Menard v. Federated Mut. Ins. Co.

906 So. 2d 746, 2005 WL 1458282
CourtLouisiana Court of Appeal
DecidedJune 22, 2005
Docket2005-85
StatusPublished
Cited by8 cases

This text of 906 So. 2d 746 (Menard v. Federated Mut. 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
Menard v. Federated Mut. Ins. Co., 906 So. 2d 746, 2005 WL 1458282 (La. Ct. App. 2005).

Opinion

906 So.2d 746 (2005)

Elridge MENARD and Pauline Menard
v.
FEDERATED MUTUAL INSURANCE CO., et al.

No. 2005-85.

Court of Appeal of Louisiana, Third Circuit.

June 22, 2005.

*748 Barney R. Aucoin, Lafayette, LA, for Intervenor Appellee — Louisiana Farm Bureau Casualty Ins. Co.

Steven Claude Judice, Keogh, Cox & Wilson, Ltd., Baton Rouge, LA, for Defendants/Appellees — Federated Mutual Insurance Co. and Joseph Curtis Aguillard.

Donald Dale Landry, Gerald DeLaunay, Perrin, Landry, DeLaunay, Dartez & Ouellet, Lafayette, LA, for Plaintiffs/Appellants — Elridge Menard and Pauline Menard.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and J. DAVID PAINTER, Judges.

THIBODEAUX, Chief Judge.

In this car accident case, Elridge and Pauline Menard appeal an adverse judgment pursuant to a jury verdict apportioning fault equally between Mr. Menard and the driver of the following vehicle who hit their car. They also appeal the jury's decision not to award any damages. Because we find that the tortfeasor, Joseph Aguillard, did not overcome the statutory presumption that the driver of the following vehicle is liable for such a collision, we hold him completely responsible for the accident. Additionally, Mr. and Mrs. Menard produced sufficient evidence showing that although the accident did not cause any new injuries, it aggravated pre-existing injuries. A tortfeasor is responsible for injuries caused by his negligence, even if the extent of the injury is an aggravation of a pre-existing injury or condition. Thus, the Menards are entitled to an award of damages and their past medical expenses. We award $50,000.00 in general damages and $42,476.95 in past medical expenses to Mr. Menard and $40,000.00 in general damages and $42,061.06 in past medical expenses to Mrs. Menard. We decline to award future medical expenses as these were too speculative in nature and because the accident aggravated pre-existing injuries and did not cause new injuries.

I.

ISSUE

We must determine whether the jury erred when it apportioned fault for the car accident equally to both Mr. Menard and Mr. Aguillard. We must also consider whether the jury abused its discretion when it declined to award any damages at all for aggravation of the Menards' pre-existing injuries.

II.

FACTS

On April 17, 2001, Elridge Menard drove his wife, Pauline Menard, to the gym. As he waited to make a left turn into the parking lot, he was rear-ended by a van driven by Joseph Aguillard. Mr. Menard later testified that he waited about seven minutes before leaving the car after the accident. Mr. Aguillard, however, testified that Mr. Menard got out of his car right away and began taking photographs of the damage. Mr. Menard also stated that he immediately felt dizzy after the accident. He was taken to the hospital by ambulance. The EMT who attended to Mr. Menard testified that the hospital instructed him to start an IV because Mr. Menard's blood pressure was elevated.

A jury found that negligence on the part of both Mr. Menard and Mr. Aguillard caused the accident, and thus apportioned fifty percent fault to each. The jury also found that neither Mr. nor Mrs. Menard sustained any damages in the accident. The Menards now appeal the jury's verdict, arguing that Mr. Aguillard should be *749 responsible for one hundred percent of the fault, and also that they are entitled to damages for their pain and injuries resulting from the accident.

III.

LAW AND DISCUSSION

Liability of Mr. Menard and Mr. Aguillard

Mr. Menard testified that both his turn signal and brake lights were working. He said he was stopped for approximately three to four minutes while waiting to make the left turn into the gym parking lot. In his deposition of July 2002, however, he stated he had been waiting for only twenty-five to thirty seconds before impact. When confronted with this contradiction at trial, Mr. Menard stated that both estimations were only approximate times, but he reiterated that he was at a full stop.

Mr. Aguillard testified that, as he was driving behind Mr. Menard, he heard a rattling sound in his car and looked down to see what it was. He admitted he looked away from the roadway for "a couple of seconds." He admitted that before he looked down, he saw brake lights on Mr. Menard's car, but did not recall that Mr. Menard's turn signal was on. He could not say whether, upon looking back at the road, Mr. Menard's turn signal was on, nor could he say whether the car was at a complete stop, although he again acknowledged seeing brake lights.

Officer Kirkwood, who arrived at the accident scene, testified that the weather was clear that day. According to his report, Mr. Aguillard told Officer Kirkwood that Mr. Menard's car had come to a sudden stop, so that it was too late to avoid impact once Mr. Aguillard looked back at the road. Mr. Aguillard also told Officer Kirkwood that Mr. Menard's car did not have a left turn signal on. Officer Kirkwood inspected both cars, but he did not check to see if the signal lights or brake lights were working on the Menard car. Although he did not issue any citations to either Mr. Menard or Mr. Aguillard, Officer Kirkwood's report concluded that the primary cause of the accident was careless operation by Mr. Aguillard.

Louisiana Revised Statutes 32:81(A) requires that "[t]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway." Thus, a following motorist involved in a rear-end collision is presumed to have breached this statutory duty. Mart v. Hill, 505 So.2d 1120 (La.1987). A following motorist may, however, rebut the presumption by demonstrating that he or she had his car under control, closely observed the preceding vehicle, and followed at a safe distance under the circumstances, or by proving that the driver of the lead car negligently created a hazard which the following motorist could not reasonably avoid. McCullin v. U.S. Agencies Cas. Ins. Co., 34,661 (La.App. 2 Cir. 5/9/01), 786 So.2d 269. The following motorist bears the burden of showing he was not negligent. Wheelis v. CGU Ins., 35,230 (La.App. 2 Cir. 12/7/01), 803 So.2d 365.

The allocation of fault is a factual determination subject to the manifest error rule. Spiller v. Ekberg, 00-130 (La.App. 5 Cir. 5/17/00), 762 So.2d 226. Where there is conflicting testimony, reasonable evaluations of credibility and fact will not be disturbed on review, even though the appellate court believes its own assessments are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989). The appellate court must determine not whether the *750 factfinder was right or wrong, but whether its conclusion was reasonable. Stobart v. State, Through DOTD, 617 So.2d 880 (La. 1993). When two equally rational views of the evidence exist, the factfinder's choice of one cannot be manifestly erroneous or clearly wrong. Id.

In this case, however, Mr. Aguillard admitted he turned his attention away from the roadway, however briefly. He also admitted he saw at least Mr. Menard's brake lights before he looked away, although there was some dispute as to whether the left turn signal was on. Furthermore, Mr. Menard had been waiting to make the left turn for at least twenty-five to thirty seconds, by his more conservative estimate, before the collision. There was no evidence of any obstructions in the roadway, and the weather was clear.

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Bluebook (online)
906 So. 2d 746, 2005 WL 1458282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/menard-v-federated-mut-ins-co-lactapp-2005.