Burton v. Foret

484 So. 2d 753
CourtLouisiana Court of Appeal
DecidedFebruary 25, 1986
DocketCA841223
StatusPublished
Cited by9 cases

This text of 484 So. 2d 753 (Burton v. Foret) 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
Burton v. Foret, 484 So. 2d 753 (La. Ct. App. 1986).

Opinion

484 So.2d 753 (1986)

James A. BURTON, Jr.
v.
John Dudley FORET and Casualty Reciprocal Exchange Company, All State Insurance Company[*].

No. CA841223.

Court of Appeal of Louisiana, First Circuit.

February 25, 1986.

*756 Stephen M. Larussa, Houma, for plaintiff and appellee—James A. Burton, Jr.

Christopher P. Riviere, Thibodaux, for third party defendant and appellant—All State Ins. Co.

Diana Zink, Quentin Urquhart, Jr., New Orleans, for defendant—Casualty Reciprocal Exchange Ins. Co.

Before CARTER, SAVOIE and ALFORD, JJ.

ALFORD, Judge.

This is an appeal from a judgment of the trial court in which a jury returned a verdict in favor of plaintiff, James Burton, Jr., and against defendant, Allstate Insurance Company (Allstate). Mr. Burton was awarded $186,500.00 plus penalties and attorney's fees for injuries sustained in an automobile accident.

FACTS

On September 23, 1981, Mr. Burton, a thirty-year-old cabinet maker and shop foreman, was injured when a pickup truck he was operating was struck by a truck driven by defendant, John Foret, Jr. The 1978 Datsun truck driven by Mr. Burton was owned by Mrs. Iris Chauvin.

Mr. Burton filed suit on May 10, 1982, against Mr. Foret and his insurer, Casualty Reciprocal Exchange Company (Casualty), alleging that he sustained injuries to his neck, back and body. Mr. Burton later filed a first supplemental and amended petition wherein he named Allstate, Mrs. Chauvin's uninsured motorist carrier, as an additional defendant. The liability of Mr. Foret was stipulated prior to trial and Casualty tendered Mr. Foret's $5,000 policy limits which was accepted by Mr. Burton.

After trial on the merits, the jury returned the following answers to interrogatories, finding Allstate liable to Mr. Burton.

A. Past medical expenses: $14,000.
B. Future medical expenses: $4,000.
C. Past physical pain and suffering: $10,000.
D. Future physical pain and suffering: $20,000.
E. Past mental pain and suffering, mental anguish and distress: $20,000.
F. Future mental pain and suffering, mental anguish and distress: $10,000.
G. Past lost wages: $21,000.
H. Future lost wages and impairment of earnings capacity: $80,000.
I. Physical disability: $7,500.
Total: $186,500.
No. 3: If your answer to Question 1 was "Yes", was the defendant Allstate Insurance Company arbitrary, capricious, or without probable cause in refusing to pay plaintiff's claim?
Answer: Yes.
No. 4: If your answer to Question 3 was "Yes" express below in dollar amounts the total amount which Mr. Burton is entitled to, and which was provided by the evidence for attorney fees:
Answer: $16,500......

Allstate appealed assigning the following specifications of error:

1. The trial court erred in allowing the policy limits of the Allstate policy to be presented to the jury.
2. The jury erred in finding that Mr. Burton's back injury was related to the accident.
3. The jury erred in awarding excessive damages.
4. The jury erred in finding that Allstate acted arbitrarily and capriciously in failing to pay Mr. Burton's claim.

DISCLOSURE OF POLICY LIMITS TO THE JURY

Allstate contends that the trial court committed manifest error and that it was denied equal protection under the laws as mandated by both the federal and state constitutions as a result of the trial court allowing reference to the $100,000 Allstate policy limits. The policy limits were mentioned by Mr. Burton's counsel during his opening statement and by Mr. Richard Hagey, Allstate's claims adjuster in charge of *757 Mr. Burton's claim, during cross-examination by Mr. Burton's counsel.

At trial, the Allstate insurance policy was entered into evidence by joint stipulation of counsel. (Emphasis ours). Mr. Burton contends that evidence of pre-trial settlement negotiations and the policy limits were necessary to establish that Allstate was arbitrary, capricious and without probable cause in failing to pay Mr. Burton's claim. It also appears that Allstate felt that evidence of the policy limits was necessary in providing the jury with evidence of the pre-trial settlement negotiations. At trial, Allstate's attorney elicited the amount of the policy limits from its witness, Mr. Hagey. The following colloquy took place between Allstate's attorney and Mr. Hagey during direct examination:

Q. At some point in time an offer was made; is that correct?
A. Yes, it was.
Q. What was that offer?
A. My offer, Allstate's offer, was that of $40,000 to the plaintiff.
Q. What was the plaintiff's offer?
A. Policy limits.
Q. And how much was that, sir?
A. The policy limits?
Q. Yes, sir.
A. $100,000.

Pre-trial settlement negotiations are admissible for the purpose of testing the insurer's conduct in handling the claims being asserted by its insured under the uninsured motorist coverage. Launey v. Thomas, 379 So.2d 27 (La.App. 3rd Cir. 1979), writ denied, 381 So.2d 1233 (La. 1980). It is apparent that both parties felt that the amount of the policy limits was a necessary factor in the determination of whether Allstate's conduct in failing to pay Mr. Burton's claim was arbitrary or capricious. It must be noted that the jury was charged that the evidence of the pre-trial settlement negotiations was to be considered only for the specific purpose of determining whether Allstate acted arbitrarily, capriciously and without probable cause in failing to pay Mr. Burton's claim.

Furthermore, in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), counsel for plaintiff and defendant had stipulated the insurance coverage and its limits. The trial court refused to inform the jury as to the contents of the stipulation. The supreme court held that the trial court committed manifest error, stating: "In a jury trial, the jury is entitled to know all the evidence. We know of no statute or jurisprudence which, in the absence of agreement between the litigants, would permit admissible evidence to be withheld from the jury." Bishop v. Shelter Insurance Company, 461 So.2d 1170 (La.App. 3rd Cir. 1984), writ denied, 465 So.2d 737 (La.1985).

In light of the fact that both counsel entered the policy into evidence by stipulation and more importantly, Allstate's own witness testified as to the amount of the policy limits, we find that the trial court was not clearly wrong in allowing the policy limits into evidence for such a limited purpose. Likewise, we find that Allstate was not denied its equal protection under the laws.

CAUSATION

Allstate contends that the jury erred in finding that Mr. Burton's back injury was caused by the accident. Allstate asserts that Mr. Burton did not complain of back pain until about one year after the accident. Four of Mr. Burton's treating physicians testified that they had no records of back pain experienced by Mr. Burton. However, Mr. Burton testified at trial that he may have complained about his back but did not persist with complaints.

Dr. R.C.

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Cite This Page — Counsel Stack

Bluebook (online)
484 So. 2d 753, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burton-v-foret-lactapp-1986.