Harold v. Bouchat

588 So. 2d 157, 1991 La. App. LEXIS 2725, 1991 WL 205652
CourtLouisiana Court of Appeal
DecidedOctober 15, 1991
DocketNo. 91-CA-0251
StatusPublished
Cited by1 cases

This text of 588 So. 2d 157 (Harold v. Bouchat) 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
Harold v. Bouchat, 588 So. 2d 157, 1991 La. App. LEXIS 2725, 1991 WL 205652 (La. Ct. App. 1991).

Opinion

LOBRANO, Judge.

Renee Kutcher, formally Renee Bouchat (Bouchat), appeals the granting of a new trial by the trial court on its own motion, as well as the court’s quantum and comparative negligence findings after the new trial.

Although six assignments of error are asserted, the dispositive issues for this court’s determination are as follows:

1) Whether the trial court abused its discretion in granting a new trial on its own motion; and
2) Whether the trial court committed manifest error in its factual findings on quantum and comparative negligence.

FACTS:

On May 17, 1986, at the intersection of Magazine Street and Jefferson Avenue in New Orleans, Bouchat’s Volkswagon Rabbit collided with an AMC Spirit owned by Evelina Pipe (Pipe) and driven by Charles Harold (Harold). Bouchat was driving down Magazine Street, proceeding straight through the intersection. Harold was travelling in the opposite direction on Magazine Street, attempting to make a left turn onto Jefferson Avenue. The accident occurred so suddenly and unexpectedly that neither Bouchat nor Harold could recall exactly how the collision occurred.

After colliding, Bouchat’s automobile proceeded through the intersection, veered right and struck a corner newspaper vending machine. Harold’s car was knocked backwards a distance estimated at between 6 and 15 feet, remaining in its lane of travel on Magazine Street.

Harold and Pipe filed a petition for damages against Bouchat on November 20, 1986. On March 25, 1987, Bouchat filed a reeonventional demand against Harold and Pipe, claiming she had suffered a neck injury in the accident. Bouchat’s reconven-tional demand added a claim against her uninsured motorist carrier, Aetna Casualty and Surety Company (Aetna).

Trial was held on October 31, 1989. Sitting as trier of fact, the trial judge heard lengthy testimony from Bouchat, three doc[159]*159tors,1 and Bouchat’s husband. Harold, though subpoenaed for trial, failed to appear. After Bouchat rested her case, Aet-na moved for dismissal on the grounds that Bouchat had failed to prove that Harold2 was uninsured at the time of the accident. Faced with this unexpected move, and recognizing that counsel for Aetna was technically correct, the trial judge decided that “the way to handle it is to let you [Bouchat] brief it on the motion for new trial.” The trial judge made it clear that he considered the issue serious enough to require briefing, and indicated that he would likely grant a new trial. “I don’t like to see injustice done,” said the trial judge at the conclusion of trial.

Rather than file a motion for new trial as the trial judge had suggested, on November 9, 1989 Bouchat submitted a motion to “Reopen for the Production of Additional Evidence” as to the uninsured status of Harold.

On November 21, 1989, the trial judge signed a judgment awarding Bouchat $150,000 in general and $2,957.83 in special damages against Harold. The judgment, however, dismissed the uninsured motorist claim against Aetna with prejudice. On November 28, 1989 Bouchat filed a motion for new trial as to the uninsured status of Harold, and alternatively as to all issues.

On December 1, 1989, the court vacated its November 21, 1989 judgment, and, on its own motion, granted a new trial on the issues of Bouchat’s damages and her comparative negligence. On January 9, 1990, the trial judge assigned reasons for granting a new trial. The court expressed concern with the turn the proceedings had taken following Aetna’s surprise move at the trial’s conclusion, as well as the need for a new trial on the issues of quantum and comparative negligence. The court questioned the reasonableness of its initial $150,000.00 award. In addition Bouchat’s request for a new trial on the uninsured status of Harold was granted.3

The new trial commenced on March 13, 1990. On that date Evelina Pipe, the owner of the car Harold was driving, testified that the vehicle was not insured on the day of the accident. In addition, Aetna introduced into evidence a medical report from Dr. Claude S. Williams wherein he stated that, after examination of Bouchat’s CAT scan and MRI, he could not identify definite disc herniation. He opined that the discs were not necessarily abnormal. Bouchat introduced the report of Dr. April who performed the MRI and found probable small posterior protrusions at C5-6 and C6-7. Following the failure of either party to produce Harold, and at the court’s insistence, he appeared on March 16, 1990 and testified, giving his version of how the accident occurred.4

Judgment was rendered on March 27, 1990. The court found that the collision occurred at “precisely the midline of Magazine Street.” Negligence was assessed 50% to Harold and 50% to Bouchat. Aetna was found liable to Bouchat under the uninsured motorist provisions of her policy because both Pipe and Harold were uninsured at the time of the accident. The court found it “more probable than not” that Bouchat’s injury was the result of a combination of Bouchat’s earlier back problems, the May 17, 1986 accident, and a separate automobile accident which occurred in 1988. As a result, Bouchat was awarded general damages in the amount of $30,000.00, reduced by her 50% negligence.

GRANTING OF NEW TRIAL ON COURT’S OWN MOTION:

Bouchat argues that the trial court erred and abused its discretion in ordering a new trial on its own motion on the issues [160]*160of quantum and comparative negligence. We do not agree.

Under La.C.C.P. Art. 1971, “[a] new trial may be granted ... by the court on its own motion, to all or any of the parties and on all or part of the issues, or for reargument only.” In Lamb v. Lamb, 430 So.2d 51 (La. 1983), the Louisiana Supreme Court stated that, “[w]hen the trial judge is convinced by his examination of the facts that the judgment would result in a miscarriage of justice, a new trial should be ordered. We have recognized that the court has much discretion regarding this determination. However, this court will not hesitate to set aside the ruling of the trial judge in a case of manifest abuse.” Id. at 53. Although Lamb involved review of the trial court’s denial of a motion for new trial, the same standard is applicable to the grant of a new trial.

After review of the transcript and the trial court’s January 9, 1990 reasons, we conclude that the court acted well within its discretion in granting a new trial ex parte. It is clear that the trial judge was confronted with an unexpected move at the conclusion of the initial trial which effectively removed Bouchat’s uninsured motorist carrier, Aetna, from the case. Commenting on Aetna’s motion to dismiss, the trial judge wrote, “[i]n frustration, this Court rendered a judgment against Mr. Harold for $150,000.00 plus special damages and dismissed the claims of the other parties.” The court went on to explain why granting a new trial without retrying quantum and comparative negligence would have resulted in a miscarriage of justice. “The Court is of the opinion that the judgment against Mr. Harold is or would be uncollectible, if not unconscionable. Thus this ease created false expectations in the mind of Ms. Bouc-hat. This case at best is not worth anything close to $150,000 ...

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Related

Harold v. Bouchat
590 So. 2d 593 (Supreme Court of Louisiana, 1992)

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588 So. 2d 157, 1991 La. App. LEXIS 2725, 1991 WL 205652, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harold-v-bouchat-lactapp-1991.