Louisiana Farm Bureau Mut. Ins. Co. v. Regal Ins. Co.

809 So. 2d 1280, 1 La.App. 3 Cir. 1446, 2002 La. App. LEXIS 576, 2002 WL 356348
CourtLouisiana Court of Appeal
DecidedMarch 6, 2002
Docket01-1446
StatusPublished
Cited by5 cases

This text of 809 So. 2d 1280 (Louisiana Farm Bureau Mut. Ins. Co. v. Regal 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
Louisiana Farm Bureau Mut. Ins. Co. v. Regal Ins. Co., 809 So. 2d 1280, 1 La.App. 3 Cir. 1446, 2002 La. App. LEXIS 576, 2002 WL 356348 (La. Ct. App. 2002).

Opinion

809 So.2d 1280 (2002)

LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY
v.
REGAL INSURANCE COMPANY, et al.

No. 01-1446.

Court of Appeal of Louisiana, Third Circuit.

March 6, 2002.

*1281 Barney R. Aucoin, Attorney at Law, Lafayette, LA, for Plaintiff/Appellee Louisiana Farm Bureau Mutual Insurance Company.

John W. Penny, Jr., Penny & Hardy, Lafayette, LA, for Defendants/Appellants Regal Insurance Company [plaintiff in reconvention].

Court composed of SYLVIA R. COOKS, MARC T. AMY, and GLENN B. GREMILLION, Judges.

COOKS, Judge.

The appellant, Regal Insurance Company (Regal), appeals the trial court's final judgment in favor of the plaintiff, Louisiana *1282 Farm Bureau Mutual Insurance Company (LFBM), in this personal injury accident case. The judgment was in the amount of $3,874.21, plus $200.00 for the amount of the deductible, along with interest from October 5, 2000. The court further dismissed Regal's and Carlis McLinden's reconventional demand. We affirm.

FACTS

On October 15, 1999, while driving on Highway 94, a two lane highway in Breaux Bridge, Louisiana, the vehicles of Joyce Cormier[1] (insured with Regal), and Michael Fitzgerald (insured with LFBM) collided.

Cormier was pulling a 15 foot long flatbed trailer. Fitzgerald drove behind Cormier and the trailer. Cormier attempted to make a right turn from La. 94 into a driveway leading to her residence. As she approached the driveway, she swung her vehicle wide, entering the left turn only designated lane. Cormier testifies her right turn signal was activated as she made the maneuver. Fitzgerald testifies the turn signal was not activated. As Cormier's vehicle entered the left turning lane, Fitzgerald testifies he continued to travel straight. As he pulled along side of Cormier's vehicle, then in the left turning lane, Cormier began making a right turn forcing him to hit his brakes and swerve to the right of her vehicle in order to avoid a collision. His attempt was unsuccessful.

DISCUSSION

Standard of Review

Allocation of fault by the trial court is entirely a factual determination and is reviewed under the clearly wrong manifest error standard of review. Lee v. Missouri Pac. R.R. Co., 540 So.2d 287 (La.1989). A trial court is granted great and vast discretion in making fault allocation determinations. Courts reviewing cases involving allocation of fault should view the record as a whole through a lens of deference to the trial court and jury. Vigh v. State Farm Fire & Cas. Ins. Co., 97 0381 (La.App. 4 Cir. 11/19/97); 706 So.2d 480.

It is well-settled that the trial court's findings of fact may not be set aside on appeal in the absence of manifest error or unless clearly wrong. Leal v. Dubois, 00-1285 (La.10/13/00); 769 So.2d 1182; Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than those of the fact-finder, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). An appellate court should not substitute its opinion for the conclusions made by the trial court, which is in a unique position to see and hear the witnesses as they testify. In re A.J.F. Applying for Private Adoption, 00-0948 (La.6/30/00), 764 So.2d 47. The trier of fact is not disadvantaged by the review of a cold record and is in a superior position to observe the nuances of demeanor evidence not revealed in a record. Leal, 769 So.2d 1182; Adkins v. Huckabay, 99-3605 (La.2/25/00); 755 So.2d 206.

Law and Argument

Regal contends the trial court erred in determining Ms. Cormier was 100% at *1283 fault when Fitzgerald collided into her vehicle. We disagree.

The law imposes a duty of great care on a motorist following a preceding motorist. Nesbit v. Travelers Ins. Co., 218 So.2d 396 (La.App. 2 Cir.1969). An exception, however, is recognized when the driver of the preceding or lead vehicle negligently creates a hazard which the driver of the following vehicle cannot reasonably avoid. Id.

A motorist making a right turn has a statutory duty under La.R.S. 32:101 to establish that both the approach for the turn and the turn itself "shall be made as close as practicable to the right-hand curb or edge of the road way." Nesbit, 218 So.2d at 398. Motorist "intending to turn... right at an intersection, or into an alley or driveway, shall approach the point of turning ... nearest the right-hand edge or curb of the road way." Id. at 398. A motorist shall not turn a vehicle right at an intersection or into an alley or driveway until such movement can be made with reasonable safety. Id. Regulations governing motorists making right turns are prescribed under La.R.S. 32:101 and La. R.S. 32:104. La.R.S. 32:101 provides, in part, as follows:

A. The driver of a vehicle intending to turn at an intersection shall proceed as follows:
(1) Right turns. Both the approach for a right turn and a right turn shall be made as close as practicable to the right-hand curb or edge of the roadway....

La.R.S. 32:104 provides as follows:

A. No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in R.S. 32:101, or turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety. (Emphasis added).
B. Whenever a person intends to make a right or left turn which will take his vehicle from the highway it is then traveling, he shall give a signal of such intention in the manner described hereafter and such signal shall be given continuously during not less than the last one hundred (100) feet traveled by the vehicle before turning.
C. No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear when there is opportunity to give such signal....

When a following motorist is suddenly confronted with an unanticipated hazard created by the preceding vehicle and the following motorist encounters an ensuing collision he or she could not reasonably avoid, the following driver should be found free from fault. Evans v. Olinde, 609 So.2d 299 (La.App. 3 Cir.1992).

In support of its contention the trial court erred in its allocation of fault, Regal cites three Second Circuit Court of Appeal cases where, it contends, the plaintiffs were found liable for contributory negligence.

First Regal cites McCullin v. U.S. Agencies Cas. Ins. Co., 34,661 (La.App. 2 Cir. 5/9/01); 786 So.2d 269. The court in McCullin found the driver of a Ford Explorer, the defendant, was following the driver of a pickup truck, the plaintiff, on a *1284 two-lane highway. The plaintiff came to a stop at an intersection and stated she accidently engaged her vehicle's left turn signal even though she intended to turn right. Id. Plaintiff testified when she attempted to make her turn, she saw in her rearview mirror defendant's vehicle approaching on the shoulder.

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Bluebook (online)
809 So. 2d 1280, 1 La.App. 3 Cir. 1446, 2002 La. App. LEXIS 576, 2002 WL 356348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/louisiana-farm-bureau-mut-ins-co-v-regal-ins-co-lactapp-2002.