Cannet v. Franklynn Pest Control Co., Inc.

985 So. 2d 270, 2008 WL 1883539
CourtLouisiana Court of Appeal
DecidedApril 29, 2008
Docket08-CA-56
StatusPublished
Cited by12 cases

This text of 985 So. 2d 270 (Cannet v. Franklynn Pest Control Co., 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
Cannet v. Franklynn Pest Control Co., Inc., 985 So. 2d 270, 2008 WL 1883539 (La. Ct. App. 2008).

Opinion

985 So.2d 270 (2008)

Francisca CANNET
v.
FRANKLYNN PEST CONTROL COMPANY, INC., Shawn Bagert And Trinity Universal Insurance Company.

No. 08-CA-56.

Court of Appeal of Louisiana, Fifth Circuit.

April 29, 2008.

*272 Nancy S. Silbert, Attorney at Law, New Orleans, LA, for Plaintiff/Appellee.

Jeffrey K. Warwick, Attorney at Law, Metairie, LA, for Defendant/Appellant.

Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and GREG G. GUIDRY.

WALTER J. ROTHSCHILD, Judge.

Defendant, Franklynn Pest Control Company, Inc. ("Franklynn"), appeals the July 17, 2007 and November 7, 2007 judgments of the trial court, finding their employee, Shawn Bagert, solely at fault for the accident in this case and awarding plaintiff, Francisca Cannet, $15,160.00 in damages. For the reasons which follow, we affirm.

FACTS AND PROCEDURAL HISTORY

This case arises from a motor vehicle accident that occurred on October 7, 2004 at the intersection of Hudson Street and Fairfield Street in Metairie, Louisiana. Mrs. Cannet contends that Franklynn's employee, Shawn Bagert, backed his truck into her vehicle. Mr. Bagert claims that he did not reverse his vehicle and that Mrs. Cannet rear-ended his truck.

On October 17, 2005, Francisca Cannet filed a Petition for Damages against Shawn Bagert, Franklynn Pest Control Company, and Trinity Universal Insurance *273 Company. In her petition, Mrs. Cannet claims that Mr. Bagert was solely at fault for the accident and that his negligence caused her to suffer property damage and personal injuries. She further asserts that Franklynn is liable for her damages, because it was the owner of the truck driven by Mr. Bagert and Mr. Bagert was operating the truck within the course and scope of his employment with Franklynn.

On June 28, 2007, trial of this matter was held. At the beginning of trial, Mr. Bagert was dismissed from the case and trial proceeded against Franklynn and Trinity Universal Insurance Company. The parties stipulated to the authenticity of photographs taken at the scene, the policy of insurance with Trinity Universal Insurance Company, and plaintiff's medical records, but defendants did not stipulate that all of plaintiff's medical treatment was related to the accident.

At trial, Francisca Cannet testified that on October 7, 2004, she was driving her 1997 BMW eastbound on Fairfield Street on the way to work. She asserted that when she stopped at a stop sign at the intersection of Fairfield Street and Hudson Street, she looked to her right and saw a truck on Hudson that was over to the right side of the street at a standstill. After looking to her left to make sure that no traffic was coming, she started to make a right turn and then suddenly felt an impact. Mrs. Cannet testified that the truck, which was driven by Shawn Bagert, "reversed" into her.

Mrs. Cannet testified that immediately after the accident, she was stiff, her neck hurt, her ankle was swollen, and she had upper back and shoulder pain. She thought the pain would go away, but it did not. On October 15, 2004, she saw a doctor for headaches, shoulder and neck pain, upper back pain, and ankle pain. She underwent therapy approximately three times per week and continued treating with her doctor until she was discharged on December 23, 2004. However, shortly after she stopped treating with her doctor, the pain returned when she would pull or lift things. She returned to the doctor on January 6, 2005 and continued with treatment and therapy until May 21, 2005. Mrs. Cannet testified that she did not have any physical complaints prior to the accident.

Shawn Bagert testified that at the time of the accident, he was operating a truck owned by his employer, Franklynn Pest Control Company. He stated that he was driving southbound on Hudson Street on the way to a job at 4236 Hudson Street. After he crossed the intersection of Hudson and Fairfield, he looked up at a house and noticed it was the 4200 block of Hudson Street. As he looked back down to check the address he was looking for, he felt a little bump. At first, he thought he had veered to the right and struck a tree, but he then realized that his vehicle had been struck from behind. Mr. Bagert testified that he never put his vehicle in reverse and that it was Mrs. Cannet who caused the accident.

At the conclusion of trial, the trial judge rendered a judgment in favor of Mrs. Cannet and against Franklynn, awarding her $10,000 in general damages, $4,660 in medical bills, and $500 for her property damage deductible, for a total damage award of $15,160, plus interest and costs. The trial judge stated that he believed Shawn Bagert was solely at fault for the accident by negligently traveling in reverse on Hudson Street. A written judgment was signed by the trial judge on July 17, 2007. On July 20, 2007, Franklynn filed a Motion for New Trial, which was denied by the trial court on November 7, 2007. Franklynn appeals the July 17, 2007 and November 7, 2007 judgments.

*274 LAW AND DISCUSSION

On appeal, in its first assignment of error, Franklynn contends that the trial court erred in failing to apply the presumption that in a rear-end collision, the rear vehicle is presumed at fault. It argues that, as the following motorist in a rear-end collision, Mrs. Cannet had the burden to prove lack of fault, but she failed to do so. Franklynn asserts that the evidence was insufficient to establish that Mr. Bagert was at fault, because Mr. Bagert testified that he did not back his vehicle and Mrs. Cannet testified that she did not see the truck before it hit her. Franklynn further claims that since Shawn Bagert was dismissed from the lawsuit prior to the start of trial, he was absolved of fault.

The court of appeal may not set aside the trial court's findings of fact, in the absence of manifest error or unless the findings are clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Furthermore, "where two permissible views of the evidence exists, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong." Stobart v. State, 617 So.2d 880, 882-883 (La.1993). A proper review of the record cannot be completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court. There must be a further determination that the factfinder's conclusion is reasonable in light of the entire record. Ambrose v. New Orleans Police Department Ambulance Service, 93-3099, 93-3110, 93-3112 (La.7/5/94), 639 So.2d 216, 220; Garrett v. Boh Bros. Const. Co., L.L.C., 04-804 (La.App. 5 Cir. 1/11/05), 894 So.2d 366, 369.

In a similar case, Triche v. Ross, 03-327 (La.App. 5 Cir. 7/29/03), 852 So.2d 539, the plaintiff claimed that the defendant's vehicle was backing up on the interstate and struck her vehicle, but the defendant denied backing her vehicle and claimed her vehicle was struck from behind by the plaintiff's vehicle. The trial court found the plaintiff to be more credible, determined that the defendant's vehicle had backed up and struck the plaintiff's vehicle, and found the defendant to be 100% at fault for the accident. On appeal, this Court affirmed the trial court's judgment, finding that credibility was the primary issue and that the trial court's findings could not be manifestly erroneous where there were two permissible views of the evidence.

In the present case, Mrs. Cannet testified that Mr. Bagert was backing up on Hudson Street and struck her vehicle. Mr. Bagert testified that he never put his vehicle in reverse and did not back up.

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Bluebook (online)
985 So. 2d 270, 2008 WL 1883539, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cannet-v-franklynn-pest-control-co-inc-lactapp-2008.