Dore v. Mitsui Sumitomo Ins., USA

117 So. 3d 231, 12 La.App. 5 Cir. 875, 2013 WL 2215990, 2013 La. App. LEXIS 1043
CourtLouisiana Court of Appeal
DecidedMay 22, 2013
DocketNo. 12-875
StatusPublished
Cited by6 cases

This text of 117 So. 3d 231 (Dore v. Mitsui Sumitomo Ins., USA) 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
Dore v. Mitsui Sumitomo Ins., USA, 117 So. 3d 231, 12 La.App. 5 Cir. 875, 2013 WL 2215990, 2013 La. App. LEXIS 1043 (La. Ct. App. 2013).

Opinions

CONERY, Judge.

Iiln this automobile accident case, Plaintiff, Melissa Dore, asserts that her accident with Defendant, Allan Johnson, caused her extensive injuries for which she claimed damages. After trial, the jury found Johnson was one hundred percent at fault for the accident, but also found that Dore was not entitled to any damages for her alleged injuries. The trial court then denied Dore’s motion for judgment notwithstanding the verdict (JNOV) and alternative motion for a new trial. Dore appeals the jury’s verdict and trial court’s denial of her motions. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 8, 2007, Dore was travelling south on Interstate 49 just outside of Opel-ousas, Louisiana, in the left lane. Johnson was travelling south in the right lane. The passenger side of Dore’s vehicle came into contact with the driver’s side of Johnson’s vehicle as Dore passed Johnson. Dore and Johnson gave conflicting testimony about the location of the incident and severity of the impact. Johnson received a citation for improper lane change and paid the citation without contest.

Dore claims Johnson abruptly changed lanes causing extensive damage to the vehicle she was driving. She claims she was hurt in the collision and began medical treatment the day after the accident. Over the course of her treatment, she underwent two surgeries, one for injuries to the disc located at C6-7 in her neck and the other at L5-S1 in her lower back, all of which she related to the accident. Her treating doctors related her injuries and treatment to the accident, assuming her history of how the accident occurred and the severity of the impact was accurate.

[234]*234Johnson claimed that, as he was attempting to begin a lane change from right to left, Dore brushed his vehicle and sped past him at a fairly high rate of speed, | {.causing only minor damages to the rental vehicle he was driving. Though at fault for improper lane change, Johnson claimed Dore was partially at fault and could- not have been injured by this relatively minor impact.

On April 7, 2008, Dore filed suit against, inter alia, Johnson, Ventura Foods, L.L.C. (Ventura), Johnson’s employer, and Mitsui Sumitomo Insurance USA Incorporated (Mitsui), Ventura’s insurance carrier. It was stipulated that Johnson was in the course and scope of his employment with Ventura and that Mitsui had liability insurance coverage for this accident.

A jury trial was held November 2-3, 2011. The jury reached a verdict finding that Johnson was one hundred percent at fault for the accident, but that Dore suffered no damages as a result of the accident and awarded Dore nothing.

Dore filed a motion for JNOV and, alternatively, a motion for a new trial which were heard on May 7, 2012. The trial court thoughtfully considered and denied the motions for extensive oral reasons assigned. Thereafter, on May 17, 2012, Dore died from causes unrelated to this accident. She was survived by her two adult children, Cory Blake Credeur and Cody Scott Credeur. Her children were substituted as the proper parties plaintiff to continue the action.1 Dore timely filed this appeal, presenting two questions for review:

1. Was the jury manifestly erroneous, in awarding no damages to Plaintiff, Melissa Dore, and finding that she suffered no damage, where there were stipulated property damages of $2,049.07,2 medical expenses of $151,032.42, and two spinal surgeries which her surgeons related to the August 8, 2007 accident?
| ;,2. Did the trial Judge commit legal error in failing to grant Plaintiffs Motions for post-trial relief (i.e., Motion for New Trial, alternatively, Motion for JNOV)?

DISCUSSION

Standard of Review

“[A]ppellate jurisdiction of a court of appeal extends to law and facts.” La. Const. art. 5, § 10(B). Our supreme court, in Ryan v. Zurich American Insurance Co., 07-2312, p. 7 (La.7/1/08), 988 So.2d 214, 219, reiterated the standard of review for facts as follows:

The jury’s determination of the amount, if any, of an award of damages ... is a finding of fact. The Civil Code provides that “[i]n the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.” La. C.C. art. 2324.1.

The standard of review of a jury’s findings is well-settled:

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Our supreme court set forth a two-part test for the [235]*235reversal of a factfinder’s determinations: (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 (manifestly erroneous).

Cole v. Allstate Ins. Co., 07-1046, p. 2 (La.App. 3 Cir. 6/05/08), 987 So.2d 310, 312, writ denied, 08-1463 (La.10/31/08), 994 So.2d 535 (citing Earls v. McDowell, 07-17 (La.App. 5 Cir. 5/15/07), 960 So.2d 242).

“Whether an accident caused a person’s injuries is a question of fact which should not be reversed on appeal absent manifest error.” Housley v. Cerise, 579 So.2d 973, 979 (La.1991) (citing Mart v. Hill, 505 So.2d 1120 (La.1987)). As this court stated in Bernard v. Hartford Insurance Co., 09-71, p. 3 (La.App. 3 Cir. 6/3/09), 12 So.3d 1098, 1100-01, writ denied, 09-1524 (La.10/9/09), 18 So.3d 41285 (quoting Sportsman Store of Lake Charles, Inc. v. Sonitrol Security Systems of Calcasieu, Inc., 99-201, p. 6 (La.10/19/1999), 748 So.2d 417, 421):

It is well settled that a court of appeal may not set aside a finding of fact by a trial court or a jury in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Lirette v. State Farm Ins. Co., 563 So.2d 850, 852 (La.1990); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978); Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973). The rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound. Lirette v. State Farm Ins. Co., [563 So.2d] at 853; Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990).

The Bernard court further stated:

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the fact-finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.

Id. at 1102 (quoting Rosell v. ESCO, 549 So.2d 840, 844 (La.1989)).

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117 So. 3d 231, 12 La.App. 5 Cir. 875, 2013 WL 2215990, 2013 La. App. LEXIS 1043, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dore-v-mitsui-sumitomo-ins-usa-lactapp-2013.