Lancon v. State Farm Mutual Insurance

645 So. 2d 692, 94 La.App. 3 Cir. 256, 1994 La. App. LEXIS 2619, 1994 WL 541512
CourtLouisiana Court of Appeal
DecidedOctober 5, 1994
DocketNo. 94-256
StatusPublished
Cited by4 cases

This text of 645 So. 2d 692 (Lancon v. State Farm Mutual Insurance) 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
Lancon v. State Farm Mutual Insurance, 645 So. 2d 692, 94 La.App. 3 Cir. 256, 1994 La. App. LEXIS 2619, 1994 WL 541512 (La. Ct. App. 1994).

Opinions

|1KNOLL, Judge.

Plaintiff, Deanna Lancon, appeals the jury’s allocation of fault between the parties and seeks an increase in quantum for injuries she received in an automobile collision. Mrs. Lancon also contends that the trial court erred in allowing the defendants to question her in the presence of the jury about her health insurance coverage. And finally, Mrs. Lancon assigns as error the trial court’s refusal to grant her motion for judgment notwithstanding the verdict, or in the alternative, for a new trial or for additur. For the reasons which follow, we reverse in part, amend the judgment, and render.

FACTS

On June 22, 1991, Deanna Lancon was on her way to work when she decided to stop by her sister’s home on Caroline Street in New Iberia. As she turned right into her sister’s driveway, she was hit by a vehicle driven by defendant Clarence Evans. The accident aggravated a degenerative arthritic condition that preexisted the accident but which had previously been asymptomatic, and Mrs. Lancon began to experience pain in her shoulders, neck, lower back, and arms. After conservative treatment by two doctors she was referred to a neurosurgeon, who ultimately performed a cervical foraminoto-my at C5-6 on the right and at C6-7 bilaterally.

|2Following a trial on the merits, a jury found Mrs. Lancon sixty-five percent at fault, Mr. Evans thirty-five percent at fault, and awarded Mrs. Lancon $5,000 in total damages. Mrs. Lancon moved for judgment notwithstanding the verdict, or in the alternative, for a new trial or for additur. The trial court denied the motions, and Mrs. Lancon appeals.

ADMISSIBILITY OF TESTIMONY OF INSURANCE COVERAGE

Plaintiffs first assignment of error concerns the admission at trial of testimony that she had health insurance through Mutual of Omaha. The trial judge admitted this evidence for the limited purpose of countering plaintiffs assertion that she could not afford to see a doctor after the accident, and [694]*694so instructed the jury. However, the testimony elicited on cross-examinatipn established that, in fact, plaintiffs insurance did not cover doctor’s visits. Mrs. Lancon contends that the entire line of questioning was irrelevant and highly prejudicial, and should have been excluded based on the collateral source doctrine. The defendants argue that the plaintiff opened the door to such questioning by testifying that she could not afford follow-up treatment, and that the limiting-instruction given to the jury by the trial judge cured any harm which might have otherwise resulted.

We believe that despite the limiting instruction, the potential for prejudice to Mrs. Lancon-was inherent in the presentation of evidence that she had medical insurance, notwithstanding that it was later discovered that the Mutual of Omaha policy provided no coverage for doctor’s visits. This determination could have easily been made outside the presence of the jury, thereby diminishing the possibility that the jury may have impermis-sibly Considered a collateral source of recovery in awarding damages.

In connection with this issue, we have considered the decision of the Fifth Circuit in Turcich v. Baker, 594 So.2d 505 (La.App. 5th Cir.1992), a case with facts similar to those of the case sub judice. In Turcich, the trial court, over objection, permitted testimony that the plaintiff had received some insurance benefits after an automobile accident. The defendant maintained that the plaintiff had “opened the door” to such questioning by testifying that she could not afford to go to physical therapy. On appeal, the Fifth Circuit agreed that the testimony was introduced for the purpose of impeachment, and held that the trial judge had not abused his discretion in allowing further questioning on the subject |3by defense counsel. We find that Turcich is distinguishable from the present ease and does not conflict with our ruling today.

Although Mrs. Lancon testified that she could not afford to see a doctor after the accident, no “impeachment” was possible in this regard because her hospitalization insurance did not provide coverage for regular doctor’s visits. Counsel for the defendants should not have been allowed free discovery of this information in the presence of the jury. While perhaps the jury did not allow the existence of an insurance policy to influence its decision, it is more likely than not that the entire line of questioning served only to alert the jurors to the possibility that Mrs. Lancon was covered by insurance, and therefore not deserving of full compensation for her injuries.

ALLOCATION OF FAULT

Mrs. Lancon next contends that the jury was manifestly erroneous in its allocation of fault between the parties. The jury found Mrs. Lancon to be sixty-five percent at fault in causing the collision. After reviewing the record as a whole, it is apparent that the jury erred in assessing fault to Mrs. Lancon.

Mrs. Lancon testified at trial that she slowed down as she approached her sister’s driveway, signaled, and started to make a right turn. As she did so, she heard “squeaking brakes in the back.” She looked into her rear view mirror and saw the defendant’s car “coming towards the [right] side.” She swerved back to the left, but the resulting collision was unavoidable. The passenger side of Mrs. Lancon’s 1981 Oldsmobile Regency sustained moderate damage.

Mr. Evans testified by deposition. He stated that Mrs. Lancon drove entirely into the left lane of Caroline Street, as if she intended to park on the opposite side of the road, when she suddenly made a wide, unsig-naled right turn in front of him. In describing the accident, Mr. Evans said, “[W]hen we got up beside of her my wife recognized who it was and she said, ‘oh, my goodness, she’s fixing to turn.’ • And that’s when I looked up and saw her_” (emphasis added). Mr. Evans claimed that “I looked up” in fact meant that he was looking straight ahead at the road, and denied that he was in any way distracted or inattentive before the accident occurred.

|4Mary Evans, the defendant’s wife, was a passenger in the vehicle at the time of the accident. She also testified that it appeared that Mrs. Lancon intended to park on the left side of Caroline Street, and that as her hus[695]*695band started to drive past Mrs. Lancon’s car, Mrs. Lancon suddenly attempted a wide right turn into the driveway.

Mrs. Lancon testified that after the accident, Mrs. Evans jumped out of the car and told her that “she was sorry that it had happened. Her husband was going too fast, and when she tried to tell him, she said she froze. She seen my lights and my signal. But when she went to tell him, she was — she froze; it wouldn’t come out.” Mrs. Evans denied this. However, Mrs. Evans did admit that she inquired if Mrs. Lancon was hurt and said, “[W]e have insurance. If you want to go to the doctor, go have yourself cheeked.”

Officer Jude Lemaire of the New Iberia Police Department investigated the accident. Describing what he observed when he arrived at the scene, Officer Lemaire said:

“In the 500 block of Caroline, there were two vehicles in the — one was partially off of the right-hand lane, partially in the yard on the right side, and there was a second vehicle that was just ahead of it that was at an angle in front of that — in front of that vehicle.”

Officer Lemaire testified that Mr.

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Bluebook (online)
645 So. 2d 692, 94 La.App. 3 Cir. 256, 1994 La. App. LEXIS 2619, 1994 WL 541512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lancon-v-state-farm-mutual-insurance-lactapp-1994.