Edmond v. Cherokee Insurance Co.

170 So. 3d 1029, 2014 La.App. 1 Cir. 1509, 2015 La. App. LEXIS 824, 2015 WL 1874816
CourtLouisiana Court of Appeal
DecidedApril 24, 2015
DocketNo. 2014 CA 1509
StatusPublished
Cited by7 cases

This text of 170 So. 3d 1029 (Edmond v. Cherokee 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
Edmond v. Cherokee Insurance Co., 170 So. 3d 1029, 2014 La.App. 1 Cir. 1509, 2015 La. App. LEXIS 824, 2015 WL 1874816 (La. Ct. App. 2015).

Opinion

McClendon, j.

li-The defendants appeal a judgment, which was rendered in accordance with a jury verdict, to challenge the percentage of fault allocated to a plaintiff involved in motor vehicle accident. Plaintiff also appeals, challenging the trial court’s denial of his motion for judgment notwithstanding the verdict and/or additur on the issue of damages. For the following reasons, we affirm.

[1034]*1034FACTS AND PROCEDURAL HISTORY

This case involves a motor vehicle accident that occurred on March 10, 2010 at approximately 5:30 a.m., while still dark, on Lobdell Highway. Lobdell Highway is a four-lane divided highway, in Port Allen, Louisiana. The portion of Lobdell at issue is straight and level, without any hills or curves. Leroy Edmond, who was driving a GMC Sierra pickup truck, was traveling in a northerly direction on Lobdell Highway when he struck a flat bed trailer that was being pulled by an eighteen wheeler driven by Sherbaston Wilson. The cargo on the flatbed trailer was completely covered by a black tarp. Mr. Wilson was leaving a truck stop and attempting to make a left hand turn across the two northbound lanes of Lobdell. At the time of the impact, Mr. Wilson’s trailer had not cleared the inner northbound lane of travel.

Subsequently, Mr. Edmond filed suit against Mr. Wilson, his employer, Jowin Express, Inc., and their insurer, Cherokee Insurance Company, (collectively “defendants”).1 Mr. Edmond alleged that Mr. Wilson was negligent in, among other things, “fail[ing] to yield to oncoming traffic while exiting from a private driveway.” Mr. Edmond also alleged that he sustained permanent injuries in the accident.

The matter proceeded to a jury trial. Following trial, the jury returned a verdict, assessing 95% fault for the accident to the defendants and the remaining 5% fault to Mr. Edmond. The jury also rendered the following damage award in favor of Mr. Edmond:

JsA. Past Medical Expenses $35,000
B. Future Medical Expenses $150,000
C. Past lost Wages ■ $450,000
D. Future lost Wages $400,000
E. Past pain, suffering, mental anguish, disability, scarring and disfigurement $75,000
F. Future pain, suffering, mental anguish, disability, scan’ing and disfigurement $110,000
Loss of Enjoyment of Life $15,000 P
Property Damage $20,000. K

The trial court signed a judgment in accordance with the jury verdict on October 18, 2013.

Mr. Edmond then filed a motion for judgment notwithstanding the verdict (JNOV) and/or additur, which was subsequently denied by the trial court on January 7, 2014. Following the denial of the JNOV and/or additur, the defendants filed a petition for suspensive appeal on January 31, 2014. In their appeal, defendants assign the following as error:

1. The finding that Sherbaston Wilson was 95% at fault was manifestly erroneous, because the evidence showed that Plaintiff-Appellee, Leroy “Mike” Edmond had the last clear chance to avoid the accident.
[1035]*10352. It was manifest error for the jury to consider Plaintiff-Appellee’s economist’s range for future lost wages because that expert admitted on the stand that the bases for his calculations were incorrect. As a result, the range offered to the jury by Plaintiff-Appellee for this element of damages created inaccurate parameters that the jury should not have considered.

Mr. Edmond also filed an appeal on March 10, 2014. In his appeal, he assigns the following as error:2

The trial court erred in failing to appropriately apply La. C.C.P. Art[.] 1811 and/or La. C.C.P. 1814, in denying plaintiff-appellant’s Motion for JNOV and/or Additur for the awards for: future los[t] wages; past pain, suffering, mental anguish, disability, scarring and disfigurement; and, future pain, suffering, mental anguish, disability, scarring and disfigurement.

Defendants answered Mr. Edmond’s appeal, seeking review of a judgment rendered by the trial court on April 14, 2014, relative to taxing of costs.

J^DISCUSSION

Allocation of Fault

In their first assignment of error, the defendants contend that the jury committed manifest error in assigning Mr. Edmond only five percent of the fault because Mr. Edmond had plenty of time to avoid the accident.

At trial, Mr. Edmond testified that on the morning of the accident, he was driving home from work. Prior to the accident, Mr. Edmond had stopped at a red light on Lobdell Highway about 1500 feet south of the truck stop. Mr. Edmond testified that he was the middle vehicle in a line of three vehicles in the right lane that had stopped at the red light. After the light turned green and the line of traffic approached the truck stop, Mr. Edmond testified that the driver of the vehicle in front of him tapped his brakes, so Mr. Edmond moved over into the left lane. Mr. Edmond indicated that he was unaware that the 18 wheeler’s trailer was protruding into the left lane when he changed lanes. Mr. Edmond believed the lane was empty due, in part, to seeing headlights from oncoming traffic traveling southbound on Lobdell Highway. Mr. Edmond testified that after he moved over into the left lane he could see reflectors, but it was dark of night and the top of the trailer was black. Mr. Edmond also indicated that when he saw the trailer, he hit his brakes but he could not avoid hitting the left rear corner of the flatbed trailer.

On cross-examination, Mr. Edmond acknowledged that he had eye problems, but testified that it had no impact on his ability to see the trailer. Specifically, Mr. Edmond had cataracts and .had been diagnosed with Stargardt’s Disease, which decreases peripheral vision and decreases vision in poor lighting conditions. Mr. Edmond had previously complained to an eye specialist of problems .with night driving and light adjusting. A few months prior to the accident, a progress note in the medical records of Dr. Lionel Smith, who treated plaintiff for his eye problems, indicates that plaintiff was “thinking about disability.” However, Mr. Edmond denied he was ever considering retiring.

[1036]*1036|sMr. Wilson testified that when he was leaving the- truck stop, he looked to his left and to his right and believed he had enough time to make a left turn to proceed south on Lobdell Highway. Mr. Wilson also testified that he never stopped after he began his initial movement across the northbound lanes, but he could not speed up his turn because of the vehicles traveling in the southbound lanes of travel.

Mr. Wilson noted that he had been to this particular truck stop on many occasions. Mr. Wilson also admitted that there was an alternate route to exit the truck stop where he could enter Lobdell Highway at a traffic light, thereby avoiding crossing over two lanes of oncoming traffic, but that it is quicker to exit out of the truck stop’s front entrance. Mr. Wilson acknowledged that he had used the alternate route on prior occasions.3

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Bluebook (online)
170 So. 3d 1029, 2014 La.App. 1 Cir. 1509, 2015 La. App. LEXIS 824, 2015 WL 1874816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edmond-v-cherokee-insurance-co-lactapp-2015.