Dugas v. Derouen

824 So. 2d 475, 2002 WL 1435919
CourtLouisiana Court of Appeal
DecidedJuly 3, 2002
Docket01-1397
StatusPublished
Cited by9 cases

This text of 824 So. 2d 475 (Dugas v. Derouen) 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
Dugas v. Derouen, 824 So. 2d 475, 2002 WL 1435919 (La. Ct. App. 2002).

Opinion

824 So.2d 475 (2002)

Dorothy DUGAS
v.
Lawrence T. DEROUEN, J.P. Thibodeaux, Inc. and American Eagle Ins. Co.

No. 01-1397.

Court of Appeal of Louisiana, Third Circuit.

July 3, 2002.

*477 John E. McElligott, Jr., David A. Young, Davidson, Meaux, Sonnier & McElligott, Lafayette, LA, for Defendants/Appellants, Lawrence T. Derouen, J.P. Thibodeaux, Inc., American Eagle Ins. Co.

James Michael Stefanski, Edwards, Stefanski & Zaunbrecher, L.L.P., Crowley, LA, for Plaintiff/Appellee, Dorothy Dugas.

Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.

PETERS, J.

The plaintiff, Dorothy Dugas, brought this suit to recover damages for the personal injuries she sustained in an automobile accident wherein the vehicle she was driving was struck by a vehicle driven by Lawrence Derouen. In her suit, she named as defendants Mr. Derouen; J.P. Thibodeaux, Inc., Mr. Derouen's employer; and American Eagle Insurance Company, the liability insurance carrier of the vehicle driven by Mr. Derouen. Prior to trial, American Eagle Insurance Company became insolvent and Louisiana Insurance Guaranty Association (LIGA) replaced it as a party defendant. After a bench trial, the trial court signed a judgment setting Ms. Dugas' damages at $90,095.31 ($70,000.00 in general damages and $20,095.31 in past medical expenses), found that Mr. Derouen was fifty percent at fault in causing the accident, and assessed the other fifty percent of fault to two bicycle riders involved in the accident. The trial court further ordered that $10,000.00 previously paid Ms. Dugas by her uninsured/underinsured motorist insurance carrier, Farm Bureau Insurance Company (Farm Bureau), be deducted from the general damage award before application of the percentages of fault assigned to Mr. Derouen and the bicycle riders, and that $2,000.00 previously paid Ms. Dugas by Farm Bureau under its medical payment portion of its insurance policy be deducted from the award for medical expenses before application of the percentages of fault assigned to Mr. Derouen and the bicycle riders. Mr. Derouen, J.P. Thibodeaux, Inc., and LIGA appealed, asserting three assignments of error, and Ms.Dugas answered the appeal, asserting two additional assignments of error.

The accident giving rise to this litigation occurred on May 29, 1996, at approximately 3:00 p.m. on Louisiana Highway 675 in Iberia Parish, Louisiana. As Ms. Dugas traveled along the highway, she encountered two children riding on a bicycle, weaving into her lane of traffic, and proceeding in the opposite direction of her vehicle. Fearful that the children would swerve into her path or fall from the bicycle into her lane of traffic, Ms. Dugas forcefully applied her brakes. Mr. Derouen's vehicle, which was directly behind Ms. Dugas' vehicle when she applied her brakes, struck the rear of her vehicle. J.P. Thibodeaux, Inc., Mr. Derouen's employer, owned the vehicle driven by Mr. Derouen, and Mr. Derouen was within the course and scope of his employment when the accident occurred.

In appealing the judgment rendered against them, Mr. Derouen, J.P. Thibodeaux, Inc., and LIGA assert the following assignments of error:

1. The trial court committed manifest error and/or erred in law when it apportioned fifty percent (50%) of the liability for the accident to [Mr. Derouen].
2. The trial court committed manifest error and/or error of law when it subtracted the uninsured motorist credit from the gross general damage award rather than subtracted the uninsured motorist credit from *478 the net general damage award apportioned to [them].
3. Considering the facts and circumstances surrounding this case, the trial court erred when it did not apply the sudden emergency doctrine to Mr. Derouen's actions.

In her answer to the appeal, Ms. Dugas asserted the following assignments of error:

1. The trial court committed reversible error when it assessed 50% of the fault to children on a bicycle who were traveling from school and who were seen by [Mr.] Derouen, in lieu of assessing 100% of fault to [Mr.] Derouen, who rear-ended [Ms.] Dugas, who braked for the children to avoid an accident.
2. The trial court committed manifest error when it awarded only $70,000.00 for pain and suffering, and nothing for lost wages or future medical treatment.

OPINION

Issue of Fault

Because the defendants' first and third assignments of error and Ms. Dugas' first assignment of error all address the issue of fault, we will consider them together. The trial court rendered written reasons for judgment in reaching its decision on liability and fault. In doing so, it stated the following:

Testimony presented at trial established the following. On May 29, 1996 Dorothy Dugas was traveling on La. 675 in New Iberia. Immediately following her was defendant Lawrence Derouen. Dugas observed two boys on bikes riding on the right shoulder of the road; she saw them swerve and was afraid they were going to come onto the road. She slammed on her brakes. Derouen immediately applied his brakes but the road was wet and he couldn't control his car; he slid into the back of Dugas' vehicle. Billy Williams, an eyewitness to the accident[,] stated that he observed the two boys riding one bike—one boy was pedaling while the other was a passenger. Williams noted that they were riding against traffic and going on and off the pavement. He also observed both cars applying their brakes and both cars sliding.
Louisiana law prohibits a bicycle rider from riding against traffic on the shoulder of the road and prohibits more than one person on a bicycle at a time. R.S. 32:195 and 32:197. The bicycle riders were in clear violation of these statutes. They were riding against traffic and riding two persons on a one passenger bike. The following motorist, Lawrence Derouen, has the burden of proving that he was not at fault. No clear testimony was given regarding how far behind Dugas' vehicle he was traveling. The testimony did not establish how far the cars slid before they stopped and whether, if Derouen had not been following closely, he would have been able to avoid the collision despite the wet road.

After reaching these factual conclusions, the trial court assessed the fault in causing the accident equally between the bicycle riders and Mr. Derouen. Both sides dispute this assessment of fault.

In order to determine whether liability exists, a duty-risk analysis is used. Syrie v. Schilhab, 96-1027 (La.5/20/97), 693 So.2d 1173. Under this analysis, the plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the defendant breached the duty, and the risk of harm was within the scope of protection afforded by *479 the duty breached. Id. In comparing the fault of the parties,

various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought.

Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967, 974 (La.1985).

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Bluebook (online)
824 So. 2d 475, 2002 WL 1435919, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dugas-v-derouen-lactapp-2002.