Hebert v. Hartford Ins. Co. of the Midwest

649 So. 2d 631, 1994 WL 597673
CourtLouisiana Court of Appeal
DecidedNovember 2, 1994
Docket94-316
StatusPublished
Cited by7 cases

This text of 649 So. 2d 631 (Hebert v. Hartford Ins. Co. of the Midwest) 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
Hebert v. Hartford Ins. Co. of the Midwest, 649 So. 2d 631, 1994 WL 597673 (La. Ct. App. 1994).

Opinion

649 So.2d 631 (1994)

Dianna and Donald HEBERT, Plaintiffs/Appellants,
v.
HARTFORD INSURANCE COMPANY OF THE MIDWEST, et al., Defendants/Appellees/Appellants.

No. 94-316.

Court of Appeal of Louisiana, Third Circuit.

November 2, 1994.

*632 Richard Charles Broussard, Lafayette, for Dianna Hebert et vir.

*633 Katherine Marie Loos, Lafayette, for Hartford Ins. Co., et al.

Edward O. Taulbee IV, Lafayette, for La. Farm Bureau Cas. Ins. Co.

L. Lane Roy, Lafayette, for Allstate Ins. Co.

Leslie J. Schiff, Opelousas, for Domengeaux & Wright.

Before DOUCET and PETERS, JJ., and BERTRAND,[*] J. Pro Tem.

LUCIEN C. BERTRAND, Jr., Judge Pro Tem.

Dianna and Donald Hebert filed suit to recover for personal injuries sustained in two separate accidents. On April 22, 1991, while Dianna was driving with Donald as a passenger, their Ford Tempo was rear ended on Johnston Street in Lafayette by a Ford Aerostar van. The van was owned by Raymond Breaux but was being driven by his major son, Marvin Breaux. On July 13, 1991, the Heberts were also injured in a boating accident near Biloxi, Mississippi, when a pleasure craft owned and operated by their family friend, Ernesto Jorajuria, struck a sandbar in the Tchoutacabouffa River.

The Heberts named as defendants Raymond Breaux and his insurer, Hartford Insurance Company of the Midwest, whose policy covered the Aerostar van; Marvin Breaux and his insurer, Louisiana Farm Bureau Casualty Insurance Company which had issued two separate policies covering two vehicles owned by the younger Breaux; and Ernesto Jorajuria and his watercraft liability insurer, Allstate Insurance Company.

The trial court denied Allstate's exception of improper cumulation of actions, and the trial of both accidents was presented before a single jury. After finding that both Marvin Breaux and Jorajuria were negligent, the jury awarded damages for each accident as follows:

AUTOMOBILE ACCIDENT:

       General Damages (Dianna Hebert)      $35,000
       Special Damages (Dianna Hebert)       12,500
       Loss of Consortium (Donald Hebert)     5,000
BOATING ACCIDENT:
       General Damages (Dianna Hebert)      $27,500
       Special Damages (Dianna Hebert)       15,000

Mrs. Hebert released Allstate upon payment of the judgment for the boating accident and perfected this appeal against Hartford and Farm Bureau. She contends that the trial court erred in permitting the jury to know that she pleaded guilty to two federal crimes in 1989 and in failing to instruct the jury to ignore certain comments made by defense lawyers in their opening statements and closing arguments. These errors, she argues, tainted the jury verdict and resulted in an unreasonably low damage award for the automobile accident. Farm Bureau answered the appeal, urging error in the determination that one of its policies issued to Marvin Breaux provided primary coverage for the Aerostar van on a pro rata basis with the Hartford policy.

EVIDENCE OF FELONY CONVICTIONS

In 1989, Dianna Hebert pleaded guilty to two federal crimes entitled "Conspiracy to Commit Offense or to Defraud United States" and "Theft, Embezzlement or Misapplication by Bank Officer or Employee." 18 U.S.C. §§ 371 and 656. She argues that the trial court erred in permitting the defendants to introduce any evidence of these crimes for impeachment purposes because their prejudicial effect far outweighed any probative value in these proceedings. She also contends that any reference to these crimes was misleading to the jury because she pleaded guilty only to "misapplication of bank funds" and not theft or embezzlement.

La.C.E. art. 609 provides in part:

A. General civil rule. For the purpose of attacking the credibility of a witness in civil cases, no evidence of the details of the crime of which he was convicted is admissible. However, evidence of the *634 name of the crime of which he was convicted and the date of conviction is admissible if the crime:
(1) Was punishable by death or imprisonment in excess of six months under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party; or
(2) Involved dishonesty or false statement, regardless of the punishment.

The trial court did not err in denying Mrs. Hebert's motion in limine to exclude any reference to the guilty pleas. Crimes of "conspiracy" and "misapplication" clearly involve dishonesty or false statement, and under article 609(A)(2) evidence of a conviction of such crimes is admissible without requiring the court to weigh its prejudicial effect. See also comment (b) to article 609, which states in part, "Further, Article 609(A)(2) reflects a legislative determination that as to such matters the balance is in favor of admissibility."

Mrs. Hebert next argues that the trial court erred in failing to admonish the jury to disregard certain comments made by the defense attorneys in their opening statements and closing arguments. In his opening statement, counsel for Allstate suggested that the criminal pleas involved misapplication of bank funds "to the tune of $530,000," and in his closing argument, counsel for Farm Bureau stated, "through the ages, employees have stolen from employers."

Plaintiffs' counsel did not immediately object to the first remark but requested an admonition at a bench conference held at the conclusion of opening statements. This request sparked a spirited discussion, and the record is unclear as to whether the trial court ruled on this request. After the second remark, plaintiffs' counsel objected and a bench conference off the record was held. Thereafter, defense counsel continued his argument, referring only to the crime of "misapplication." The record does not reflect that an admonition was requested at that time.

We agree with the plaintiff that both remarks were improper because they were not supported by the evidence and referred to facts that were inadmissible under La.C.E. art. 609(A). However, we cannot agree that these statements alone resulted in a tainted jury verdict. Instructions given by the judge, the arguments of plaintiffs' counsel and the evidence in the record all served to lessen whatever prejudicial impact the statements may have had. See Hebert v. Domingue, 473 So.2d 120 (La.App. 3rd Cir.), writ denied, 477 So.2d 708 (La.1985). The trial judge instructed the jury that statements of the attorneys were not evidence. In his closing argument, plaintiffs' counsel reminded the jury that there was no evidence of theft in the case. Mrs. Hebert testified that she pleaded guilty only to misapplication and conspiracy, not theft or embezzlement, and the jury was informed that Mrs. Hebert received a first-offender pardon. We also note that the issue of whether to admit any evidence of the two guilty pleas was bitterly contested at trial, with all counsel reaching the heights of zealous advocacy. We find no error in the trial court's control of this situation.

CAUSATION AND DAMAGES

Mrs. Hebert next argues that the jury erred in awarding only $12,500 in special damages and $35,000 in general damages for the automobile accident.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

DiMaggio v. Williams
900 So. 2d 1014 (Louisiana Court of Appeal, 2005)
Vaughn v. Progressive SEC. Ins. Co.
896 So. 2d 1207 (Louisiana Court of Appeal, 2005)
Gedward v. Sonnier
713 So. 2d 770 (Louisiana Court of Appeal, 1998)
Armand v. Rhodes
685 So. 2d 546 (Louisiana Court of Appeal, 1996)
Holland v. Golden Rule Ins. Co.
688 So. 2d 1186 (Louisiana Court of Appeal, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
649 So. 2d 631, 1994 WL 597673, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hebert-v-hartford-ins-co-of-the-midwest-lactapp-1994.