Circello v. Government Employees Ins. Co.

425 So. 2d 239, 1982 La. App. LEXIS 8746
CourtLouisiana Court of Appeal
DecidedDecember 21, 1982
Docket82 CA 0265
StatusPublished
Cited by8 cases

This text of 425 So. 2d 239 (Circello v. Government Employees Ins. 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
Circello v. Government Employees Ins. Co., 425 So. 2d 239, 1982 La. App. LEXIS 8746 (La. Ct. App. 1982).

Opinion

425 So.2d 239 (1982)

Ronald G. CIRCELLO
v.
GOVERNMENT EMPLOYEES INSURANCE COMPANY, et al.

No. 82 CA 0265.

Court of Appeal of Louisiana, First Circuit.

December 21, 1982.
Writ Denied February 23, 1983.

*240 Paula Cobb, Arthur Cobb, Baton Rouge, for plaintiff-appellant Ronald G. Circello.

Charles W. Wilson, III, Baton Rouge, for defendant, third party plaintiff and third party defendant-appellee Geico and Lafferty.

Brent E. Kinchen, Baton Rouge, for defendant, third party plaintiffs and third party defendants-appellees Mid-American and Burton.

Kenneth E. Barnette, Baton Rouge, for defendant-appellee Prudential.

Dorothy D. Thomas, Boris Navratil, Baton Rouge, for defendant-appellee Casualty Reciprocal.

Daniel R. Atkinson, Baton Rouge, for defendant-appellee Allstate Ins. Co.

Before COVINGTON, LEAR and LANIER, JJ.

LANIER, Judge.

This is a suit for damages in tort arising from a three car automobile accident. A trial by jury resulted in findings that the negligence of the drivers of all three vehicles caused injury to the plaintiff. The plaintiff's damages were fixed at $3,000. Judgment was rendered in the trial court against the insurers of the three drivers in solido for the amount of the jury award. Judgment was also rendered dismissing the plaintiff's claim against his underinsured motorist's carrier and his claim against the excess insurer of one of the drivers. The plaintiff took this devolutive appeal asserting (1) that counsel for one of the defendants made improper comments concerning *241 him which adversely affected the jury, and (2) that the damage award was inadequate. The insurers of two of the drivers answered the appeal asserting that their insureds were not liable for the plaintiff's damages. One of the appealing insurers alleged in the alternative that the damage award was excessive and should be reduced.

I. FACTS

On October 14, 1979, at approximately 5:30 A.M., James T. Jones, Jr. was operating a 1973 Chevrolet automobile owned by his mother, Grace F. Jones, in an easterly direction on the Airline Highway at its intersection with Plank Road in East Baton Rouge Parish, Louisiana. Airline Highway is a four-lane highway running generally in an east-west direction at this point. There were two guest passengers in the Jones vehicle, Candice Matherne,[1] who was in the right front seat, and the plaintiff, Ronald G. Circello, who was in the right rear seat. The primary coverage on the Jones vehicle was carried by Grace F. Jones with Casualty Reciprocal Exchange (Exchange). James T. Jones, Jr. had individual liability coverage with Prudential Property and Casualty Insurance Company (Prudential), which was excess coverage on the Jones vehicle. Circello carried underinsured motorists coverage with Allstate Insurance Company (Allstate).

At the same time and place, Christine P. Burton was operating a 1978 Chevrolet Nova owned by her in an easterly direction on the Airline Highway behind the Jones vehicle. Gary Breaux was a passenger in the Burton vehicle. Mid-American Casualty Company (Mid-American) was the liability insurer of Burton and her vehicle.

Jeffrey W. Lafferty was operating a 1973 Dodge Polara owned by him in an easterly direction on Airline Highway behind the Burton vehicle. There were no passengers in this vehicle. Lafferty and his vehicle were insured by the Government Employees Insurance Company (GEICO).

Jones was driving in the right (outside) lane of the two eastbound lanes of travel and approached a Toyota automobile which appeared to be either stopped or moving very slowly. Jones pulled into the left (passing) lane and commenced passing the Toyota. Burton was in the left (passing) lane behind Jones, and when she observed his vehicle in front of her, she determined that she was unable to slow down sufficiently to avoid a collision and drove her vehicle between the Jones vehicle in the left lane and the Toyota in the right lane. During this maneuver, there was a relatively minor contact between the side of the Burton vehicle and the right rear of the Jones vehicle. Lafferty was following the Burton vehicle in the left lane. When the Burton vehicle veered to the right and proceeded between the Jones vehicle and the Toyota, Lafferty was unable to sufficiently brake his vehicle and there was a severe collision between the front of the Lafferty vehicle and the rear of the Jones vehicle. Burton stopped her vehicle and returned to the scene of the accident. The Toyota automobile left the scene of the accident and its driver was never located.

II. IMPROPER QUESTIONING BY COUNSEL

Circello contends in this appeal that improper questioning by counsel for Allstate prejudiced the jury and resulted in an inadequate damage award. The transcript reveals that the following took place during the trial:

"Q. Mr. Circello, have you ever served in the military?
"A. Yes, sir, I have.
"Q. And it's correct, isn't it, that you were discharged from the military with less than honorable conditions?
"A. No, sir, that is not correct. I have honorable conditions.
"Q. Weren't you discharged with a general discharge?
"A. Yes, sir, I was. General under honorable conditions.
*242 "Q. Isn't it a fact that you went A.W. O.L. and charges were brought against you so you could be discharged so you would not have to serve in Vietnam?
"MR. COBB: I object, Your Honor. This has nothing to do with cross-examination. He has acknowledged this. He's the one that told this lawyer at the deposition, and all it can be is to prejudice the jury against Mr. Circello.
"THE COURT: I sustain the objection. Ladies and gentlemen of the jury, you're ordered by the Court here to disregard the question that was asked by counsel. Do not answer the question."

Counsel for Circello did not object to the first three questions propounded by counsel for Allstate concerning Circello's military record. The failure of Circello's counsel to object to these questions constitutes a waiver of his right to complain of them on appeal. Temple v. Liberty Mutual Ins. Co., 330 So.2d 891 (La.1976); Belaire v. Vanderbrook, 405 So.2d 1143 (La.App. 1st Cir.1981), writs denied 407 So.2d 749 (La. 1981) and 409 So.2d 659 (La.1982).

When counsel for Circello objected to the fourth question propounded by counsel for Allstate concerning Circello's military record, the trial judge sustained the objection, instructed the jury to disregard the question, and instructed the witness not to answer the question. At the conclusion of the trial, the judge instructed the jury to judge the case without regard to any passion, sympathy, or prejudice, and that all parties in the case stood as equals before the court. The actions taken by the trial judge on the objection by counsel for Circello were correct and proper. Temple v. Liberty Mutual Ins. Co., supra; Sanchez v. LeBlanc, 400 So.2d 349 (La.App. 4th Cir. 1981), writ denied 401 So.2d 991 (La.1981).

Even if the actions of the trial judge constituted error that improperly influenced the jury's verdict, nevertheless, this court must undertake an independent evaluation of the facts and adjudicate the controversy before us. Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975).

III. LIABILITY OF JAMES T. JONES, JR. (EXCHANGE)

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Bluebook (online)
425 So. 2d 239, 1982 La. App. LEXIS 8746, Counsel Stack Legal Research, https://law.counselstack.com/opinion/circello-v-government-employees-ins-co-lactapp-1982.