Case v. Shelter Insurance Co.

48 So. 3d 1196, 10 La.App. 3 Cir. 302, 2010 La. App. LEXIS 1343, 2010 WL 3894121
CourtLouisiana Court of Appeal
DecidedOctober 6, 2010
DocketNo. 10-302
StatusPublished
Cited by2 cases

This text of 48 So. 3d 1196 (Case v. Shelter Insurance Co.) 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
Case v. Shelter Insurance Co., 48 So. 3d 1196, 10 La.App. 3 Cir. 302, 2010 La. App. LEXIS 1343, 2010 WL 3894121 (La. Ct. App. 2010).

Opinion

GREMILLION, Judge.

11 Plaintiffs/Appellants, Patricia and Patrick Case, appeal the judgment rendered following the jury trial of their personal injury claims from a motor vehicle accident in St. Martin Parish. For the following reasons, we affirm as amended.

FACTS

The motor vehicle accident at issue occurred on May 22, 2006. Patricia Case was driving from work with the St. Martin Parish School Board toward Loreauville, Louisiana, to purchase groceries. She testified that she happened upon the tractor driven by Barry Frederick, an employee of Burt Oubre, d/b/a Burt Oubre Farms, which was traveling in the same direction. Mrs. Case testified that as she turned from Louisiana Highway 86 onto Oday Road, she saw the tractor already on the road. She followed the tractor “a little ways” before deciding to pass it: Her testimony was vague as to the distance from her the tractor was when she first noticed it. She testified that she saw no lights whatsoever on the tractor. As she executed the passing maneuver, Mrs. Case’s vehicle was struck by the tractor, which had turned left across her path. The initial collision deployed Mrs. Case’s air bag. Thereafter, a second collision occurred.

Frederick testified that he was cutting drains in his employer’s sugar cane fields. He had finished cutting drains on one field [1198]*1198and was proceeding to another. This necessitated turning onto Oday Road. He traveled approximately two-tenths of a mile to reach his next field. The tractor’s hazard lights, or “flashers,” were activated. He checked his rear view mirror in the cab and saw no approaching vehicles. Frederick did not signal a left-hand turn. As he began to turn, Frederick heard the sound of tires screeching. He jerked the tractor back to the right, but was unable to avoid colliding with Mrs. Case’s vehicle. The accident occurred perhaps 12two feet across the center line of Oday Road, within Mrs. Case’s passing lane.

Following the collision, Mrs. Case experienced back pain radiating into her legs. She initially sought treatment from her family physician, Dr. Kenneth Fournet, with whom she treated for some months. Thereafter, Mrs. Case was treated by orthopedic surgeon Dr. Allen Johnston. Ultimately, Dr. Johnston referred Mrs. Case to Dr. Louis Blanda, who performed a lumbar microdiskectomy and laminectomy in December 2007.

The Cases filed suit against Frederick, Oubre, and Shelter Insurance Company. The suit was tried in March 2009. The jury found Mrs. Case 25% and Frederick 75% comparatively negligent. Mrs. Case was awarded $200,294.32 in general and special damages. Mr. Case was awarded $5,000.00 in past and future loss of consortium, services, and society. The Cases appealed this judgment.

ASSIGNMENTS OF ERROR

The Cases assign the following errors: 1) The jury manifestly erred in assessing Patricia Case with fault, and 2) The jury manifestly erred in awarding $49,998.001 in general damages.

ANALYSIS

The Cases’ assignments of error involve findings of fact by the jury. As such, they are subject to review for manifest error. The Louisiana Supreme Court has explained this analysis:

1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court; and
2) the appellate court must further determine that the record establishes that the finding is clearly wrong U(manifestly erroneous).
See Mari v. Hill, 505 So.2d 1120, 1127 (La.1987).
This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s finding. The reviewing court must review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous.
Nevertheless, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. See generally, Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La.1992); Housley v. Cerise, 579 So.2d 973 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).... Thus, where two permis[1199]*1199sible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.

Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880, 882 888 (La.1998).

Comparative fault:

Left-turning and overtaking motorist collisions represent the classic comparative fault scenario. In the case of interaction between left-turning and overtaking motorists, the law imposes duties on both. A vehicle passing on the left is to be given the right of way after it emits an audible signal. La.R.S. 32:73(2). Passing on the left is considered a dangerous maneuver, and a driver of a passing vehicle is held to a high degree of care. Neal v. Highlands Ins. Co., 610 So.2d 177 (La.App. 3 Cir.1992), writ denied, 612 So.2d 100 (1993). The same degree of care is owed by the left-turning vehicle. Id. The left-turning motorist is tasked by La.R.S. 32:104 with the obligation to signal his intention to turn and to refrain from turning until he has ascertained that it is safe to do so.

In the present matter, Frederick failed to fulfill his obligation to properly signal |4his turn. Mrs. Case claims to have blown her horn before attempting to pass Frederick. However, Frederick heard no horn. Deputy Franklin Washington, the investigating officer, did not note Mrs. Case indicating during his investigation that she sounded her horn; further, Washington testified that, had Mrs. Case indicated that she sounded her horn, he probably would have noted that in his accident report. The report contained no such notation. Thus, a permissible interpretation of the testimony the jury heard is that Mrs. Case, too, failed to fulfill her statutory obligation to sound her horn. This would constitute a credibility determination on the jury’s part, as they heard conflicting testimony on this issue.

The accident occurred on a rural road lined with cane fields on both sides. The tractor had its warning lights activated. The brake lights on the tractor were working, according to Frederick, and no witness contradicted this testimony. The tractor was moving at a slow pace on a road with a 35 mile per hour speed limit. According to Frederick, he began slowing well before attempting the turn. Mrs. Case denied seeing any lights on the tractor. We do not know whether the jury considered that because she did not see lights, Mrs. Case was inattentive.

A thorough review of the record presents sufficient evidence the jury could have considered in assessing fault on Mrs. Case. We are precluded from finding manifest error in that assessment.

General damages:

The Cases also complain of the jury’s assessment of general damages.

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48 So. 3d 1196, 10 La.App. 3 Cir. 302, 2010 La. App. LEXIS 1343, 2010 WL 3894121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/case-v-shelter-insurance-co-lactapp-2010.