Meshell v. Lovell

732 So. 2d 83, 1999 WL 142118
CourtLouisiana Court of Appeal
DecidedMarch 17, 1999
Docket98-1192
StatusPublished
Cited by4 cases

This text of 732 So. 2d 83 (Meshell v. Lovell) 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
Meshell v. Lovell, 732 So. 2d 83, 1999 WL 142118 (La. Ct. App. 1999).

Opinion

732 So.2d 83 (1999)

Sandra Sue MESHELL, Plaintiff-Appellant,
v.
Horace J. LOVELL, et al., Defendants-Appellees.

No. 98-1192.

Court of Appeal of Louisiana, Third Circuit.

March 17, 1999.
Writ Denied June 4, 1999.

*84 Otis Edwin Dunahoe, Jr., for Secondary Plaintiff Sandra Sue Meshell, et al.

Tracy L. Oakley, Ruston, for Defendant/Appellee Horace J. Lovell, et al.

Bradley John Gadel, for Defendant/Appellant Agricultural Ins. Co.

Earl Pitre, Jr., Baton Rouge, for Defendant/Appellee State of La., DOTD.

Raymond L. Brown, Jr., Alexandria, for Defendant/Appellee New Hampshire Ins. Co.

BEFORE: COOKS, SAUNDERS and GREMILLION, Judges.

COOKS, Judge.

This matter arises out of an accident that occurred on July 23, 1996, at the intersection of U.S. Highway 171 and Topsey Bell Road, just north of Lake Charles, Louisiana. Sandra Sue Meshell was operating an eighteen-wheeler truck owned by TransAmerican Waste Industries. Meshell was employed by TransAmerican to drive two loads of garbage each day from Lake Charles to Many, Louisiana. Meshell traveled to Lake Charles, picked up a load, and dropped the load at the dump in Many and was returning to Lake Charles to pick up her second load. She was traveling in a southerly direction on U.S. 171, approaching the intersection of Topsey Bell Road. U.S. 171 curves to the right as it nears Topsey Bell Road from the north. On this date, there was road construction ongoing in this area. According to Meshell, as she approached the intersection she noticed a red pickup truck pulling off from the side road in front of her. Meshell attempted to stop but was unable to do so before her vehicle collided with the truck operated by Horace J. Lovell.

Prior to the accident, Lovell was traveling in a westerly direction on Topsey Bell Road. According to Lovell, he stopped at the intersection of Topsey Bell Road and U.S. 171. Lovell told the investigating officer he looked north and south for traffic, did not see any, and proceeded to turn left onto U.S. 171 when the collision occurred. He testified, his vehicle's rate of speed was approximately 10 to 15 miles per hour when the accident occurred.

Lovell had liability insurance with Safeway Insurance Company on his pickup truck with limits of $10,000.00 per person and $20,000.00 per accident. Meshell had her truck insured by Agricultural Insurance Company, with limits of $1,000,000.00. At the time of the accident, Meshell was engaged in the course and scope of her employment with TransAmerican Waste. Subsequently, she received workers' compensation benefits.

As a result of the accident, Meshell suffered injuries to her right shoulder and neck. Initially, she was treated by Dr. Garland Miller, who referred her to Dr. Gordon Mead, an orthopaedic surgeon. After a period of conservative treatment, Dr. Mead concluded Meshell required surgery on her right shoulder to relieve an impingement. Dr. Mead also found Meshell *85 had a cervical strain superimposed upon a degenerative cervical disc disease.

Meshell filed suit for personal injuries against Horace J. Lovell and his liability insurer, Safeway Insurance Company. In addition, she named as defendants the State of Louisiana, through the Department of Transportation and Development (DOTD) and the uninsured motorist insurer for her employer's truck, Agricultural Insurance Company. New Hampshire Insurance Company intervened to recover workers' compensation benefits paid to the plaintiff. The matter was tried before a jury.

On the morning of the trial, a stipulation was entered into by all counsel of record agreeing that New Hampshire Insurance Company (the workers' compensation carrier of TransAmerican) paid medical expenses to or on behalf of Sandra Meshell in the amount of $36,617.82 and indemnity benefits in the amount of $20,935.00. The parties also stipulated, at the time of the accident, Meshell was acting within the course and scope of her employment. All matters were submitted to the jury, except New Hampshire Insurance Company's workers' compensation subrogation claims. The jury rendered a verdict finding Lovell 75% at fault in causing the accident and Meshell 25% at fault. The jury found DOTD was not at fault. The jury awarded the following damages totaling $136,206.23:

A. Pain, Suffering, Mental and Physical      $25,000.00
    Anguish
B. Past Medical Expenses                     $36,206.23
C. Past Lost Wages                           $32,000.00
D. Future Lost Wages and Earning             $18,000.00
     Capacity
E. Loss of Fringe Benefits                   $     0.00
F. Permanent Disability, Loss of             $25,000.00
     Enjoyment of Life

The jury also found the failure of Agricultural Insurance Company to make an unconditional UM tender to the plaintiff was reasonable. The trial judge, ruled on New Hampshire's claims and found it had no right of recovery against Agricultural. The trial judge requested the parties prepare a judgment in accordance with the jury's verdict and his ruling. After all counsel were unable to concur on the judgment's content, Agricultural and Meshell submitted separate judgments for the court's consideration. The court signed the judgment submitted by Meshell. Agricultural filed a motion to have the judgment amended in conformance with the law and the jury verdict. Meshell filed a Motion for Judgment Notwithstanding the Verdict, contending the damage award was inadequate or, alternatively, urging the trial court to grant it a new trial. All motions were denied by the trial court. Both Meshell and Agricultural Insurance Company appealed the jury's verdict. Meshell asserted the following assignments of error:

1. The jury was manifestly erroneous in allocating 25% fault to her in the occurrence of this accident.
2. The jury committed manifest error in its award of $18,000.00 for future lost wages.
3. The jury committed manifest error in awarding general damages for pain, suffering and anguish and loss of enjoyment of life to a total of $50,000.00.

Agricultural contends that the jury's verdict is supported by the evidence, but that the judgment signed by the court is incorrect as a matter of law.

ALLOCATION OF FAULT

An appellate court may not set aside a trial court's findings of fact in the absence of clear or manifest error. Lewis v. State, Through DOTD, 94-2370 (La.4/21/95), 654 So.2d 311; Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). To reverse a trial court's factual determinations, a court of appeal must find, based on the record, that no reasonable factual basis for the findings exists and that the findings are clearly wrong or manifestly erroneous. Mart v. Hill, 505 So.2d 1120 (La.1987). The issue which an appellate court should resolve is not whether the trier of fact was right or wrong, but whether the fact finder's *86 conclusion was a reasonable one. Lewis v. State, Through DOTD, supra; Stobart v. State, Through DOTD, supra.

The fact finder's choice between two conflicting permissible views of the evidence "cannot be" manifestly wrong. Stobart v. State, Through DOTD, supra. The duty of the fact finder is to evaluate the credibility when testimony is conflicting and to accept or reject any part of a witness' credibility. Welch v. Winn-Dixie Louisiana, Inc., 94-2331 (La.5/22/95), 655 So.2d 309.

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Cite This Page — Counsel Stack

Bluebook (online)
732 So. 2d 83, 1999 WL 142118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/meshell-v-lovell-lactapp-1999.