Kelley v. General Insurance Co. of America

168 So. 3d 528, 2014 La.App. 1 Cir. 0180, 2014 La. App. LEXIS 3051, 2014 WL 7276438
CourtLouisiana Court of Appeal
DecidedDecember 23, 2014
DocketNo. 2014 CA 0180
StatusPublished
Cited by31 cases

This text of 168 So. 3d 528 (Kelley v. General Insurance Co. of America) 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
Kelley v. General Insurance Co. of America, 168 So. 3d 528, 2014 La.App. 1 Cir. 0180, 2014 La. App. LEXIS 3051, 2014 WL 7276438 (La. Ct. App. 2014).

Opinions

WELCH, J.

Lin this action for damages, the defendants, Katherine Skinner and her liability insurer, USAA Casualty Insurance Company1 (“USAA”) appeal a judgment rendered pursuant to a jury verdict in favor of the plaintiff, Timothy E. Kelley, and against Skinner and USAA, in solido, in the amount of $422,500.00, plus judicial interest and costs. Kelley has separately appealed challenging the quantum of damages awarded by the jury for his personal injuries. For reasons that follow, we affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL HISTORY

On March 16, 2008, Kelley was a patron of the “Exxon on the Run” located on Perkins Road in Baton Rouge, Louisiana, and was pumping gas into his vehicle at one of the gas pumps. At the same time, an unidentified patron, who had finished pumping gas at the pump opposite Kelley, drove off with the gas pump hose and nozzle still attached to the patron’s vehicle. The hose stretched and ultimately snapped back, violently striking and injuring Kelley. Kelley sustained injuries from this incident, including back and neck injuries, which aggravated his pre-existing back and neck injuries that had previously required surgery.

On March 12, 2009, Kelley timely filed a petition for damages against his uninsured/underinsured motorist (“UM”) carrier, General Insurance Company of America, on the basis that the unidentified patron, who drove away with the gas pump hose still attached to the vehicle, was “uninsured” under the applicable law and pursuant to his contract of insurance. In addition, Kelley sued alleged tortfea-sors, Gilbarco, Inc. (“Gilbarco”), Catlow, Inc. (“Catlow”), Exxon Mobil ^Corporation (“Exxon”), and R.L. Hall and Associates (“Hall”).2 In a supplemental and amending petition filed on March 2, 2011, Kelley added as defendants Skinner, the previously unidentified patron who drove away with the gas pump attached to her vehicle, and her liability insurer, USAA3 According to Kelley, he [532]*532added Ms. Skinner to the lawsuit as soon as he was able to identify and locate her.4

Skinner and USAA filed a peremptory-exception raising the objection of prescription, urging that Kelley’s claims had prescribed because they were filed more than one year after the date of the accident. Arguing that the exception should be referred to the trial on the merits because the basis for the exception was dependant upon the jury’s findings, Skinner and USAA asserted that “unless the jury finds that [they] are joint tortfeasors with a timely named and served defendant ... or are liable in solido with a timely named and served defendant ..., the petition ... is barred by the one year prescriptive period provided under La. [Civil Code art.] 3492.” At a hearing on July 25, 2012, the issue of prescription was argued and submitted, and the trial court overruled the exception in a judgment signed on July 27,2012.5

|4The matter then proceeded to a jury trial from July 15, 2013, until July 17, 2013. At the conclusion of the trial, the jury awarded Kelley damages as follows:

Past medical expenses $130,500.00
Future medical expenses $12,000.00
Past physical pain and suffering $150,000.00
Future physical pain and suffering $55,000.00
Past mental anguish ■ $75,000.00
Future mental anguish $0.00
Loss of enjoyment of life $0.00
TOTAL $422,500.00

Following the jury’s verdict, Skinner and USAA re-urged the peremptory exception raising the objection of prescription, and the trial court overruled the objection. Thereafter, the trial court signed a written judgment on September 4, 2108, in accordance with the jury’s verdict as follows:

IT IS ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of the plaintiff, Timothy E. Kelley, and against defendants, Katherine Skinner and USAA Casualty Insurance Co., in solido, in the sum of Four Hundred Twenty-Two Thousand Five Hundred ($422,500.) Dollars, together with judicial interest thereon and for costs.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that there be judgment in favor of the defendant, General Insurance Company of America, [533]*533and against the plaintiff, Timothy E. Kelley, dismissing the plaintiff’s lawsuit against General Insurance Company of [America], with prejudice and at the plaintiffs costs.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that (1) the cross-claim of General Insurance Company of America against defendants, Katherine Skinner and USAA Casualty Insurance Co. is dismissed as moot; and (2) the exception of prescription of Katherine Skinner and USAA Casualty Insurance Co. directed to the plaintiffs cause of action is [overruled].

IsKelley filed a motion for judgment notwithstanding the verdict (JNOV), which was denied by the trial court in a judgment signed on November 8, 2013.

Skinner and USAA have appealed the trial court’s September 4, 2013 judgment challenging the trial court’s ruling on the objection of prescription. Kelley filed a separate appeal, challenging both the trial court’s final judgment of September 4, 2013, and the trial court’s November 8, 2013 judgment denying his JNOV. In his appeal, Kelley contends that the jury abused its discretion and was manifestly erroneous in: failing to award him damages for loss of enjoyment of life and future mental anguish when such damages .were sufficiently proven and awarding damages that were excessively low. Further, Kelley answered Skinner and USAA’s appeal, arguing that should this court decide that Skinner and USAA are not liable for his damages, then his UM insurer, General, should be cast with the full amount of the judgment (amended pursuant to the arguments set forth in his appeal), as General was timely sued within the prescriptive period from the date of the accident.

LAW AND DISCUSSION

Prescription

Louisiana Civil Code Article 3492 provides that delictual actions are subject to a liberative prescription of one year, which commences to run from the day injury or damage is sustained. See also Rabom v. Albea, 2013-0633 (La.App. 1st Cir.4/16/14), 144 So.3d 1066, 1070-1071, writ denied, 2014-1239 (La.9/26/14), 149 So.3d 264. The objection of prescription may be raised by a peremptory exception. La. Code Civ. P. art. 927(A)(1). At the trial of a peremptory exception, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. La. Code Civ. P. art. |fi931. When prescription is raised by peremptory exception, with evidence being introduced at the hearing on the exception, the trial court’s findings of fact on the issue of prescription are subject to the manifest error-clearly wrong standard of review. London Towne Condominium Homeowner’s Ass’n v. London Towne Co., 2006-401 (La.10/17/06), 939 So.2d 1227, 1231. Under the manifest error standard of review, a factual finding cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993).

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Cite This Page — Counsel Stack

Bluebook (online)
168 So. 3d 528, 2014 La.App. 1 Cir. 0180, 2014 La. App. LEXIS 3051, 2014 WL 7276438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelley-v-general-insurance-co-of-america-lactapp-2014.