Lino v. Allstate Insurance Co.

937 So. 2d 888, 2006 La.App. 4 Cir. 0166, 2006 La. App. LEXIS 1930, 2006 WL 2521572
CourtLouisiana Court of Appeal
DecidedAugust 2, 2006
DocketNo. 2006-CA-0166
StatusPublished
Cited by3 cases

This text of 937 So. 2d 888 (Lino v. Allstate Insurance 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
Lino v. Allstate Insurance Co., 937 So. 2d 888, 2006 La.App. 4 Cir. 0166, 2006 La. App. LEXIS 1930, 2006 WL 2521572 (La. Ct. App. 2006).

Opinion

TERRI F. LOVE, Judge.

11 This appeal arises from a personal injury action. The judgment of the trial court granted general and special damages in favor of plaintiff, Carmen Lino, and against the defendants, Elizabeth Yatsu Athmann and Allstate Insurance Company. The defendants appeal.1 For reasons ascribed below, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

At approximately 10:00 p.m. on August 27, 2002, Carmen Lino (“Ms. Lino”) was [890]*890operating her 1996 Kia automobile in an easterly direction on Airline Highway at its entrance with I — 10. Ms. Lino was traveling on the upslope of Airline Highway before it turns into Tulane Avenue. As she proceeded up the overpass, the lights on her vehicle began to dim and the vehicle shut down. Ms. Lino attempted to restart the vehicle for approximately twenty minutes. She also attempted to call her friend, Mario, who installed a new battery in the vehicle the day before. Ms. Lino did not call 911 or any other emergency assistance. Ms. Lino was unable to turn on the vehicle’s lights or emergency flashers because of the electrical problem. Ms. Lino testified that while she was stalled, many vehicles passed her or went around her without incident.

| aAfter attempting to restart the vehicle, Ms. Lino exited the vehicle and raised the hood. Ms. Lino was standing to the passenger side of her vehicle when a 1997 Toyota Avalon, driven by Elizabeth Yatsu Athmann (“Ms.Athmann”), struck Ms. Lino’s vehicle from the rear. Ms. Lino’s testimony does not indicate the length of time she remained outside of the vehicle before the impact occurred.

Ms. Athmann was traveling east on Airline Highway. Just prior to the accident, Ms. Athmann stopped at a red traffic signal. When the signal turned green, she proceeded straight ahead with the intention of going up the overpass toward Tulane Avenue. Ms. Athmann testified that she was in the same lane as Ms. Lino’s vehicle, which was stalled three to four car lengths ahead. Ms. Athmann explained that she did not see Ms. Lino’s vehicle until it was in front of her. She stated that she tried to brake, swerved to the left, and hit the back corner of Ms. Lino’s vehicle. At that point, she saw Ms. Lino being thrown to the ground. Ms. Athmann further testified she did not notice that the hood was up on Ms. Lino’s vehicle until after the impact. Ms. Athmann confirmed that Ms. Lino’s vehicle did not have lights or emergency flashers. Contrary to Ms. Lino’s statement that the accident scene was well lit, Ms. Athmann testified that some of the streetlights in the area of the accident were dark.

An ambulance transported Ms. Lino from the scene to Charity Hospital. Ms. Lino sustained a fractured elbow and soft tissue injuries.

Ms. Lino filed suit against Ms. Athmann and her insurer, Allstate Insurance Company (“Allstate”), seeking recovery for her personal injuries and property damage.2 Ms. Athmann and Ms. Lino testified. The trial court rendered a judgment in favor of Ms. Lino and against Ms. Athmann and Allstate. The trial |scourt assessed 90% fault to Ms. Athmann and 10% fault to Ms. Lino. Ms. Lino was awarded general damages in the amount of $40,000, property damage in the amount of $2,949.49, and medical expenses totaling $6,616.25, less 10% for Ms. Lino’s contributory negligence.

Ms. Athmann and Allstate appeal the judgment of the trial court, assigning two errors. First, they assert the trial court erred in assessing only 10% fault to Ms. Lino. Second, they contend the trial court erred in awarding $40,000 in general damages to Ms. Lino. The award for medical expenses and property damage is not at issue in this appeal.3

ALLOCATION OF FAULT

As with other factual determinations, the trier of fact is vested with much [891]*891discretion in allocating fault. Foley v. Entergy La., Inc., 04-1967, p. 3 (La.App. 4 Cir. 2/15/06), 925 So.2d 638, 641. An adjustment in an apportionment of fault will only be made if it is “clearly wrong,” and only “to the extent of lowering or raising it to the highest or lowest point respectively which is reasonably within the trial court’s discretion.” Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607, 611.

This Court described the very wide latitude afforded the fact finder in allocating comparative fault in Riley v. Reliance Ins. Co., 97-0445 (La.App. 4 Cir. 11/19/97), 703 So.2d 158, 163:

Thus, Clement tells us that the allocation of fault is not an exact science, or the search for one precise ratio. Rather, it is an acceptable range and any allocation by the jury within that range cannot be “clearly wrong.” In Clement, the Supreme Court held that any allocation of fault falling between a ratio of 50/50 and 75/25 would be reasonable. [ /Phis very broad range is illustrative of the analogy referred to in the passage quoted above from Clement, comparing fault and quantum determinations. Mindful that in quantum determinations, Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994), affords the factfinder “great, even vast” discretion, the Clement analogy mandates this Court to afford considerable latitude to the trial court in matters of fault allocation.

In comparing the relative fault of the parties, several factors are considered, including: “(1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought.” Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La.1985).

In written reasons for judgment in the case sub judice, the trial court stated:

In the instant case, Ms. Lino never abandoned her vehicle. Further, she attempted to start her vehicle for approximately 20 minutes without success. She then got out of her car and was attempting to signal oncoming drivers by lifting her hood at the time of the collision. Finally, Ms. Lino was unable to turn on her flashers because the electrical system was totally out due to battery failure.
Ms. Lino also testified that she attempted to phone the mechanic who repaired her car the day before, but was unsuccessful. The only other measure that Ms. Lino could have possibly taken would have been to move to the rear of her car and signal oncoming motorists away from her stalled vehicle.
The Court finds that her actions described above were the actions of a reasonably prudent person in her situation.
The court finds Ms. Lino’s account to be more credible, and after reviewing the evidence and appropriate jurisprudence, especially the principles articulated in Doyle v. McKinney, et al, 732 So.2d 128, the Court finds that Ms. Lino’s fault is to be assessed at 10%.

|BOn appeal, Ms. Athmann and Allstate argue that Ms. Lino should have been found 100%> at fault for violating La. R.S. 32:141, which provides, in part:

A.

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937 So. 2d 888, 2006 La.App. 4 Cir. 0166, 2006 La. App. LEXIS 1930, 2006 WL 2521572, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lino-v-allstate-insurance-co-lactapp-2006.