Fontenot v. Omni Ins. Group

745 So. 2d 716, 99 La.App. 3 Cir. 504, 1999 La. App. LEXIS 2753, 1999 WL 826087
CourtLouisiana Court of Appeal
DecidedOctober 13, 1999
Docket99-504
StatusPublished
Cited by3 cases

This text of 745 So. 2d 716 (Fontenot v. Omni Ins. Group) 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
Fontenot v. Omni Ins. Group, 745 So. 2d 716, 99 La.App. 3 Cir. 504, 1999 La. App. LEXIS 2753, 1999 WL 826087 (La. Ct. App. 1999).

Opinion

745 So.2d 716 (1999)

Chad FONTENOT, Plaintiff-Appellee,
v.
OMNI INSURANCE GROUP, et al., Defendant-Appellant.

No. 99-504.

Court of Appeal of Louisiana, Third Circuit.

October 13, 1999.

*718 Gary J. Ortego, Ville Platte, for Chad Fontenot.

Michael P. Corry, Lafayette, for Omni Ins. Group, et al.

William Allen Repaske, New Iberia, for USA Cas. Ins. Co.

Before DOUCET, C.J., AMY and SULLIVAN, Judges.

AMY, Judge.

The two drivers named as defendants in this personal injury suit were involved in an automobile accident. Immediately following this accident, and before one of the automobiles involved was cleared from the road, the plaintiff, an oncoming driver, ran into the disabled vehicle allegedly causing the injuries of which he now complains. Following a bench trial, both of the defendants were found at fault in causing the subsequent accident. One of the defendant drivers appeals contesting the fault apportioned to him as well as the amount of damages awarded. We affirm.

Factual and Procedural Background

This appeal stems from two automobile accidents occurring on October 13, 1997. The first accident occurred between Defendant, Freddie Common, who was northbound on Highway 29, north of Eunice, Louisiana, and Defendant, Norrissa B. Poullard, who was also northbound. The record reflects that Poullard was traveling behind Common. The testimony of both Common and Poullard indicates that this first accident occurred when Common attempted a left turn onto a private driveway at the time Poullard was attempting to pass the Common vehicle. The accident occurred in the southbound lane. Although Common's vehicle left the roadway, Poullard's vehicle came to rest in the southbound lane.

Immediately following this accident, the plaintiff, Chad Fontenot, was southbound on Highway 29. He testified that he did not see Poullard's disabled vehicle in his lane of travel until it was too late to stop. He stated that he tried to swerve to avoid the vehicle, but that he collided with the car. Following the accident, Fontenot's father-in-law drove him to the hospital where he was examined for injuries.

The petition instituting this matter was filed on June 10, 1998. Fontenot named both Common and Poullard, their automobile liability insurers, and his own uninsured/underinsured motorist insurance provider as defendants. He asserted that the accident was caused by the defendant drivers' negligence and that he was entitled to recover for his property damage, medical treatment, and general damages. Both Poullard and Common asserted the accident resulted, not only from the negligence of the other defendant driver, but also from the plaintiff's negligence.

Following a bench trial, the trial court found in favor of the plaintiff and found him to be free from fault in the accident. Common was assigned sixty-five percent of the fault while Poullard was assigned the remaining thirty-five percent. The judge awarded the plaintiff $772.51 for medical treatment and $7,500.00 in general damages.

The instant matter is an appeal taken by Common. He assigns the following as error:

1. The trial court committed legal error in its apportionment of fault for the subject accident between Mr. Common, Ms. Poullard, and the plaintiff, Chad Fontenot;
2. The trial court's award of general damages to the plaintiff was excessive and constituted legal error.

Discussion

Apportionment of Fault

In his first assignment of error, Common maintains that the trial court *719 erred in assessing any of the fault for the accident to him. He contends that Poullard, as the driver of the passing vehicle, had the duty to be alert to the actions of the vehicle ahead while his duty as the lead vehicle was only to determine that the left turn could be completed safely. Common argues that the evidence supports a finding that he saw Poullard's car approaching from the rear, that he turned his signal on while still at a distance from the driveway, and that he felt Poullard was still at a safe distance when he attempted to turn. Furthermore, he contends that Poullard was speeding at the time of the accident and that she attempted to pass despite having seen his brake lights. Thus, Common contends that the assessment of a majority of the fault to him was in error. Alternatively, Common contends that the plaintiff should have been apportioned some of the fault as he was traveling on a straight portion of the highway. Common apparently argues that the plaintiff was negligent in failing to pay proper attention to the roadway conditions ahead of him.

As explained by a panel of this court in Kilpatrick v. Alliance Casualty Reinsurance Co., 95-17 (La.App. 3 Cir. 7/5/95); 663 So.2d 62, writ denied, 95-2018 (La.11/17/95); 664 So.2d 406, both left-turning motorists and overtaking or passing motorists are required to exercise a high degree of care due to the dangerous nature of the maneuvers. Poullard, as the driver of the overtaking or passing vehicle, owed a duty to ascertain before attempting to pass the preceding vehicle that, from all traffic and roadway conditions, the passing maneuver could be safely completed. Id. citing Palmieri v. Frierson, 288 So.2d 620 (La.1974). See also Boudreaux v. Farmer, 604 So.2d 641 (La.App. 1 Cir.), writs denied, 605 So.2d 1373, 1374 (La.1992).

As the driver of a left-turning vehicle, Common's duty of care included "properly signaling an intention to turn left, and keeping a proper lookout for both oncoming and overtaking traffic in order to ascertain that the left turn can be made with reasonable safety." Courmier v. Travelers Ins. Co., 486 So.2d 243, 247 (La.App. 3 Cir.), writs denied, 489 So.2d 250, 251 (La. 1986). Furthermore, La.R.S. 32:104 provides, in part, as follows:

A. No person shall turn a vehicle ... to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety.
B. Whenever a person intends to make a right or left turn which will take his vehicle from the highway it is then traveling, he shall give a signal of such intention in the manner described hereafter and such signal shall be given continuously during not less than the last one hundred (100) feet traveled by the vehicle before turning.
C. No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear when there is opportunity to give such signal.

In Kilpatrick, 95-17, p. 4-5; 663 So.2d at 66, this statutory duty to signal was explained as follows:

The onerous burden placed upon a left-turning motorist is not discharged by the mere signaling of an intention to turn. The giving of a signal, which fact is disputed in the case sub judice, is immaterial if at the time the driver of the turning vehicle did not have the opportunity to make the turn in safety. Husser v. Bogalusa Coca Cola Bottling Co., 215 So.2d 921 (La.App. 1 Cir.1968).

In the present matter, the trial judge rendered oral reasons for ruling in the apportioning of fault and stated, as follows:

The Court in order to decide who is at fault in the present accident must decide who caused the accident between the *720

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Bluebook (online)
745 So. 2d 716, 99 La.App. 3 Cir. 504, 1999 La. App. LEXIS 2753, 1999 WL 826087, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fontenot-v-omni-ins-group-lactapp-1999.