Leday v. Safeway Ins. Co. of La.

888 So. 2d 1084, 4 La.App. 3 Cir. 610, 2004 La. App. LEXIS 2759, 2004 WL 2599983
CourtLouisiana Court of Appeal
DecidedNovember 17, 2004
Docket04-610
StatusPublished
Cited by14 cases

This text of 888 So. 2d 1084 (Leday v. Safeway Ins. Co. of La.) 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
Leday v. Safeway Ins. Co. of La., 888 So. 2d 1084, 4 La.App. 3 Cir. 610, 2004 La. App. LEXIS 2759, 2004 WL 2599983 (La. Ct. App. 2004).

Opinion

888 So.2d 1084 (2004)

Leslie LEDAY
v.
SAFEWAY INS. CO. OF LA., et al.

No. 04-610.

Court of Appeal of Louisiana, Third Circuit.

November 17, 2004.

*1085 Donald Lynn Mayeux, Eunice, LA, for Plaintiff/Appellee — Leslie Leday.

Melissa Faye Doise, Borne & Wilkes, L.L.P., Lafayette, LA, for Defendant/Appellant — Safeway Insurance Company of Louisiana.

Court composed of ULYSSES GENE THIBODEAUX, C.J., GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.

THIBODEAUX, Chief Judge.

In this personal injury case involving an underinsured motorist claim, appellant, Safeway Insurance Company (Safeway), asserts that the trial court should have granted its Motion for Involuntary Dismissal *1086 following the close of plaintiff's case. Safeway argues that plaintiff, Leslie Leday, did not carry her burden of proving that the underlying insurance company had paid her to the fullest extent of its policy limits, thereby requiring Safeway to pay the balance of her damages under the Uninsured/Underinsured Motorist (UM) provision in her policy with Safeway. We reverse the trial court's decision not to dismiss the claim.

I.

ISSUES

Safeway's appeal sets forth three issues for our review. First, Safeway argues that the trial court erred in denying its Motion for Involuntary Dismissal based on its assertion that Leslie Leday failed to prove adequately the tortfeasor's uninsured or underinsured status. Second, Safeway asserts that the trial court abused its discretion in awarding Leday $10,000.00 in general damages, maintaining that her injuries did not warrant this additional award. Third, Safeway requests credit for the $1,000.00 payment it made to Leday for medical expenses.

Additionally, Safeway filed a Motion to Strike certain documents appended by Leday to her appellate brief.

II.

FACTS

Leday was in a car accident on December 17, 2001. Ricky Savant, driving a car that belonged to Wayne Meyer and insured by Imperial Fire and Casualty Insurance Company (Imperial), struck Leday's car, injuring her. She settled with Imperial and released the car's owner and driver. Leday then sued her insurance provider, Safeway, for excess damages. Leday argued that Imperial, the car owner's liability insurer, had paid its full policy limits to her; thus, she was entitled to further damages under the UM portion of her policy with Safeway because her damages exceeded the amount paid under Imperial's policy limits. Safeway paid Leday $1,000.00 under the medical payments clause of her policy, but denied that it was obligated to pay anything more than what Leday had already received through Imperial.

In the meantime, Leday had visited a doctor nine times between December 21, 2001 and September 16, 2002, incurring medical expenses in the amount of $2,776.76. Her doctor diagnosed various injuries and prescribed several medications and therapeutic treatments, including physical therapy. She was fitted with and continues to wear a wrist brace. Although her original doctor placed a cast on her right wrist to treat a compression fracture, her orthopedist did not believe she had suffered an actual fracture of her wrist. Regardless of the difference of opinion between the two doctors regarding the existence of a fracture, Safeway conceded in court that the treatment would have been identical for both injuries. Leday testified at trial that she still suffers pain, frequent headaches, and difficulties with her right shoulder and wrist, and that her impaired mobility restricts her ability to perform everyday tasks, including caring for her young daughter, driving, and cleaning. Leday is employed as a bus driver, and she testified that the injury made it difficult for her to perform her job.

At trial, Safeway argued that Leday had proved neither the tortfeasor's uninsured or underinsured status. She offered no evidence that the Imperial policy held by the car's owner was capped at $10,000.00, and no evidence that there was no other source of insurance available to pay her claim, either through additional insurance held by the car owner, or insurance held *1087 by the tortfeasor. Safeway moved for an involuntary dismissal of Leday's claim based on inadequate evidence of UM status. The trial judge, however, awarded Leday $10,000.00, in effect denying Safeway's motion for involuntary dismissal. Safeway now appeals, arguing that the trial judge should have granted its motion.

III.

LAW AND DISCUSSION

Proof of Uninsured or Underinsured Status of the Tortfeasor

The trial court's judgment did not address Safeway's Motion for Involuntary Dismissal, but simply awarded damages to Leday. The failure to address an issue in a judgment is deemed to be a denial of that issue. Gremillion v. Rapides Parish Police Jury, 430 So.2d 1362 (La.App. 3 Cir.1983); Anthony's Auto Sales, Inc. v. Shephard, 600 So.2d 125 (La.App. 2 Cir.1992). Thus, the trial court's refusal to address Safeway's motion is deemed to be a denial of that motion. The denial in this case was reversible error. We grant Safeway's Motion for Involuntary Dismissal, and hold that Leday did not fulfill her evidentiary burden of showing underinsured status.

Safeway argues that the trial court erred in denying the motion for involuntary dismissal brought at trial. Safeway's position is that Leday failed to prove the tortfeasor's UM status, and thereby failed to fulfill her burden of proof under La.R.S. 22:680.

Under La.Code Civ.P. art. 1672, which governs involuntary dismissal, the standard for granting such a dismissal is whether the plaintiff has presented sufficient evidence to establish her claim by a preponderance of the evidence. Vig v. City of Shreveport, 28,530 (La.App. 2 Cir. 8/21/96), 679 So.2d 524, writ denied, 96-2285 (La.11/15/96), 682 So.2d 775. Proof by a preponderance of the evidence means that "all evidence, direct and circumstantial, taken as a whole must show that the causation or fact sought to be proved is more probable than not." Rosen v. State, 01-0499, p. 14-15 (La.App. 4 Cir. 1/30/02), 809 So.2d 498, 509, writ denied, 02-0605 (La.5/10/02), 815 So.2d 842; Thompson Packers, Inc. v. Downey, 01-2550 (La.App. 1 Cir. 11/8/02), 835 So.2d 774. The trial court's decision on the motion should not be disturbed on appeal absent manifest error or unless clearly wrong. Taylor v. Tommie's Gaming, 38,568 (La.App. 2 Cir. 6/25/04), 878 So.2d 853; Smoke One Records Corp. v. Boutit, Inc., 03-637 (La.App. 5 Cir. 10/28/03), 860 So.2d 269; Delapaz v. Monem, 01-1234 (La.App. 5 Cir. 2/26/02), 811 So.2d 1062, writ denied, 02-0913 (La.5/31/02), 817 So.2d 100. Thus, on appeal, we must assess not whether the trial court's decision is right or wrong, but whether it is "reasonable in light of the record reviewed in its entirety." Davies v. Johnson Controls, Inc., 36,498, p. 7 (La.App. 2 Cir. 10/23/02), 830 So.2d 462, 466, writ denied, 02-2855 (La.1/31/03), 836 So.2d 70; Green v. Benson & Gold Chevrolet, 01-1161 (La.App. 5 Cir. 2/26/02), 811 So.2d 970, writ denied, 02-0891 (La.5/31/02), 817 So.2d 96.

Louisiana Revised Statutes 22:680(6) provides different means of showing the uninsured or underinsured status of a motorist. The statute does not suggest, however, that the methods provided are the exclusive means of showing that the motorist lacked insurance or sufficient insurance.

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Bluebook (online)
888 So. 2d 1084, 4 La.App. 3 Cir. 610, 2004 La. App. LEXIS 2759, 2004 WL 2599983, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leday-v-safeway-ins-co-of-la-lactapp-2004.