Janet Jabbia v. Sawyer Southern, Southern Farm Bureau Casualty Insurance Company, Mallory Bonnett, & State Farm Mutual Automobile Insurance Company

• Court: Louisiana Court of Appeal
• Decided: August 28, 2024
• Docket: 55,823-CA
• Status: Published

Opinion

Judgment rendered August 28, 2024. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.

No. 55,823-CA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

JANET JABBIA Plaintiff-Appellant

versus

SAWYER SOUTHERN, Defendants-Appellees SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, MALLORY BONNETT, & STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 2020-3141

Honorable Alvin R. Sharp, Judge

BRUSCATO LAW FIRM Counsel for Appellant By: John F. Bruscato James Edward Patton, II

COTTON, BOLTON, HOYCHICK Counsel for Appellees, & DOUGHTY, LLP Sawyer Southern and By: John B. Hoychick Southern Farm Bureau Casualty Ins. Co.

Before COX, MARCOTTE, and ELLENDER, JJ. ELLENDER, J.

Janet Jabbia appeals a bench trial judgment that rejected her claim for

personal injury and property damage arising from a three-vehicle, rear-end

chain collision in which she was the lead driver and Sawyer Southern was

the middle driver. The district court found Southern not at fault. We affirm.

FACTUAL BACKGROUND

On the afternoon of January 13, 2020, Jabbia was driving her 2014

Chevy Malibu, coming home from her job at the Ouachita Parish School

Board and heading east on DeSiard Street, near the airport in Monroe. It had

been raining and the pavement was wet. Driving in the left lane, she stopped

to wait behind a car that was turning left. Glancing in her rearview mirror

she noticed a Chevy Silverado Z71 gaining on her, coming fast. Afraid it

would not be able to stop, she gripped the steering wheel, “smashed” her

brake, and closed her eyes tight. She was then struck from behind, in an

impact that she described as hard but not severe.

Sawyer Southern was driving the 2013 Chevy Silverado Z71. He

recalled there was another truck between him and the Malibu, but it scooted

into the right lane and, when it was gone, he could see the Malibu’s brake

lights so he started slowing down. Glancing in his rearview mirror he saw a

third car, a Chevy Cruze, gaining on him, coming very fast. Afraid it would

not be able to stop, he lifted his foot from the brake thinking this would

lessen the impact when the Cruze hit him. He was then struck from behind;

the impact knocked him into the rear of the Malibu. Mallory Bonnett was driving the 2018 Chevy Cruze. She testified

that, driving east on DeSiard, she looked down from the road to pick up a

cup that had gotten stuck in her cupholder; when she looked up again, she

was about to ram into the rear of the Chevy Silverado. Unable to stop in

time, she rear-ended the Silverado, totaling her Cruze. Fortunately, nobody

was seriously injured.

La. State Trooper Nathaniel Dean came to the scene and shot a 30-

minute bodycam video with the three drivers. Bonnett did not know if she

struck the Silverado first, or the Silverado struck the Malibu first, but said

she did not see Southern do anything wrong. She admitted she had taken her

eyes off the road and, when she looked back up, it was too late to stop.

Southern said he was coming to a stop behind the Malibu, but he then saw

the Cruze coming up fast behind him, and he eased off his brakes in an effort

to lessen the impact when he was struck. Jabbia told Trooper Dean that

Southern had slowed down but the Cruze was coming too fast and struck

him from behind, and this was why he rear-ended her; she thought Southern

was a victim, just like she was.

TRIAL TESTIMONY

Jabbia filed this suit against Southern and his insurer, Southern Farm

Bureau (“SFB”), and against Bonnett and her insurer, State Farm. Some

time later, she settled with Bonnett and State Farm, reserving all rights

against Southern and SFB. The matter came to a bench trial in April 2023.

Trooper Dean, reviewing his crash report and the bodycam video,

agreed that nobody said Southern’s Silverado was completely stopped before

the impact occurred. On cross-examination, he agreed that if Southern had

been “hard on his brakes,” he possibly would not have slid as far and, 2 possibly, not hit Jabbia. However, based on his observations of the vehicles

and what the drivers told him, he considered Bonnett 100% at fault.

Jabbia testified that, while waiting behind a left-turning vehicle, she

saw both the Silverado (which she called “gigantic” and “jacked-up”) and

the Cruze, both speeding. She testified she closed her eyes before impact

and Southern told her at the scene that he “couldn’t or didn’t” apply his

brakes. She admitted stating in deposition that she thought Southern hit her

first (before he was struck by Bonnett), but conceded this was contradicted

by her comments on the bodycam. She also admitted that, on the video, the

Silverado looked just like a “regular truck.”

Southern testified that as soon as he saw the Malibu’s taillights, he

started slowing, but when he saw the Cruze coming up fast behind him, he

“let off [his] brakes” in an effort to decrease her impact. He called this a

“split-second decision.” He agreed he never came to a full stop, but denied

Jabbia’s assertion that he never used his brakes. He also admitted stating in

deposition that had he not let off the brakes, he would not have struck the

Malibu, but clarified this was strictly in response to the Cruze zooming up

behind him. He maintained that if his Silverado had not been struck and

pushed by Bonnett’s Cruze, he would not have hit Jabbia’s Malibu.

Bonnett, called as a witness by Southern and SFB, testified the truck

did nothing wrong and did not appear to be speeding. She thought the truck

was “coming to a stop” when she hit it. She also testified that the trooper

gave her a citation, which she did not contest.

ACTION OF THE DISTRICT COURT

In written reasons, the court found that Southern was “pushed into”

the plaintiff, and the fact that he took his foot off the brake “is of no moment 3 in this case.” The court found Bonnett 100% at fault in the accident, and

ultimately rendered judgment dismissing Jabbia’s claim against Southern

and SFB. Jabbia appealed, raising two assignments of error.

DISCUSSION

As a preliminary matter, Jabbia argues that she is entitled to de novo

review because the court failed to apply La. R.S. 32:81 (A) and thus

committed a legal error. In support, she cites Evans v. Lungrin, 97-0541

(La. 2/6/98), 708 So. 2d 731. We do not agree. De novo review is available

only when “a trial court legal error interdicts the fact-finding process,” id. at

6, 708 So. 2d at 736, and not even in every such case, Hicks v. USAA Gen’l

Indem. Co., 21-00840 (La. 3/25/22), 339 So. 3d 1106. The finding of

causation and fault is a uniquely factual matter and subject to manifest error

review. Hayes Fund for First United Methodist Church of Welsh v. Kerr-

McGee Rocky Mtn. LLC, 14-2592 (La. 12/8/15), 193 So. 3d 1110; Hall v.

Bennett, 54,995 (La. App. 2 Cir. 4/5/23), 361 So. 3d 1090. Under this

standard, reversal is warranted only if the appellate court finds that a

reasonable factual basis does not exist for the trial court’s finding and the

record establishes that the finding is clearly wrong or manifestly erroneous.

Ryan v. Zurich Amer. Ins. Co., 07-2312 (La. 7/1/08), 988 So. 2d 214. On

thorough review, we find nothing in this record that prevented the trial court

from receiving the relevant evidence, analyzing it, and assessing the

competing claims. The request for de novo review lacks merit.

By her first assignment of error, Jabbia urges the court erred as a

matter of law by ignoring Southern’s statutory duty to avoid colliding with

her, under La. R.S. 32:81 (A), and instead focusing on Southern’s perceived

duty to minimize the impact of Bonnett’s car on his own truck. By her 4 second assignment, she urges the court’s findings were manifestly erroneous

and an abuse of discretion.

She argues that, under the statute, a following driver must maintain a

reasonable and prudent distance from the preceding vehicle, having due

regard for speed of the vehicle and the traffic. The following driver in a

rear-end collision is presumed to be at fault, Mart v. Hill, 505 So. 2d 1120

(La. 1987); Ebarb v. Matlock, 46,243 (La. App. 2 Cir. 5/18/11), 69 So. 3d

516, writ denied, 11-1272 (La. 9/23/11), 69 So. 3d 1164. In a three-vehicle,

chain collision, the middle driver can rebut this presumption, Billiot v. Noble

Drilling Corp., 236 La. 793, 109 So. 2d 96 (1959); Chambers v. Graybiel,

25,840 (La. App. 2 Cir. 6/22/94), 639 So. 2d 361. She submits Southern

failed to rebut the presumption: he did not show that she (Jabbia) created the

sudden emergency (in fact, the district court found her not at fault); he did

not prove he had his truck under control and kept a reasonable distance; and

he owed no duty to protect Bonnett from injury – he owed this duty only to

Jabbia. She also argues that a person who is negligent cannot claim the

sudden emergency doctrine, State Farm v. LeRouge, 07-0918 (La. App. 4

Cir. 11/12/08), 995 So. 2d 1262, writ denied, 09-0124 (La. 3/27/09), 5 So.

3d 143. She contends that by failing to lock his brakes, Southern was

negligent and thus cannot get the benefit of sudden emergency.

The driver of a motor vehicle shall not follow another vehicle more

closely than is reasonable and prudent, having due regard for the speed of

such vehicle and the traffic upon and the condition of the highway. La. R.S.

32:81 (A). A following motorist in a rear-end collision is presumed to have

breached this duty and, therefore, is presumed negligent. Mart v. Hill,

supra. However, the following motorist may avoid liability by establishing 5 that he had his vehicle under control, closely observed the lead vehicle, and

followed at a safe distance under the circumstances. Eastman v. State Farm,

23-01107 (La. 5/1/24), 384 So. 3d 865; Ebarb v. Matlock, supra. He may

also avoid liability by establishing a sudden emergency: a person who finds

himself in a position of imminent peril, without sufficient time to consider

and weigh all his options or the best means by which to avoid the danger, is

not negligent if he fails to take the option which, subsequently and on

reflection, appears to be better. Hickman v. S. Pac. Transp. Co., 262 La.

102, 262 So. 2d 385 (1972); Ebarb v. Matlock, supra. The rule of sudden

emergency cannot be invoked, however, by one who has not used due care

to avoid the emergency. Dick v. Phillips, 253 La. 366, 218 So. 2d 299

(1969); Ebarb v. Matlock, supra.

Our review of the record leads us to the same conclusion as the

district court: the only cause of this accident was Bonnett’s rear-end

collision into Southern, which then propelled Southern’s truck into Jabbia’s

car. Southern testified, and Trooper Dean agreed, that the Silverado would

not have struck the Malibu had the Silverado not first been struck by the

Cruze. The court could reasonably find that, even if Southern had come to a

complete stop, he still would have been catapulted into Jabbia. The court

could also find that, on the damp pavement, it was prudent for Southern not

to stomp on his brakes but to slow gradually. The only evidence to the

contrary was Jabbia’s testimony, but we are constrained to note that she was

impeached by the contemporaneous statements she made to Trooper Dean

on bodycam. There was no accident reconstruction or other expert

testimony. On this record, we cannot say the court’s finding that Southern

was not at fault lacks a factual basis or was clearly wrong. 6 This finding is consistent with most of the jurisprudence involving

three-vehicle, chain-reaction collisions: the rear driver is usually found

totally at fault, and the middle driver is absolved, as in Ebarb v. Matlock,

supra; Leblanc v. Bouzon, 14-1041 (La. App. 3 Cir. 3/4/15), 159 So. 3d

1144; and Domingo v. State Farm, 10-264 (La. App. 5 Cir. 11/9/10), 54 So.

3d 74. The middle driver was found liable in Chambers v. Graybiel, supra,

but this was based on testimony that he struck the lead driver first, before

himself being struck by the rear driver and then striking the lead driver

again. There was no such evidence in the instant case.

Some cases have phrased the sudden emergency doctrine as though it

applied only when the lead motorist created a hazard which the following

motorist could not avoid. King v. State Farm Ins. Co., 47,368 (La. App. 2

Cir. 8/8/12), 104 So. 3d 33; Holland v. State Farm Mut. Auto. Ins. Co.,

42,753 (La. App. 2 Cir. 12/5/07), 973 So. 2d 134; Howard v. GEICO Cas.

Co., 22-605 (La. App. 3 Cir. 3/29/23), 364 So. 3d 489. However, cases

routinely apply the doctrine to hazards created by third parties as well. King

v. State Farm, supra; Stelly v. National Union Fire Ins. Co., 18-293 (La.

App. 3 Cir. 2/6/19), 266 So. 3d 395; Domingo v. State Farm, supra. The

district court did not abuse its discretion in implicitly finding that Southern

reacted reasonably to the sudden emergency caused by Bonnett’s Cruze.

This assignment of error lacks merit.

CONCLUSION

For the reasons expressed, the judgment is affirmed. All costs are to

be paid by the plaintiff, Janet Jabbia.

AFFIRMED.