Broussard v. Premiere, Inc.

861 So. 2d 734, 2003 WL 22909133
CourtLouisiana Court of Appeal
DecidedDecember 10, 2003
Docket03-668
StatusPublished
Cited by2 cases

This text of 861 So. 2d 734 (Broussard v. Premiere, Inc.) 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
Broussard v. Premiere, Inc., 861 So. 2d 734, 2003 WL 22909133 (La. Ct. App. 2003).

Opinion

861 So.2d 734 (2003)

Jessica BROUSSARD, as natural tutrix of her minor child, Lannah D. Broussard
v.
PREMIERE, INC., Todd Richard and Reliance Insurance Company.

No. 03-668.

Court of Appeal of Louisiana, Third Circuit.

December 10, 2003.

*735 Bret C. Beyer, Sr., Hill & Beyer, Lafayette, LA, for Plaintiffs/Appellants, Jessica and Lannah Broussard.

Roch P. Poelman, Lemle & Kelleher, L.L.P., New Orleans, LA, for Defendants/Appellees, Premiere, Inc., Todd Richard and Louisiana Insurance Guaranty Association.

Court composed of NED E. DOUCET, Jr., Chief Judge, SYLVIA R. COOKS, and MICHAEL G. SULLIVAN, Judges.

DOUCET, Jr., Chief Judge.

Plaintiffs Jessica and Lannah D. Broussard, appeal a judgment of the trial court dismissing their suit for damages against Defendants, Premiere, Inc., Todd Richard and the Louisiana Insurance Guaranty Association (LIGA)(successor to the now defunct Reliance Insurance Company), pursuant to the provisions of La.R.S. 22:1386. We affirm the judgment of the trial court.

FACTS

On November 19, 1998, Plaintiff, Lannah Broussard, who was 14 years old at the time, was a guest passenger in the rear seat of a 1997 Mitsubishi Mirage being operated by her friend, Casey Amy. The Mitsubishi was owned by Casey's father, Richard Amy, and insured by Louisiana Farm Bureau Insurance Company (Farm Bureau). The Amy vehicle, which was stopped waiting for traffic in front of it to clear, was struck from the rear by a 1995 Chevrolet Suburban owned by Premiere, Inc. and being driven by its employee, Todd Richard. The suburban was insured by Reliance Insurance Company (Reliance).

Upon impact, Lannah, who testified that she was not wearing a seat belt at the time of the accident, was thrown forward, sustaining a contusion to her face when it stuck the rear of the front seat. She stated that immediately after the impact she experienced pain in her jaw, neck and back.

Following the accident Lannah received treatment by a number of medical professionals: Dr. James Pearce, a D.D.S., who treated Lannah for temporomandibular (TMJ) disorder; Dr. Clifton W. Shepherd, Jr., an orthopaedic surgeon; Dr. Leo deAlvare, a neurologist; Dr. Angela Mayeux, another orthopaedic surgeon; and Dr. Ladislas Lazaro, IV, a rheumatologist. Lannah was also seen by Dr. Robert D. Franklin, who specializes in physical medicine and rehabilitation and Dr. Paul D. Ware, a specialist in psychiatry and neurology who devotes much of his practice to the investigation and treatment of fibromyalgia. Lannah also briefly saw two psychologists, a chiropractor and underwent two courses of physical therapy.

Lannah was involved in a second, serious accident on January 28, 2000 (the pick-up truck in which she was riding with seven other teenagers flipped over). This accident resulted in a broken nose which required surgical repair by Dr. Barrett Alldredge. Subsequently, the sole father-figure in her life, Michael Deville, was killed in an accident on June 14, 2000. There is no doubt that not all of her *736 treatment was due to her accident of November 19, 1998, i.e., she was not seen by any mental health professional until after Mr. Deville was killed.

As will be discussed below, the only real issue at the trial level was did Plaintiffs' damages exceed $105,000.00. The trial judge found they did not, and dismissed Plaintiffs' suit. Plaintiffs appeal.

LAW AND DISCUSSION

In the rear-end accident at issue, Todd Richard, the driver of the follow vehicle was found to be at fault. Mr. Richard, who was employed by Premiere, Inc., was driving a company vehicle, and was found to be in the course and scope of his employment at the time of the accident. Premiere's automobile liability carrier was Reliance Insurance Company (Reliance). The car in which Lannah Broussard was a guest passenger was insured by Louisiana Farm Bureau Insurance Company (Farm Bureau). The Farm Bureau policy provided $100,000/$300,000 in both liability and underinsured/uninsured (UM) coverage, as well as $5,000.00 in medical payments coverage. Sometime after the accident, Reliance went into bankruptcy and LIGA was made a defendant in the place of Reliance. LIGA was established by the legislature as part of the Louisiana Revised Statutes, Title 22, Insurance, Chapter 1, Insurance Code. The purpose of LIGA can be found in La.R.S. 22:1376, which states in part; "[t]he purpose of this Part is to provide a mechanism for the payment of covered claims under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer." Louisiana Revised Statute 22:1386(A) provides as follows:

A. Any person having a claim against an insurer under any provision in an insurance policy, other than a policy of an insolvent insurer which is also a covered claim, shall be required first to exhaust his rights under such policy. Such other policies of insurance shall include but shall not be limited to liability coverage, uninsured or underinsured motorist liability coverage, or both, hospitalization, coverage under self-insurance certificates, coverage under a health maintenance organization or plan, preferred provider organization or plan, or similar plan, and any and all other medical expense coverage. All entities that are prohibited from recovering against the association, as specified in R.S. 22:1379(3)(b), shall also be considered insurers for purposes of this Subsection. As to the association, any amount payable by such other insurance shall act as a credit against the damages of the claimant, and the association shall not be liable for such portion of the damages of the claimant.

Thus, when Reliance became insolvent, Farm Bureau became the "primary" insurer, i.e., the insurance company to which Plaintiffs had to look first, for payment of their damages. Under the provisions of the insurance code, LIGA only became liable for any damages in excess of those recoverable from Farm Bureau, i.e., those damages in excess of $105,000.00.

After hearing the testimony and examining the medical records, bills and depositions entered into evidence, the trial judge found that Plaintiffs had not proven that their damages exceeded the amount for which Farm Bureau was responsible.

This appeal turns on factual determinations of the trial judge. Recently, in Cenac v. Public Access Water Rights Assn., 02-2660, pp. 9-10 (La.6/27/03), 851 So.2d 1006, 1023, our supreme court reviewed the law applicable to the appellate review of cases involving factual determinations at the trial level:

*737 In civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard which precludes the setting aside of a trial court's finding of fact unless those findings are clearly wrong in light of the record reviewed in its entirety. Rosell v. ESCO, 549 So.2d 840 (La.1989). A reviewing court may not merely decide if it would have found the facts of the case differently, the reviewing court should affirm the trial court where the trial court judgment is not clearly wrong or manifestly erroneous. Ambrose v. New Orleans Police Department Ambulance Service, 93-3099, 93-3110, 93-3112, p. 8 (La.7/5/94), 639 So.2d 216, 221.

At trial, counsel for Plaintiffs stipulated that LIGA was entitled to a "credit" equal to Farm Bureau's exposure. However, on appeal he argues that this "credit" should not extend to Mr. Richard and/or Premiere, stating that the trial judge, this court and the fifth circuit erred in finding so.

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Cite This Page — Counsel Stack

Bluebook (online)
861 So. 2d 734, 2003 WL 22909133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/broussard-v-premiere-inc-lactapp-2003.