Brooks v. Reimonenq

44 So. 3d 824, 2010 La.App. 4 Cir. 0296, 2010 La. App. Unpub. LEXIS 433, 2010 WL 3063999
CourtLouisiana Court of Appeal
DecidedJuly 21, 2010
DocketNo. 2010-CA-0296
StatusPublished
Cited by4 cases

This text of 44 So. 3d 824 (Brooks v. Reimonenq) 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
Brooks v. Reimonenq, 44 So. 3d 824, 2010 La.App. 4 Cir. 0296, 2010 La. App. Unpub. LEXIS 433, 2010 WL 3063999 (La. Ct. App. 2010).

Opinion

PATRICIA RIVET MURRAY, Judge.

| defendants in this personal injury action, Roy Reimonenq and his insurer, U.S. Agencies, appeal the trial court’s judgment rendered in favor of plaintiff, Steve Brooks. For the reasons that follow, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Mr. Brooks’ petition for damages alleges that on February 25, 2008, he was driving northbound on Franklin Avenue in New Orleans, Louisiana, when Mr. Reimonenq suddenly backed his vehicle out of a driveway, colliding with Mr. Brooks’ vehicle. U.S. Agencies insured Mr. Reimonenq’s vehicle.

The matter was tried in the First City Court for the Parish of Orleans. Mr. Reimonenq was personally served, but failed to appear at trial. No explanation was provided for his absence. The trial court heard testimony from two witnesses, Mr. Brooks and Michelle Keys, a claims adjuster for U.S. Agencies.

Mr. Brooks testified that he was driving along Franklin Avenue when Mr. Reimo-nenq suddenly backed out of a driveway. He stated that he applied his brakes but was unable to stop. The police were called to make a report of the accident. Mr. Brooks sought medical treatment at United Chiropractic Clinic the following day for headaches and pain in his neck and back. He was treated at |2United Chiropractic Clinic from February 26, 2008, until September 25, 2008. A certified copy of Mr. Brooks’ medical records was introduced. Mr. Brooks also testified that his vehicle sustained damage to the front bumper. A vehicle repair estimate of $1,500.00 was submitted into evidence.

In light of Mr. Reimonenq’s absence at trial, Mr. Brooks attempted to introduce the police report as well as Mr. Reimo-nenq’s answers to interrogatories. Counsel for Mr. Brooks explained that he was seeking to introduce the police report (generally considered inadmissible evidence) only because Mr. Reimonenq had deferred to the police report in answering each interrogatory and in responding to [827]*827requests for production of documents. However, the trial court sustained defense counsel’s objection to the introduction of the police report.

Ms. Keys testified that as a litigation adjuster for U.S. Agencies, she had been assigned to review the claim against Mr. Reimonenq. She acknowledged that Mr. Reimonenq was the insured on the claim and stated that U.S. Agencies had made a liability determination that was adverse to its insured.

Defense counsel objected to the testimony of Ms. Keys, arguing she should not be allowed to testify because the U.S. Agencies’ claim file contained hearsay information of which she had no personal knowledge. The trial court overruled the objection, citing the business records exception to the hearsay rule.

After the evidence was presented, defendants moved for a directed verdict, which was denied. The trial court found Mr. Reimonenq liable for the accident, and awarded Mr. Brooks $14,000.00 in general damages, $4,755.00 in medical expenses, and $1,500.00 in property damage to his vehicle. Defendants’ timely suspensive appeal followed.

^ISSUES

In this appeal, defendants assert two assignments of error: (1) the trial court erred in allowing Ms. Keys’ hearsay testimony; and (2) the trial court erred in rendering judgment in favor of Mr. Brooks where Mr. Brooks failed to prove all of the elements of his claim, i.e., he failed to identify Mr. Reimonenq as the driver. We address each issue in turn.

DISCUSSION

Assignment of Eiror No. 1: The trial court erroneously allowed into evidence inadmissible hearsay records and testimony from Ms. Keys.

Defendants assert that because Ms. Keys’ knowledge of the facts of the accident is based solely on hearsay evidence, i.e., the police report, and not from any statements taken from the insured, her testimony constitutes hearsay within hearsay. However, while we recognize that police reports are considered to be inadmissible hearsay, the record in the present case does not support defendants’ assertion that U.S. Agencies’ liability determination was based entirely upon the police report. To the contrary, Ms. Keys testified that although she had not personally taken a statement from Mr. Reimonenq, she was certain that a statement had been taken from him during the course of the investigation.

Defendants also argue that the trial court erroneously applied the business records exception to the hearsay rule in permitting the testimony of Ms. Keys. Defendants assert that a proper foundation was never laid in order to qualify the U.S. Agency claim file under the business records exception because there was no testimony regarding the preparation or circumstances that produced the claim file.

The Louisiana Code of Evidence defines hearsay as “a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in |4evidence to prove the truth of the matter asserted.” La. C.E. art. 801(C). Hearsay is inadmissible at trial unless one of the exceptions in the Code of Evidence applies. La. C.E. art. 802. Generally, a trial court’s rulings on evidentiary issues will not be disturbed absent a clear abuse of discretion. Stewart v. Ice, 07-0871, p. 7 (La.App. 4 Cir. 4/9/08), 982 So.2d 928, 933 (citing Jones v. Peyton Place, Inc., 94-0574, pp. 11-12 (La.App. 4 Cir. 5/22/96), 675 So.2d 754, 763).

La. C.E. art. 803 provides the business records exception to the hearsay rule, stating in relevant part:

[828]*828The following are not excluded by the hearsay rule, even though the declarant is available as a witness;
(6) Records of regularly conducted business activity. A memorandum, report, record, or data compilation, in any form, including but not limited to that which is stored by the use of an optical disk imaging system, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if made and kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make and to keep the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. This exception is inapplicable unless the recorded information was furnished to the business either by a person who was routinely acting for the business in reporting the information or in circumstances under which the statement would not be excluded by the hearsay rule. The term “business” as used in this Paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Public records and reports which are specifically excluded from the public records exception by Article 803(8)(b) shall not qualify as an exception to the hearsay rule under this Paragraph.

It is well settled that the witness laying the foundation for admissibility of business records need not have been the preparer of the records. Finch v. ATC/Vancom Management Services Ltd. Partnership, 09-0483, p. 8 (La.App. 5 Cir. 1/26/10), 33 So.3d 215, 220. Under article 803(6), what is necessary is that a |scustodian or other qualified witness explain the record-keeping procedures of the business and thus lay the foundation for the admissibility of the records. Id.

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Bluebook (online)
44 So. 3d 824, 2010 La.App. 4 Cir. 0296, 2010 La. App. Unpub. LEXIS 433, 2010 WL 3063999, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brooks-v-reimonenq-lactapp-2010.