Judgment rendered March 30, 2022. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 54,262-CA No. 54,263-CA (Consolidated Cases)
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
No. 54,262-CA No. 54,263-CA LAPORSCHA TERRELL KALYN SMITH Plaintiff-Appellant Plaintiff-Appellant
versus versus
NEW ALLIANCE INSURANCE NEW ALLIANCE INSURANCE BROKERS, INC., ET AL., & BROKERS, INC., ET AL., & KEYNNECT LOGISTICS KEYNNECT LOGISTICS AND RIDER GONZALES AND RIDER GONZALES Defendants-Appellees Defendants-Appellees
**** Appealed from the Ruston City Court for the Parish of Lincoln, Louisiana Trial Court Nos. 54021 and 54022
Honorable Danny W. Tatum, Judge
IVAN J. DAIGS Counsel for Appellants
THOMAS, SOILEAU, JACKSON Counsel for Appellees & COLE, L.L.P. By: Steven E. Soileau
Before STONE, COX, and O’CALLAGHAN (Pro Tempore), JJ. O’CALLAGHAN, J. (Pro Tempore)
The plaintiffs, LaPorscha Terrell and Kalyn Smith, appeal from a trial
court judgment finding they failed to establish that the defendants were
liable to them for injuries sustained in a motor vehicle accident. For the
following reasons, we affirm the trial court judgment.
FACTS
Terrell and Smith were students at Grambling State University. On
April 17, 2019, they left a Walmart store in Ruston after buying supplies for
a birthday party for a sorority sister. They claimed that, at 10 p.m., they
were driving back to campus, westbound on I-20, in the right-hand lane,
when an 18-wheeler, in the left-hand lane, also traveling westbound, crossed
over into their lane and sideswiped them. They pursued the driver of the
vehicle, who eventually stopped. Police were called. After speaking to the
police, the plaintiffs went to the party and stayed approximately two hours.
On April 30, 2020, Terrell and Smith filed separate suits in Ruston
City Court against New Alliance Insurance Brokers, Inc. (“New Alliance”),
Keynnect Logistics (“Keynnect”), and Rider Gonzalez.1 They alleged that,
at the time the accident occurred, Gonzalez “was driving a 2011 Volvo
Tractor, (18-wheeler), bearing VIN [vehicle identification number] number
4V4NC9EH9BN52901 and FL license plate CA99VS.” They asserted that
Keynnect was a trucking business owned by Gonzalez and that he
maintained a policy of liability insurance issued by New Alliance. They
1 The legal deadlines applicable to legal proceedings in all Louisiana courts were suspended during the State Emergency for Covid-19. See pertinent emergency proclamations 30 JBE 2020 and 41 JBE 2020. claimed that Gonzalez merged into their lane causing the accident and their
injuries. The suits were consolidated in the trial court on May 22, 2020.
After answering the suit, New Alliance filed a motion for summary
judgment claiming that it was an insurance broker, not an insurance
company, and a direct action could not be maintained against it. New
Alliance denied involvement in the claims raised in this suit. The trial court
granted summary judgment in favor of New Alliance, dismissing the
plaintiffs’ claims against the company with prejudice. Keynnect and
Gonzalez remained in the suit.
On August 25, 2020, Keynnect and Gonzalez filed a declinatory
exception and motion for involuntary dismissal asserting that the plaintiffs
failed to serve them with the suit within 90 days of filing. They requested an
involuntary dismissal. On December 2, 2020, the exception and motion to
dismiss were denied. The plaintiffs were ordered to make service under the
long arm statute as soon as possible.
On December 3, 2020, Keynnect and Gonzalez filed an answer to the
plaintiffs’ petitions in which they stated, “It is admitted that Keynnect
Logistics is a trucking business and Rider Gonzalez was operating a 2011
truck,” and “Rider Gonzalez was operating a 2011 Volvo tractor on
Interstate 20 in Ruston, Lincoln Parish, Louisiana.” All other allegations
were denied.
On March 10, 2021, the case was tried. Smith testified by
videoconferencing, and Terrell testified in person.2 They both stated that an
2 Smith, who lived in Texas, had car trouble and was unable to make it to Ruston for court. The trial court allowed her to testify by videoconferencing, over the objection of the defendants. 2 18-wheeler merged into their lane on the interstate, they were injured, and
they were treated by chiropractors. They introduced their medical records
and bills into evidence. No evidence or testimony concerning the identity of
the driver of the 18-wheeler, which 18-wheeler was involved, or the
ownership of that vehicle was introduced at trial.
At the close of the testimony, the court called for briefs to be
submitted. At that point, the defendants’ attorney stated in court:
[I]n the brief I’m going to point out that the names of my clients [were] not mentioned, not one time today in evidence and there’s no proof that my clients were involved in this accident. That’s a problem for the plaintiff. And I just want fair warning to the Court and opposing counsel. None of that evidence was brought up and there’s no admissions and stipulations about anything.
On April 1, 2021, the trial court filed its written reasons for rendering
judgment in favor of the defendants. The trial court noted that the plaintiffs
alleged in their petitions that their vehicle was negligently struck by an 18-
wheeler driven by Gonzalez. The plaintiffs also alleged that Gonzalez was
employed by Keynnect and New Alliance was the insurer. These parties
were named as defendants. The defendants answered and denied the
plaintiffs’ allegations.
The court pointed out that none of the defendants were present at trial.
At trial, only Terrell and Smith testified and neither named nor identified the
defendants. No testimony or documentary evidence was offered to establish
a causal connection with the defendants. The court observed that only the
defendants submitted a post-trial brief. The court adopted the cases
referenced in the defendants’ brief, dealing with failure to carry the burden
of proof in a motor vehicle accident case, and found that the plaintiffs did
not present sufficient evidence to establish, by a preponderance of the 3 evidence, a causal connection to any named defendant. Because the
plaintiffs failed to prove their right to recover against Keynnect and
Gonzalez, the trial court found there was no reason to discuss damages. On
May 10, 2021, the trial court signed a judgment in favor of Keynnect and
Gonzalez, dismissing the plaintiffs’ claims against the defendants with
prejudice.
PROOF OF CLAIM
The plaintiffs appealed, arguing that the trial court erred in dismissing
their claims. The plaintiffs maintain that they carried their burden of
proving, by a preponderance of the evidence, that they are entitled to recover
for their personal injuries in this matter. This argument is without merit.
Legal Principles
The plaintiff seeking damages in a civil action must prove each
element of his claim by a preponderance of the evidence. Erwin v. State
Farm Mut. Auto. Ins. Co., 34,127 (La. App. 2 Cir. 11/1/00), 771 So. 2d 229,
writ denied, 00-3285 (La. 2/2/01), 784 So. 2d 6. See also Willis v. Manning,
37,259 (La. App. 2 Cir. 6/25/03), 850 So. 2d 983. Proof by preponderance
of the evidence means that the evidence, when taken as a whole, shows that
the fact to be proven is more probable than not. Erwin v. State Farm Mut.
Auto. Ins. Co., supra. If the party bearing the burden of proof fails to satisfy
his burden by a preponderance of the evidence, his case fails to outweigh his
opponent’s case and he necessarily loses. Miller v. Leonard, 588 So. 2d 79
(La. 1991); Erwin v. State Farm Mut. Auto. Ins. Co., supra.
In all civil cases, the appropriate standard for appellate review of
factual determinations is the manifest error-clearly wrong standard, which
precludes the setting aside of a trial court’s finding of fact unless that finding 4 is clearly wrong in light of the record reviewed in its entirety. Hayes Fund
for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky
Mountain, LLC, 14-2592 (La. 12/8/15), 193 So. 3d 1110; Harper v. State
Farm Mut. Auto. Ins. Co., 50,728 (La. App. 2 Cir. 6/22/16), 198 So. 3d 168.
Thus, a reviewing court may not merely decide if it would have found the
facts of the case differently. Hayes Fund for First United Methodist Church
of Welsh, LLC, supra; Harper, supra. In reversing a factfinder’s
determinations, the appellate court must satisfy a two-step process based on
the record as a whole: there must be no reasonable factual basis for the trial
court’s conclusion, and the finding must be clearly wrong. Stobart v. State
through Dept. of Transp. & Dev., 617 So. 2d 880 (La. 1993).
This test requires a reviewing court to do more than simply review the
record for some evidence which supports or controverts the trial court’s
findings. The court must review the entire record to determine whether the
trial court’s finding was clearly wrong or manifestly erroneous. Hayes Fund
for First United Methodist Church of Welsh, LLC, supra; Harper, supra.
The issue to be resolved by a reviewing court is not whether the trier of fact
was right or wrong, but whether the factfinder’s conclusion was a reasonable
one. Stobart, supra.
Discussion
According to the plaintiffs, they proved their right to recover against
the defendants. This argument is simply not supported by the record. In
their petitions, Terrell and Smith alleged that they were injured when
Gonzalez, driving a 2011 Volvo 18-wheeler, merged into their lane on the
interstate. They listed the VIN and the Florida license plate number of the
vehicle. They also alleged that Keynnect was a trucking business operating 5 out of Florida, it was owned by Gonzalez, and he maintained a liability
insurance policy with New Alliance. Notably, the petition does not allege
that the truck was owned by Keynnect or that Gonzalez was working for
Keynnect at the time of the accident.
At trial, in support of their claims against the defendants, the plaintiffs
offered only their own testimony and submitted their medical records and
bills. Smith testified that, on the evening of the accident, she was a
passenger in a car driven by Terrell. They left a Walmart store and were on
the interstate heading back to campus to a party when they were hit. Smith
described the vehicle that hit them as follows, “It was like a big white – like
a 18 wheeler type of truck – like they – like a diesel truck type thing. All I
know it’s a big truck.” Terrell did not completely lose control of her
vehicle. They caught up with the trucker and flagged him down. The police
were called and Smith gave them her statement. She did not talk to the truck
driver.
Smith claimed she had pain in her knees immediately after the
accident and she sought medical treatment with a chiropractor, Dr. Robert C.
Rendina, on April 30, 2019. This was 13 days after the accident and the
appointment was set up by her attorney. Her last visit with Dr. Rendina was
on May 3, 2019. She did not receive any medical treatment for more than
one month. Smith began receiving treatment from Halsell Chiropractic in
Burleson, Texas, on June 24, 2019, when she went home for the summer. In
Texas, the chiropractor treated her for a whiplash injury, even though she
only complained of pain in her knees. She said the chiropractor in Texas
determined that she had a whiplash injury. Smith’s medical records were
admitted into evidence. 6 On cross-examination, Smith testified that she did not see the impact
and went to the birthday party after the accident. She said the accident did
not prevent her from keeping up with her daily activities. She worked in
retail at Macy’s while at home in Texas after the accident. Smith returned to
school at Grambling when the summer was over.
Terrell testified that she was driving her vehicle on the interstate at
around 10 p.m. when the accident occurred. She said an 18-wheeler from
the left lane merged into her lane. She followed the truck and blew her horn
until he stopped. She said the driver offered her $200, with the promise of
more money later, if she would not report the accident. Terrell said that
Smith called the police. On questioning from the court, Terrell stated that
the driver’s side front door and passenger door, as well as the rear tire on her
car, were damaged in the accident.
Later that night, after going to the birthday party, Terrell said she
experienced pain in her neck, shoulder, and lower back. She claimed she
went to an emergency room that night and was given two prescriptions for
pain medication. She did not furnish the records from the emergency room
visit or document the prescriptions. Like Smith, Terrell went to Dr. Rendina
on April 30, 2019. This appointment was also arranged by her attorney. Dr.
Rendina treated Terrell through October 2019. She felt her injuries had
improved. She stated that her injuries did not prevent her from carrying on
her daily activities. She graduated with a master’s degree in May 2020.
Terrell also sought treatment from a medical doctor at Willis-
Knighton in Shreveport. She saw a medical doctor there in May and August
2019, and in January and August 2020 for medical issues not connected with
the accident. Her medical records from Willis-Knighton reflected that she 7 denied having back or neck pain. She stated that she did not mention it
because she was already receiving treatment for those complaints from the
chiropractor.
Other than the testimony of the plaintiffs and the introduction of their
medical records and bills, no other proof of their claims was presented to the
trial court. No evidence was submitted to prove the identity of the driver of
the truck, which truck was involved in the accident, the ownership of the
truck, whether Gonzalez actually owned Keynnect, or whether the driver of
the truck was employed by that business. Even though Terrell and Smith
stated that, when the accident occurred, the police were called, they failed to
call the responding law enforcement officer to testify. They also did not
seek to introduce the accident report prepared by the police. While the
plaintiffs included in their petition the VIN and license plate number of the
truck they claim was involved in the accident, they did not provide proof at
trial that the truck driven by Gonzalez had that VIN and license plate
number. Regarding proof of any party or parties responsible for causing the
accident, the record contains only Smith’s testimony that they were
sideswiped by a “big, white 18-wheeler” and Terrell’s testimony that her car
was struck by an 18-wheeler.
Simply stated, there was not one scintilla of evidence that Gonzalez
was driving the truck that hit the plaintiffs, that the truck was owned by
Keynnect, or that Gonzalez was working for Keynnect at the time of the
accident. Given the utter lack of proof of the plaintiffs’ claims, the trial
court was not manifestly erroneous or clearly wrong in finding that the
plaintiffs failed to prove the elements of their claims by a preponderance of
the evidence and rendering judgment in favor of the defendants. 8 On appeal, Terrell and Smith offer various arguments to assert
entitlement to recovery in spite of their failure to prove their claims. They
urge that Gonzalez’s answer was not timely and, as a result, admitted all
allegations made in the plaintiffs’ petitions.3 This argument is without merit.
The plaintiffs filed suit on April 30, 2020, but did not request service of
citation on the defendants until October 2, 2020. Service was made on
Gonzalez on November 5, 2020, and on Keynnect on November 13, 2020.
Prior to filing their answer, the defendants filed an exception and motion for
involuntary dismissal under La. C.C.P. art. 1672, asserting that the plaintiffs
failed to request service of citation within 90 days of commencement of the
action, as required by La. C.C.P. art. 1201. The trial court denied the
exception and motion for involuntary dismissal. Under La. C.C.P. art. 1001,
when an exception is filed prior to answer and is overruled, the answer shall
be filed within 15 days of that judgment.4 The exception in this case was
overruled on December 2, 2020, and the defendants answered on December
3, 2020. The defendants’ answer was timely.
The plaintiffs argue that the defendants admitted the allegations of the
petition, and they judicially confessed liability. 5 According to the plaintiffs,
3 The plaintiffs cite La. C.C.P. art. 1004 in support of their argument. That provision has no application to the timeliness of the filing of an answer. 4 La. C.C.P. art. 1001(B) states:
When an exception is filed prior to answer and is overruled or referred to the merits, or is sustained and an amendment of the petition ordered, the answer shall be filed within fifteen days after the exception is overruled or referred to the merits, or fifteen days after service of the amended petition. 5 La. C.C. art. 1853 provides, in part:
A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it. 9 the “defendant, singular,” admitted that Gonzalez was driving defendant’s
vehicle and that he was driving a vehicle consistent with the type of vehicle
identified in the petition and testified to by both witnesses. This argument is
not supported by the record. The only “defendant, singular” that answered
the petition was New Alliance, the purported insurer that was actually an
insurance broker and was dismissed on summary judgment because it was
not the insurer of the defendants. There was never any allegation that the
truck was owned by New Alliance.
If the plaintiffs meant to refer to Keynnect, instead of New Alliance,
their argument still fails. Keynnect never admitted that it owned a vehicle
involved in this accident. In the answer, the defendants admitted that
Keynnect is a trucking business and Gonzalez was operating a 2011 truck.
They also admitted that Gonzalez was operating a 2011 Volvo tractor on
Interstate 20 in Ruston, Lincoln Parish. They did not admit that Gonzalez
owned Keynnect, that he was employed by the business, that the truck
involved in the accident was owned by Keynnect, that Gonzalez was
operating the truck on the date of the accident, or that the truck driven by
Gonzalez was involved in this accident. The answer denies those
allegations. Therefore, in the answer, the defendants did not admit or
judicially confess facts necessary to impose liability on them for this
accident.
The plaintiffs also assert that, in the defendants’ pretrial brief,
Gonzalez did not deny being involved in the accident, but denied negligence
or fault in causing it. This argument is not supported by the record. The
pretrial brief states:
10 [Terrell] claims that Rider Gonzalez was operating a vehicle for Keynnect Logistics and that he swerved into her lane and caused a collision. Gonzalez denied any negligence or fault in causing the accident.
In the conclusion of the pretrial brief, the defendants state:
Plaintiffs are not likely to be able to carry their burden of proving negligence or fault on the part of Rider Gonzalez or Keynnect Logistics causing the accident.
The defendants’ pretrial brief does not contain an admission or judicial
confession that they were involved in the accident.
The plaintiffs claim the present case is similar to Johnson v. Jim
Brownlee, Inc., 13 La. App. 86, 127 So. 127 (La. App. 2 Cir. 1930), which
dealt with whether the driver of a vehicle, owned by his employer, was
working for the employer at the time of an accident. The plaintiffs seem to
reason that they proved Gonzalez was operating a vehicle owned by
Keynnect and the burden of proof then shifted to Gonzalez to prove he was
not on a mission for Keynnect. They state that, under these circumstances,
the identity of the defendant was not at issue and the name of the person
involved in the accident was no longer pertinent or material. According to
the plaintiffs, dismissing the lawsuit for failure to identify the driver
involved in the accident is “tantamount to hiding the ball.” The plaintiffs’
argument is without merit. The defendants did not admit or judicially
confess that Keynnect owned the vehicle involved in the accident. The
plaintiffs failed to prove which truck was involved in the accident, who
owned it, and who was driving it. Without proof of any of these basic
elements of the plaintiffs’ claims, the case of Johnson v. Jim Brownlee, Inc.,
supra, is simply inapposite to the present case.
11 The plaintiffs maintain that the trial court should have assessed the
degree or percentage of fault among the parties involved, or to an unknown
third party, citing La. C.C. art. 2323 for the proposition that fault could have
been assessed to a third party. Here, the plaintiffs failed to establish that any
party was responsible for causing an accident. The trial court did not err in
failing to apportion fault.
The plaintiffs argue that, once valid identification of the vehicle
involved in the accident was made, it was not necessary for them to prove
that the owner of the vehicle was driving it at the time of the accident. They
claim there is a reasonable inference that the owner, or someone authorized
by him, was driving the vehicle at the time the accident occurred. Then, the
defendants were required to come forward with evidence to refute that
inference. They cite State Farm Mut. Auto. Ins. Co. v. Smith, 99-121 (La.
App. 5 Cir. 6/1/99), 738 So. 2d 131, in support of this argument.
Smith does not apply to this case. In Smith, a witness to the accident
wrote down the license plate number of the car that she saw rear-end the
plaintiff. Police determined that the vehicle belonged to the defendant, who
claimed that the car had been stolen, and neither he nor anyone authorized
by him was driving the car when the accident occurred. The trial court did
not believe the defendant’s testimony. As stated above, the plaintiffs here
simply failed to prove that the truck driven by Gonzalez was involved in the
accident. Without valid identification of the vehicle involved in the
accident, Smith has no application to the present case.
The plaintiffs assert that the doctrine of res ipsa loquitor should be
applied here. They do not explain their understanding of that rule, but
contend that, because the defendants admit driving a vehicle that falls in the 12 same category as that identified by the plaintiffs, res ipsa loquitor applies
and “fills in any perceived gap in the evidence.”
As explained in Linnear v. CenterPoint Energy Entex/Reliant Energy,
06-3030 (La. 9/5/07), 966 So. 2d 36, the doctrine of res ipsa loquitur applies
in cases where the plaintiff uses circumstantial evidence alone to prove
negligence by the defendant. The doctrine involves the simple matter of a
plaintiff’s using circumstantial evidence to meet the burden of proof by a
preponderance of the evidence and merely assists the plaintiff in presenting a
prima facie case of negligence when direct evidence is not available. It is
the lack of direct evidence indicating negligence on the part of the defendant
as the responsible human cause of the particular accident which actually
furnishes the occasion and necessity for invoking the rule in its strict and
distinctive sense. Res ipsa loquitur does not apply if there is sufficient direct
evidence explaining the occurrence and establishing the details of the
negligence charged. See Linnear, supra.
In this case, involving an alleged motor vehicle accident, the plaintiffs
could have presented direct evidence of their claims. They simply failed to
do so. Where all of the facts and circumstances of an accident are known,
the doctrine of res ipsa loquitor, and the resulting inference of negligence
drawn therefrom, are inapplicable. Palmer v. Turner, 252 So. 2d 700 (La.
App. 1 Cir. 1971).6
6 The jurisprudence contains numerous examples of motor vehicle accident cases in which the plaintiffs failed to carry their burden of proof. See Willis v. Manning, supra; Erwin v. State Farm Mut. Auto. Ins. Co., supra; Pusey v. Davison, 340 So. 2d 1073 (La. App. 1 Cir. 1976); Williams v. Travelers Ins. Co., 88 So. 2d 727 (La. App. 1 Cir. 1956); Rodriguez v. Cloud, 527 So. 2d 66 (La. App. 3 Cir. 1988); Bradley v. Safeway Ins. Co. of La., 2008-1188 (La. App. 4 Cir. 5/6/09), 17 So. 3d 1, writ denied, 09-1226 (La. 9/18/09), 17 So. 3d 968; Peters v. Warren, 2002-0592 (La. App. 4 Cir. 9/11/02), 828 So. 2d 67; Molinary v. Advance Paper Co., 321 So. 2d 815 (La. App. 4 Cir. 1975); Carpenter v. 13 After careful review of this record, the absence of any proof
whatsoever relating the defendants to this accident compels us to find that
the plaintiffs did not carry their burden of proof, and the trial court was not
manifestly erroneous or clearly wrong in dismissing the plaintiffs’ claims
against the defendants.7
CONCLUSION
For the reasons stated above, we affirm the trial court judgment
dismissing the claims of the plaintiffs, LaPorscha Terrell and Kalyn Smith,
against the defendants, Keynnect Logistics and Rider Gonzalez. All costs in
this court are assessed to the plaintiffs.
AFFIRMED.
Kernion, 304 So. 2d 868 (La. App. 4 Cir. 1974); Farrell v. Gulf Ins. Co., 96-941 (La. App. 5 Cir. 2/25/97), 690 So. 2d 217. 7 The defendants did not appeal or answer the appeal. However, they listed two “assignments of error” in their brief. They assert that the trial court erred in failing to dismiss the plaintiffs’ claims under La. C.C.P. art. 1672(C) because there was insufficient proof that the plaintiffs attempted service and citation within 90 days of filing suit. They also urge that the trial court erred in failing to dismiss the claims of Smith when she failed to appear in person for the trial, citing La. C.C.P. art. 1672. These issues are not properly before the court for review and have no bearing on the outcome of the case. Therefore, they are not addressed. See La. C.C.P. arts. 2121 and 2133.