Joseph Jacobs, Sr. v. Safeway Insurance Company

• Court: Louisiana Court of Appeal
• Decided: November 2, 2006
• Docket: CA-0006-0638
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 06-638 consolidated with CA 06-639

JOSEPH JACOBS, SR., ET AL.

VERSUS

SAFEWAY INSURANCE COMPANY, ET AL.

**********

APPEAL FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 2004-5896-A HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

BILLY HOWARD EZELL JUDGE

Court composed of Michael G. Sullivan, Elizabeth A. Pickett, and Billy Howard Ezell, Judges.

REVERSED.

Keith Michael Borne Borne, Wilkes & Brady P. O. Box 4305 Lafayette, LA 70502-4305 (337) 232-1604 Counsel for Defendants/Appellees: Safeway Insurance Company Unopened Succession of Panzy Dixon Burnett James Thompson Lee P. O. Box 1021 Bunkie, LA 71322 (318) 346-6616 Counsel for Plaintiffs/Appellees: Joseph Jacobs, Sr. Joseph Jacobs, Jr. Joemont’e Jacobs

Rodney Marchive Rabalais Rabalais & Roy P. O. Box 447 Marksville, LA 71351 (318) 253-4622 Counsel for Defendant/Appellee: Melancon Funeral Home

Kerry Lyndon Spruill P.O. Box 105 Marksville, LA 71351 (318) 253-8376 Counsel for Defendant/Appellee: Derek Coleman

Michael Sheldon Koch Neblett, Beard & Arsenault Post Office Box 1190 Alexandria, LA 71309-1190 (318) 487-9874 Counsel for Defendant/Appellee: Valerie Roy

Bonita K. Preuett-Armour Armour Law Firm P. O. Box 710 Alexandria, LA 71309 (318) 442-6611 Counsel for Defendants/Appellants: State Farm Mutual Auto Insurance Company Felicia Benjamin

Jeffrey Scott Ingram Attorney at Law P. O. Box 648 Alexandria, LA 71309 (318) 443-4090 Counsel for Defendant/Appellee: Mar-Dan Enterprises EZELL, JUDGE.

Felicia Benjamin and State Farm Mutual Automobile Insurance Company

appeal the decision of the trial court finding Ms. Benjamin to be fifty percent at fault

for an auto accident involving a drunk driver. For the following reasons, we reverse

the decision of the trial court.

This case involves an automobile accident that occurred on June 28, 2003 on

U.S. Highway 71 south of Cheneyville. Ms. Benjamin was driving south on Highway

71 through Cheneyville with her boyfriend, Derek Coleman, when she came upon the

car of Panzy Burnett. In the vehicle with Ms. Burnett were Latanya Pearson and

Valerie Roy. Ms. Benjamin passed Ms. Burnett’s car and continued south, setting her

cruise control around sixty miles per hour. Approximately two miles later, Ms.

Burnett’s vehicle tried to pass Ms. Benjamin. However, Ms. Burnett, who was legally

intoxicated at the time, failed to remain in the northbound (passing) lane and

sideswiped Ms. Benjamin. Ms. Burnett struck Ms. Benjamin twice before passing in

front of her vehicle and ran off the road into a ditch. The collision with the ditch

caused Ms. Burnett’s vehicle to flip. The Burnett vehicle eventually hit a utility pole

with such force that it wrapped around the pole and spun one hundred eighty degrees

around it. Ms. Burnett and Ms. Pearson were killed. Ms. Roy was thrown from the

vehicle and suffered serious injuries.

Joseph Jacobs, Sr., filed this suit on behalf of his sons, Joseph, Jr., and

Joemont’e, for the wrongful death of their mother, Ms. Pearson. Ms. Roy instituted

another, consolidated action to recover for the injuries she incurred. Suit was brought

against Ms. Benjamin and State Farm, Ms. Burnett’s insurer, Safeway Insurance

Company, and the unopened succession of Ms. Burnett. Trial proceeded against Ms.

Benjamin and State Farm only. Despite stipulations that the damages suffered by all

1 Plaintiffs were each under $50,000.00, the trial court awarded each of the Jacobs

children $150,000.00. Ms. Roy was awarded $165,000.00 in general damages and

$56,896.72 in special damages. The trial court held that fault for the accident was

fifty percent to Ms. Burnett and fifty percent to Ms. Benjamin. The trial court then

reduced the awards to $50,000.00. Ms. Benjamin and State Farm appeal this

decision, assigning several assignments of error. However, because we find merit in

their first assignment of error, that the trial court erred in determining Ms. Benjamin

was fifty percent at fault for the accident, we need not address the remaining

assignments of error.

Apportionment of fault is a finding of fact and is, therefore, reviewed pursuant

to the manifest error-clearly wrong standard of review. Broussard v. Family Dollar

Store, 05-645 (La.App. 3 Cir. 12/30/05), 918 So.2d 1148, writ denied, 06-303 (La.

4/28/06), 927 So.2d 287. This standard, which is based upon the reasonableness of

the factual findings in light of the record reviewed in its entirety, is well established

in our jurisprudence following the seminal cases of Rosell v. ESCO, 549 So.2d 840

(La.1989), and Stobart v. State, through Department of Transportation and

Development, 617 So.2d 880 (La.1993). We find, that based on the record as a

whole, the decision of the trial court was clearly wrong.

The physical evidence and expert testimony clearly establish that Ms. Benjamin

remained at all times in her correct travel lane, while Ms. Burnett failed to do so.

According to Trooper Jason Martell, yaw marks and debris found on the road

establish that the point of impact between the two vehicles was three feet into the

southbound lane, meaning Ms. Burnett was three feet into Ms. Benjamin’s lane when

the first collision occurred. Trooper Frederick Stevens, an expert in accident

reconstruction, agreed that based on the physical evidence, Ms. Burnett’s vehicle was

2 astride the center line at the time of impact. Trooper Stevens further testified that

based on the speeds of the vehicles and the measurements taken at the scene, the

second collision occurred a mere 0.72 seconds after the first, causing Ms. Burnett’s

vehicle to further lose control and dart across the path of Ms. Benjamin into the

southbound ditch. Blood analysis performed on Ms. Burnett after the accident

indicated that she had a blood alcohol content of 0.15. The legal limit was 0.10 at the

time of the accident.1 Trooper Stevens determined that alcohol was a contributing

factor to the accident.

The trial court stated that he did not believe Ms. Benjamin’s version of the

events to be exactly how the accident happened. Because she stated that she believed

Ms. Burnett’s car struck hers first in the front of her vehicle rather than the rear with

the physical evidence indicating the opposite, we find the court was correct in that

belief. However, the simple fact that Ms. Benjamin confused the timing of two

collisions, estimated by Trooper Stevens to be 0.72 seconds apart, does not change

the fact that all of the physical evidence indicates that Ms. Benjamin was struck while

in her travel lane by an inebriated driver.

The trial court claimed that, based on several inconsistencies between the

testimonies of Ms. Benjamin and Mr. Coleman, he found their testimony to be

questionable. However, the inconsistencies he relied on in making this determination,

such as who drove to bingo seven hours earlier, whether the radio was on prior to the

accident, or whether Mr. Coleman said “what are they doing” immediately prior to

the first collision or immediately thereafter, were minuscule at best and irrelevant to

the cause of the accident.2 Ms. Benjamin and Mr. Coleman were consistent and never

1 Ms. Benjamin’s blood alcohol content was found to be zero. 2 Ironically, the trial court found the testimony of Ms. Roy credible despite the fact that she never mentioned Ms. Benjamin speeding up in any statement or deposition prior to trial, or the fact that she claimed to never have seen Ms. Burnett drinking despite being in a bar for over three hours

3 differentiated in their testimony that after passing the Burnett vehicle Ms. Benjamin

set her cruise control and never sped up. Their claims that she never left her lane

were supported by the physical evidence and the testimony of Trooper Stevens, an

expert in accident reconstruction. Trooper Martell testified that the statements given

by Ms. Benjamin and Mr. Coleman, which were the same as their testimony at trial,

match what they told him at the scene of the accident.

The trial court had serious concerns about why the couple did not exit the

vehicle after the accident to check on the people in the Burnett car. However, Ms.

Benjamin’s and Mr. Coleman’s testimonies were consistent in that Ms. Benjamin, six

months pregnant at the time, was incredibly shaken after the accident and prevented

Mr. Coleman from leaving her car. This was supported by the testimony of Trooper

Martell, who remembered Ms. Benjamin being visibly frightened. The trial court’s

determination that there was another, nefarious reason for this delay in exiting the car

is mere conjecture based on no evidence whatsoever.

Simply put, the trial court’s concerns about irrelevant differences in Ms.

Benjamin’s and Mr. Coleman’s testimonies do not outweigh the physical evidence,

which unequivocally establishes that Ms. Benjamin remained in her lane of travel at

all times, that Ms. Burnett was intoxicated at the time of the accident, and that Ms.

Burnett struck Ms. Benjamin while straddling the center line in a failed attempt to

pass Ms. Benjamin.

Louisiana Revised Statutes 32:79 creates a duty for a driver to refrain from

switching traffic lanes until it has first been ascertained that such movement can be

safely made. The record and evidence clearly show that Ms. Burnett breached this

duty. All the fault for this accident, as established by the testimonies of Troopers

with Ms. Burnett, who had a blood alcohol content over the legal limit. Until the date of trial, Ms. Roy consistently said she could remember little about the accident.

4 Martell and Stevens, Ms. Benjamin, and Mr. Coleman, and, most critically, the

physical evidence, lies with the drunk driver, Ms. Burnett. The trial court erred in

assigning any fault to Ms. Benjamin.

The decision of the trial court assigning Felicia Benjamin fault in this matter

is hereby reversed. Costs of this appeal are assessed equally against the Plaintiffs.