Kilpatrick v. Alliance Cas. & Reinsurance Co.

663 So. 2d 62, 95 La.App. 3 Cir. 17, 1995 La. App. LEXIS 1876, 1995 WL 392476
CourtLouisiana Court of Appeal
DecidedJuly 5, 1995
Docket95-17
StatusPublished
Cited by29 cases

This text of 663 So. 2d 62 (Kilpatrick v. Alliance Cas. & Reinsurance Co.) 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
Kilpatrick v. Alliance Cas. & Reinsurance Co., 663 So. 2d 62, 95 La.App. 3 Cir. 17, 1995 La. App. LEXIS 1876, 1995 WL 392476 (La. Ct. App. 1995).

Opinion

663 So.2d 62 (1995)

Joseph B. KILPATRICK, et al., Plaintiffs-Appellants,
v.
ALLIANCE CASUALTY AND REINSURANCE COMPANY, et al., Defendants-Appellees.

No. 95-17.

Court of Appeal of Louisiana, Third Circuit.

July 5, 1995.
Writ Denied November 17, 1995.

*64 William Stafford Neblett, Alexandria, for Joseph B. Kilpatrick, et ux Indiv. Etc.

Michael Thomas Johnson, Alexandria, for Liga & McManus.

Robert Lewis Bussey, Asst. Dist. Atty., for Rapides Parish Police Jury.

Charles F. Wagner, Alexandria, for LA. DOTD.

Before KNOLL, COOKS and PETERS, JJ.

KNOLL, Judge.

This personal injury lawsuit involves an automobile collision between a left-turning gravel truck and another vehicle that was attempting to pass. The trial court allocated 70% fault to Joseph Kilpatrick, the driver of the passing vehicle, and 30% to Gerald R. McManus, Jr., the driver of the left-turning gravel truck, and awarded Kilpatrick $5,000.00 general damages, $1,873.00 for property damages, and special damages of $2,780.00. The trial court denied the loss of consortium claims of Kilpatrick's wife, Janice, and his minor children, Brandy and Summer, and denied Kilpatrick's damage claim for the loss of use of his vehicle.

The Kilpatricks appeal, contending that the trial court was manifestly erroneous in: (1) assessing Joseph Kilpatrick with 70% comparative fault; (2) in awarding $5,000.00 *65 general damages; (3) failing to award damages for loss of consortium for Janice, Brandy, and Summer; and (4) failing to award damages for Joseph Kilpatrick's loss of use of his vehicle. We reverse the trial court's allocation of fault, increase the general damage award, and award damages for loss of consortium.

FACTS

On June 12, 1991, McManus, an employee of Rodrick Bushnell, was operating an eighteen-wheel gravel truck, traveling in an easterly direction on Louisiana Highway 116. Kilpatrick was driving his pick-up truck in an easterly direction behind McManus's gravel truck.

Kilpatrick testified that he followed McManus's gravel truck for approximately two miles and that the gravel truck was steadily traveling 45 m.p.h. Finally, when the left-hand lane was clear of traffic, Kilpatrick decided to pass because the gravel truck was travelling slowly. He stated that his pickup truck cleared the trailer portion of McManus's eighteen-wheeler. However, when his pickup truck was even with the tractor portion of McManus's vehicle (at the left rear wheel of the gravel truck), McManus attempted to turn left onto Duncan Road without signalling. When McManus turned left, his gravel truck struck Kilpatrick's vehicle and knocked it into the ditch.

McManus's testimony differed from Kilpatrick's. McManus stated that he observed Kilpatrick's vehicle approaching from the rear just before he (McManus) attempted to make his left turn; he noted that Kilpatrick's vehicle seemed to be skidding out of control. McManus then stated that in an attempt to avoid a rear end collision, he shifted the gravel truck into a lower gear, signalled his turn, and attempted to get off the road by turning left.

The Kilpatricks brought suit against Gerald McManus and Alliance Casualty and Reinsurance Company (hereafter Alliance Casualty), the liability carrier of McManus's employer, Rodrick Bushnell. After suit was filed, Alliance Casualty was declared insolvent, and the Louisiana Insurance Guaranty Association appeared in its place. For ease of reference we will simply refer to the defendants as McManus.

APPELLATE REVIEW

An appellate court may not set aside a trial court's findings of fact in the absence of manifest error or unless they are clearly wrong. Stobart v. State Through DOTD, 617 So.2d 880 (La.1993).

In Mart v. Hill, 505 So.2d 1120 (La.1987), the Louisiana Supreme Court stated the two-tier test for reversal on appellate review:

(1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
(2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

A reviewing court must do more than simply review the record for evidence that supports or controverts the trial court's findings. It must review the record in its entirety to determine whether the trial court's findings were clearly wrong or manifestly erroneous. Stobart, 617 So.2d at 882. Also, the reviewing court must ascertain whether the trial court's conclusions were reasonable. Even when an appellate court may feel that its own evaluations are more reasonable than the factfinder's, reasonable determinations and inference of fact should not be disturbed. Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978). In Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990), citing Borden, Inc. v. Howard Trucking Co., 454 So.2d 1081 (La.1983), the Louisiana Supreme Court stated, "the appellate court's disagreement with the trial court, alone, is not grounds for substituting its judgment for that of the trier of fact."

Additionally, an appellate court must keep in mind that if a trial court's findings are reasonable, based upon the entire record, an appellate court may not reverse such findings even if it is convinced that had it been sitting as trier of fact, it would have weighed the evidence differently. Housley v. Cerise, 579 So.2d 973 (La.1991). In Stobart, 617 So.2d at 883, it was stated *66 that this well-settled principle of review is grounded not only upon the trial court's better capacity to evaluate live witnesses, but also upon the proper allocation of trial and appellate functions between the respective courts. Where there are two permissible views of evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong.

APPLICABLE LAW

The Kilpatricks contend that the trial court was manifestly erroneous in its assessment of 70% fault to Joseph Kilpatrick. They argue that McManus initiated his left-hand turn without first determining that such a maneuver could be safely taken.

Louisiana jurisprudence holds that the left-turning motorist and the overtaking and passing motorist must exercise a high degree of care because they are engaged in dangerous maneuvers. Neal v. Highlands Ins. Co., 610 So.2d 177 (La.App. 3 Cir.1992), writ denied, 612 So.2d 100 (La.1993).

The law sets forth the duties imposed on a left-turning driver as well as a passing driver. The duties imposed upon a left-turning motorist are found in La.R.S. 32:104. Under this statute, McManus was required to give a signal of his intent to make a left turn at least 100 feet before reaching Duncan Road. In addition to giving the proper signal, McManus was required to make a proper observation that the turn could be made without endangering a passing vehicle. Bamburg v. Nelson, 313 So.2d 872 (La.App. 2 Cir.), writ denied, 318 So.2d 57 (La.1975). The onerous burden placed upon a left-turning motorist is not discharged by the mere signaling of an intention to turn. The giving of a signal, which fact is disputed in the case sub judice, is immaterial if at the time the driver of the turning vehicle did not have the opportunity to make the turn in safety. Husser v. Bogalusa Coca Cola Bottling Co., 215 So.2d 921 (La.App. 1 Cir.1968).

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Bluebook (online)
663 So. 2d 62, 95 La.App. 3 Cir. 17, 1995 La. App. LEXIS 1876, 1995 WL 392476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kilpatrick-v-alliance-cas-reinsurance-co-lactapp-1995.