King v. Illinois Nat. Ins. Co.

782 So. 2d 1104, 2001 La. App. LEXIS 356, 2001 WL 194643
CourtLouisiana Court of Appeal
DecidedFebruary 28, 2001
Docket34,473-CA
StatusPublished
Cited by8 cases

This text of 782 So. 2d 1104 (King v. Illinois Nat. Ins. 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
King v. Illinois Nat. Ins. Co., 782 So. 2d 1104, 2001 La. App. LEXIS 356, 2001 WL 194643 (La. Ct. App. 2001).

Opinion

782 So.2d 1104 (2001)

Karen KING, Plaintiff-Appellee
v.
ILLINOIS NATIONAL INSURANCE COMPANY, Defendant-Appellant.

No. 34,473-CA.

Court of Appeal of Louisiana, Second Circuit.

February 28, 2001.
Rehearings Denied March 29, 2001.

*1106 Lunn, Irion, Salley, Carlisle & Gardner by James A. Mijalis, Shreveport, Counsel for Appellant, Illinois National Insurance Company.

Tracy L. Oakley, Ruston, Matthew P. Loftus, Baton Rouge, Counsel for Appellant, Annessa Monique Theus.

Sentell Law Firm, L.L.C., by C. Sherburne Sentell, III, Minden, Counsel for Appellee, Karen King.

Before WILLIAMS, CARAWAY and DREW, JJ.

CARAWAY, J.

Plaintiff's neck, forehead, jaw and teeth were severely injured when the vehicle in which she was a guest passenger was struck by appellant's vehicle. This appeal concerns the trial court's finding that appellant was 100% at fault in the accident and its awarding general, special and future medical damages totaling $74,111.86. Appellant's insurer also appeals that part of the judgment finding it liable for legal interest on the total award from date of judicial demand until the date of the pretrial tender of its $10,000 policy limits. We now amend the trial court's award for general damages and its computation of the legal interest owed by the insurer and, *1107 as amended, affirm the trial court's judgment.

Facts and Procedural History

Karen King was a guest passenger in a vehicle being driven by her 15-year-old niece, Lindsey Kennedy, on the afternoon of January 13, 1998, in Minden, Louisiana. As the Kennedy vehicle proceeded westbound, it was struck by an oncoming vehicle driven by Annessa Theus, who was attempting a left turn at the signal-controlled intersection. Although disputed at trial, the trial court found that the Kennedy vehicle was indeed favored by the green light.

As a result of the ensuing collision, King was thrown into the windshield, sustained soft tissue and dental injuries, and injured her jaw. While "no dental injuries" was noted on the emergency room chart when she was seen there immediately after the accident, her regular dentist diagnosed eleven fractured teeth when she visited him one week later. Her dental treatment consisted of 12 crowns and 11 root canals. The dentist also prescribed occlusal splint therapy to alleviate temporomandibular joint ("TMJ") symptoms, such as headaches and pain when chewing certain foods. The dentist testified at trial that she would have to wear the splint for the rest of her life.

King sued Theus and the liability insurer, Illinois National, on its 10/20/10 policy limits. Following a bench trial, the trial court, in its written reasons for judgment, found Theus to be 100% at fault. It awarded King $14,111.86 for past medical expenses, $5,000 for future dental expenses and $55,000 in general damages. Judgment was rendered for $74,111.86, subject to a $10,000 credit in favor of Illinois National, which had tendered the policy limit on September 8, 1999, before trial. Illinois National was further cast in judgment for $6,344.93, for judicial interest owing on the entire award from date of judicial demand until the policy limits were tendered.

Illinois National suspensively appealed that part of the judgment allocating judicial interest. Theus appealed, contending that the trial court erred when (1) it failed to assess the other driver with any comparative fault; (2) it failed to cast Illinois National in judgment for judicial interest based on the entire award from date of judicial demand until paid; and (3) it awarded King $55,000 for general damages. King answered the appeal, asserting that the general damages portion of the judgment was inadequate.

Discussion

Liability

Appellant Monica Theus argues that the trial court erred when it failed to allocate any degree of fault for the accident to Kennedy, the driver of the other vehicle. Theus was the left-turning driver at the signal-controlled intersection where the accident occurred. There was a left-turn arrow, and Theus claimed that it turned to a yellow arrow during her turn.

The left-turning motorist has the statutory duty to yield to all vehicles approaching from the opposite direction which are within the intersection or so close thereto as to constitute an immediate hazard. Smith v. Commercial Union Ins. Co., 609 So.2d 1024 (La.App. 2d Cir. 1992), writ denied, 612 So.2d 86 (La.1993); Price v. City of Slidell, 97-2066 (La.App. 1 Cir.9/25/98), 723 So.2d 455; La. R.S. 32:122. Once the evidence establishes that the turning motorist was attempting to make a left turn when the accident occurred, the burden of proof shifts to that motorist to absolve herself of liability. See, Strong v. Farm Bureau Ins. Co., 32-414 (La.App. 2 Cir.10/29/99), 743 So.2d 949, writ denied, XXXX-XXXX (La.2/4/00), 754 *1108 So.2d 229. If the left-turning motorist is faced with a green arrow left-turn signal, she must prove that she was making such a turn while the arrow was green, or that she had pre-empted the intersection. Thompson v. Chevron U.S.A., Inc., 94-1107 (La.App. 1 Cir.4/7/95), 653 So.2d 1351, writ denied, 95-1173 (La.6/23/95) 656 So.2d 1019; Dunn v. Snyder, 388 So.2d 450 (La. App. 2d Cir.1980).

The trial court's opinion specifically found that the collision occurred in Kennedy's lane of traffic and that Theus was 100% at fault in causing the accident. It explicitly rejected Theus' testimony indicating that the turn arrow was illuminated green as she started her turn and turned yellow as she proceeded through the intersection, as well as her self-serving testimony that Ms. Kennedy was speeding. The trial court instead relied upon the testimony of a third driver, Janice Bath, whose vehicle was proceeding alongside Kennedy's vehicle in the inside lane of travel. As her car proceeded through the intersection with the green light, she was startled by Theus' attempt to turn.

It is well-settled that a court of appeal may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Touchard v. Slemco Elec. Foundation, 99-3577 (La.10/17/2000), 769 So.2d 1200 (citing Arceneaux v. Domingue, 365 So.2d 1330 (La.1978)). An allocation of fault is a factual determination subject to the manifest error rule. Boggs v. Voss, 31,965 (La.App.2d Cir.6/16/99), 741 So.2d 139. When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review; the issue for the reviewing court is not whether the trier of fact was wrong, but whether the fact-finder's conclusions were reasonable under the evidence. Touchard, Id. Our review of the record in the instant case convinces us that the trial court's allocation of 100% fault to Theus for her sudden and unauthorized turn through the intersection is reasonable under the evidence. Accordingly, this assignment of error lacks merit.

Quantum

General damages involve mental or physical pain and suffering, inconvenience, loss of intellectual or physical enjoyment, or other losses of lifestyle which cannot be measured exactly in monetary terms. Morris v. United Services Auto. Ass'n, 32,528 (La.App.2d Cir.2/18/00), 756 So.2d 549. The discretion vested in the trier of fact is great, and even vast, so that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La. 1993).

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Bluebook (online)
782 So. 2d 1104, 2001 La. App. LEXIS 356, 2001 WL 194643, Counsel Stack Legal Research, https://law.counselstack.com/opinion/king-v-illinois-nat-ins-co-lactapp-2001.