Elfers v. AIG National Insurance

80 So. 3d 585, 2011 La.App. 4 Cir. 0596, 2011 La. App. LEXIS 1390, 2011 WL 5561652
CourtLouisiana Court of Appeal
DecidedNovember 16, 2011
DocketNo. 2011-CA-0596
StatusPublished
Cited by3 cases

This text of 80 So. 3d 585 (Elfers v. AIG National Insurance) 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
Elfers v. AIG National Insurance, 80 So. 3d 585, 2011 La.App. 4 Cir. 0596, 2011 La. App. LEXIS 1390, 2011 WL 5561652 (La. Ct. App. 2011).

Opinion

PAUL A. BONIN, Judge.

hThe trial court’s judgment, rendered in conformity with the jury’s verdict, apportioned fault in this motor vehicle accident 20% to Tracy Elfers, the plaintiff, and 80% to Oscar Ferguson, a defendant.1 Ms. El-fers timely filed a motion for judgment notwithstanding the verdict, or JNOV, in which she sought a modification of the judgment allocating no comparative fault to her and all fault to Mr. Ferguson. Following the trial court’s denial of her motion, she timely filed this devolutive appeal.2

Because we find after a de novo review of the entire trial record that the facts and inferences do not point so strongly and overwhelmingly in Ms. Elfers’ favor on this point that reasonable persons could not reach a different conclusion, we conclude that the judgment denying her motion for JNOV is correct and we affirm.

Our analysis follows.

I.

Mr. Ferguson was operating an eighteen-wheel tractor and flat-bed trailer rig [587]*587on an elevated portion of Interstate 55 near Manchac, Louisiana. He was traveling in the right lane of the two-lane highway. Ms. Elfers was driving her automobile in the left lane at a distance behind Mr. Ferguson’s tractor-trailer. It was daylight on a clear day.

Mr. Ferguson explained that he was travelling about 57 mph and was approaching a vehicle ahead of him that was travel-ling at a slower rate of speed. According to his testimony, he looked in his rearview mirror, observed Ms. Elfers’ vehicle trav-elling at a speed which he estimated to be 55 mph, activated his left turn signal, and began changing from the right lane to the left lane. Before the maneuver was completed or, as he testified, as he was getting “straightened” in the left lane, his rig and Ms. Elfers’ vehicle collided, forcing her vehicle to also collide with a concrete highway barrier or wall. Photographs of Ms. Elfers’ vehicle at the scene and shortly afterward show damage on the right side, or passenger side, of her car as a result of the directly colliding with the tractor-trailer. Mr. Ferguson admitted to receiving a citation for a traffic violation and of paying the fine.

Ms. Elfers, who did not seek medical treatment that day, explained that she had become unconscious as a result of the collision and many details of the accident are lost to her memory. She did, however, specifically recall as she was passing the tractor-trailer that she had looked at the tractor’s rearview mirror and observed that Mr. Ferguson was not looking in his mirror, that the tractor-trailer’s | ¡¡turning signal was not activated, and that she was about half-way past the back of the tractor-trailer when it collided with her.

Ms. Elfers did not provide the jury with an estimate of her speed at the time of the collision. Mr. Ferguson’s counsel questioned her whether she told the investigating trooper that she had been travelling at 80 mph. She first testified that she may have told that to the trooper, but she was so hysterical following the accident that she does not know what she may have said. When pressed whether she denied making the statement, she reiterated that she did not recall.

The trooper did not testify. There were no other witnesses on the issue of causation or fault.

II

In this Part we address the various legal standards which control our decision.

In order to grant a JNOV motion under La. C.C.P. art. 1811, a trial court applies a rigorous standard based upon the principle that when there is a jury, the jury is the trier of fact. See Scott v. Hospital Serv. Dist. No. 1, 496 So.2d 270, 273 (La.1986). From this principle it follows that only “when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict” is a JNOV warranted. Joseph v. Broussard Rice Mill, Inc., 02-0628, p. 4 (La.10/30/00), 772 So.2d 94, 99. It is not sufficient that there be a preponderance of evidence in favor of the mover. Id. The more rigorous standard is that “reasonable persons |4could not reach different conclusions ...” Id. In ruling on the JNOV motion, a trial court may not weigh or evaluate the credibility of witnesses. See Anderson v. New Orleans Pub. Serv., Inc., 583 So.2d 829, 832 (La.1991). And a trial court must resolve all reasonable inferences or factual questions in favor of the non-moving party. Id.

We, as an appellate court, review the granting or denying of a JNOV de novo. We use the same criteria, without [588]*588any deference to the trial court’s decision, to ask ourselves the question, “do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict?” Joseph, 02-0628, p. 5, 772 So.2d at 99. If our answer is in the affirmative, then we will conclude that a JNOV should have been rendered; if negative, then the motion should have been denied. Id.

The verdict at issue is the jury’s finding that Ms. Elfers’ damages should be proportionately reduced by 20% on account of her own partial fault. See La. Civil Code Art. 2328 A, and La. C.C.P. Art. 1812 C(3). Ordinarily, we would review a fact-finder’s apportionment of fault under the manifest error-clearly wrong standard. See Clement v. Frey, 95-1119, p. 7 (La.1/16/96), 666 So.2d 607, 610 (holding that the finding of percentages of fault pursuant to the comparative fault article is a factual determination).3 But Ms. Elfers seeks only our de novo review under the more rigorous standard of decision for denial of a JNOV. Cf., e.g. Burns v. CLK Investments V, L.L.C., 10-0277, p. 21 (La.App. 4 Cir. 9/1/10), 45 So.3d 1152, 1165 (a case in which we wrote, “Because we have already concluded that the jury’s findings of fact were not clearly wrong and were reasonable, we disagree with the Burnses that the trial court should have rendered a judgment notwithstanding the verdict.”). Consequently, because we limit granting a JNOV “to cases where the jury’s verdict is absolutely unsupported by any competent evidence,” we turn next to consider whether any competent evidence supports the jury’s verdict. Cattles v. Allstate Inc. Co., 09-1576, pp. 6-7 (La.App. 4 Cir. 8/4/10), 45 So.3d 627, 631.

III

Before determining what evidence the jury had before it in apportioning any fault to Ms. Elfers, we explain in this Part why wé find that there was no evidence before the jury that Ms. Elfers was traveling at an excessive rate of speed. There is no evidence that Ms. Elfers made any such statement about which she was questioned regarding speeding on the interstate at 80 mph.

If Ms. Elfers made such a statement, it would not be inadmissible hearsay because it would be a “statement offered against a party and is ... [her] own statement ...” La. C.Evid. Art. 801(2)(a). But Ms. Elfers did not unqualifiedly admit to making the statement. Rather, Ms. Elfers testified to a lack of memory of the subject matter of her statement. See, e.g., La. C.Evid. Art. 804 A(3).

Because Ms. Elfers did not admit to making the statement and Mr.

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80 So. 3d 585, 2011 La.App. 4 Cir. 0596, 2011 La. App. LEXIS 1390, 2011 WL 5561652, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elfers-v-aig-national-insurance-lactapp-2011.