault.

3. The trial court erred in allowing evidence of loss of support, including a claim for future loss of income without [1249]*1249requiring the testimony of an economist.

4. The damage awards exceed that which is reasonable based upon the evidence presented and as allowed by law.

a. The award to Rozina Amlani of $900,000 was excessive.

b. The award of $800,000 to the minor child, Alina Amlani, and the award to Amin Amlani, unborn at the time of death, was excessive.

c. The claim of the unborn child Amin Amlani is barred as a matter of law and because that claim was prescribed.

i. Louisiana law does not support a wrongful death claim by an unborn child

ii. The claim of Amin Amlani was prescribed.

DISCUSSION

Apportionment of Fault

Mr. McGee’s first assignment of error questions the jury’s finding that Mr. McGee was completely at fault in causing the collision. The apportionment of fault is a finding of fact reviewed by this court under the manifest error standard of review. Stobart v. State, Dep’t Trans, and Dev., 617 So.2d 880 (La.1993). Under this standard, we must review the record in its entirety and determine if the jury’s factual findings were clearly wrong or manifestly erroneous. Id. After reviewing the entire record, an appellate court may not reverse reasonable findings of the trial court, even though we would have reached a different conclusion if sitting as the trier of fact. Fontenot v. Patterson Ins., 09-0669 (La.10/20/09), 23 So.3d 259.

UMr. McGee points to his own testimony, the testimony of his passenger, Victor Simon, and the testimony of an accident reconstruction expert, Vernon Tekell, to support his argument that Mr. Amlani was solely at fault in causing the accident. Mr. McGee testified that even though he had five or six beers that night, he was not impaired. He stated that he was in his lane driving fifty or fifty-five miles an hour when Mr. Amlani’s vehicle suddenly swerved in front of him when he was only one or one-and-a-half car lengths away. Mr. McGee testified that he tried to swerve to the left to avoid the collision, but he could not. Mr. McGee also testified that he had no driver’s license. He claimed that he fled the scene without checking on his passengers or Mr. Amlani because he was just “dazed-out.”

Mr. Simon testified that Mr. McGee was not driving unsafely that night. He was texting right before the accident, but did look up just before the collision. He testified that Mr. McGee tried to avoid the accident.

Mr. Tekell was qualified as an expert in accident reconstruction. His key findings were that the point of impact was in the eastbound lane of travel, in which Mr. McGee had the right of way. He stated that Mr. Amlani’s vehicle was angled at twenty to thirty degrees relative to the center stripe, while Mr. McGee’s vehicle was parallel to the center stripe. He estimated that Mr. McGee was travelling fifty-four to sixty-five miles an hour and Mr. Amlani was travelling between thirty-two and forty-seven miles an hour. The vehicles hit passenger side to passenger side.

The jury clearly did not find Mr. McGee’s testimony believable. A jury is in the best position to evaluate witness credibility, and the manifest error standard demands we afford great deference to the jury’s view of the evidence. Bonin v. Fer-[1250]*1250rellgas, Inc., 03-3024 (La.7/2/04), 877 So.2d 89. Mr. McGee’s testimony was clearly self-serving, and conflicted in key points with the testimony of his own 14expert. He testified that he was driving slower than the expert determined his speed at impact. He testified that he swerved to avoid the collision, but the expert found his vehicle was travelling straight when the accident occurred. He testified that he was in his lane. of travel when the expert testified that he had crossed the centerline. The jury was within its discretion if it concluded that Mr. McGee’s intoxication impaired his ability to drive, despite the testimony to the contrary.

Mr. McGee argues that if he shows that Mr. Amlani was in the wrong lane at the time of the collision, the burden of proof is on the plaintiff to exculpate him from fault, citing Stapleton v. Great Lakes Chemical Corporation, 627 So.2d 1358 (La.1993). We find it reasonable for the jury, in considering the testimony of Mr. Tekell, to conclude that Mr. Amlani had swerved into Mr. McGee’s lane of travel to avoid a collision with Mr. McGee, who had encroached into Mr. Amlani’s lane of travel at a high rate of speed. We find no manifest error in the jury’s apportionment of 100% of the fault in causing the accident to Mr. McGee.

Jury Charges

In his second assignment of error, Mr. McGee argues the trial court erred in rejecting the following jury instruction:

When there is a change of lanes by a motorist immediately preceding an accident, the burden of proof is on the motorist changing lanes to show that he first ascertained the movement could be made safely.

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Bluebook (online)
135 So. 3d 1246, 13 La.App. 3 Cir. 950, 2014 WL 1305018, 2014 La. App. LEXIS 863, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amlani-v-mcgee-lactapp-2014.