Malmay v. Sentry Ins. Co.

550 So. 2d 366, 1989 WL 116216
CourtLouisiana Court of Appeal
DecidedOctober 4, 1989
Docket86-878
StatusPublished
Cited by10 cases

This text of 550 So. 2d 366 (Malmay v. Sentry 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
Malmay v. Sentry Ins. Co., 550 So. 2d 366, 1989 WL 116216 (La. Ct. App. 1989).

Opinion

550 So.2d 366 (1989)

Marsha Jan Schoth MALMAY, Plaintiff-Appellee,
v.
SENTRY INSURANCE COMPANY, et al. (Robert LaCombe, Defendant-Appellant).

No. 86-878.

Court of Appeal of Louisiana, Third Circuit.

October 4, 1989.
Rehearing Denied November 7, 1989.

*367 A.J. Gregory, Natchitoches, for plaintiff-appellee.

Stafford, Stewart & Potter, Larry A. Stewart, Alexandria, for defendant-appellant.

Thomas O. Wells, Alexandria, for intervenor-appellee.

Before STOKER, DOUCET and YELVERTON, JJ.

YELVERTON, Judge.

After having been removed to the United States District Court, the main demand in this appeal has now been remanded to us for consideration.

Defendant, Robert LaCombe, appeals the district court judgment awarding damages for the wrongful death of Larry Malmay, Marsha Jan Malmay's husband and the father of their three children. Defendant presents six specifications of error. We will discuss the issue of liability first, then we will discuss the remaining five specifications in the order presented in defendant's brief.

I.

Liability

The accident occurred on June 7, 1985, on Louisiana Highway 120 near Zwolle, Louisiana. Robert LaCombe was driving his car accompanied by Chris McGraw, Ervin Cutright and Larry Malmay. LaCombe's car ran off the right shoulder of the road then skidded across the highway. The car rolled over and at some point Malmay and Cutright were ejected from the vehicle. Malmay was killed.

Malmay's survivors and the other two survivors filed separate suits which subsequently were consolidated. Sentry Insurance Company, the public liability insurer of LaCombe, deposited its policy limits in the Registry of the Court invoking a separate concursus proceeding. After the trial court granted a motion to sever, the Malmay case went to trial. Judgment was *368 rendered in favor of Jan Malmay, the surviving spouse, for $812,188.50; for the benefit of the minor Bridget Malmay judgment was rendered in the sum of $331,258.57; for the benefit of the minor Amber Malmay, in the sum of $536,133.97, and for the minor Marsha Malmay, in the sum of $269,795.95. In this judgment the liability of Sentry Insurance Company was limited to a pro rata portion, to be determined later, of its total deposit of $529,834 in the court registry in the concursus. It is from this judgment and these awards that LaCombe perfects his appeal.

It is assigned as error that the judge found the negligence of Robert LaCombe the sole and proximate cause of Malmay's death. Specifically, LaCombe argues that the only basis of his liability was his alleged excessive speed, and that the only evidence introduced to prove the excessive speed was hearsay testimony. This testimony consisted of statements made by LaCombe to the state trooper and to a witness named Lamar Veuleman.

State Trooper Lee Isgitt testified that LaCombe told him he was driving too fast and hit the curve too fast. Mr. Veuleman testified that LaCombe came back to the scene of the wreck on Sunday, and when asked how fast he was going LaCombe told him he was going 70 miles an hour. LaCombe did not testify at the trial.

The statements made by LaCombe to the state trooper and Veuleman were non-hearsay and were admissible. The statements are a party's admissions, now covered by La.C.E. art. 801(D)(2). See also Soverign Ins. Co. v. Texas Pipeline Co., 470 So.2d 969 (La.App. 1st Cir.1985), modified, 488 So.2d 982 (La.1986). The trial court did not commit error in admitting the statements into evidence.

Liability for the accident was proved.

II.

The Denial of a Continuance

The Malmay suit was filed one month after the accident, and the trial took place six months later. The defendant filed a motion for a continuance on January 6, 1986, and the motion was heard and denied on January 10, 1986, the scheduled trial date. On this appeal LaCombe urges that the trial court erred in denying a continuance for three reasons: (1) defendant was not given adequate time to complete discovery, (2) criminal proceedings were pending against LaCombe, and (3) defendant would be subjected to more than one excess judgment suit.

It is contended that the Malmays did not disclose the names of their two expert witnesses until five days before the trial, and that this allowed insufficient time to complete discovery and prepare an adequate defense.

La.C.C.P. art. 1601 provides that a continuance may be granted in any case if there is good ground therefor. It is well established in our jurisprudence that a trial judge has wide discretion in acting upon a motion for continuance. His ruling will not be disturbed on appeal in the absence of a clear showing of abuse of that discretion. Dubea v. State, Louisiana Department of Corrections, 465 So.2d 245 (La.App. 3d Cir. 1985). Weighed against the possibility of injustice, unfairness and inequity which might result from a premature trial, is the effect that a continuance might have on the administration of justice, including congested court dockets, and just as important, a defendant's corollary right to have serious charges against him judicially resolved within a reasonable time. Lambert v. Heirs of Adams, 325 So.2d 331 (La.App. 3d Cir.1975), writs refused, 329 So.2d 458 (La. 1976).

The original defendants were granted one motion for a continuance in November 1985. In answers to interrogatories mailed on January 2, 1986, plaintiffs named two expert witnesses, Ms. Barbara Anderson, a psychologist, who was to testify concerning the psychological problems of one of the minor children, Marsha Malmay, as a result of the death of her father, and Dr. Earl Thames, an expert in the field of economics, who was to testify as to the economic loss of the family of the deceased.

At trial LaCombe argued for a continuance based only on the late disclosure of *369 the expert Barbara Anderson. The trial court denied the motion for continuance but allowed defendant 30 days to obtain and submit rebuttal evidence of the psychologist's testimony. Although this testimony was not obtained until more than 30 days after the recess, the trial judge nevertheless accepted and considered the testimony. The defendant has not shown how he was prejudiced by the refusal of a second continuance based on the last minute disclosure of the name of this expert.

The second ground urged for a continuance was that criminal proceedings were pending against LaCombe stemming from the accident. It is argued that forcing LaCombe to go to trial in a civil case before the adjudication of the criminal case forced him to either risk self-incrimination in violation of his Fifth Amendment privilege or give up his defense in the civil case.

We have continuously recognized the conflict resulting from interrelated civil and criminal actions proceeding against the same defendant. A civil plaintiff's right to be compensated for his injuries without unreasonable delay provided for in the Louisiana Constitution must be weighed against the criminal defendant's rights under the Fifth Amendment. Notwithstanding the obvious complexities raised by this conflict, we have held that plaintiff's right to a civil remedy should prevail, and that the civil action need not await the finality of an interrelated criminal prosecution. Barbee v. Pigott, 398 So.2d 137 (La.App. 3d Cir.1981).

The defendant maintains that at most he needed a continuance of only two or three months but there is nothing in the record to indicate when the criminal case was to be concluded.

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Bluebook (online)
550 So. 2d 366, 1989 WL 116216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malmay-v-sentry-ins-co-lactapp-1989.