Metra Barraka, Et Vir. v. Joann Bowie

• Court: Louisiana Court of Appeal
• Decided: November 10, 2004
• Docket: CA-0004-0738
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

04-0738

METRA BARRAKA, ET VIR

VERSUS

JOANN BOWIE, ET AL.

************

APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES, NO. 210,457, HONORABLE W. ROSS FOOTE, DISTRICT JUDGE

JIMMIE C. PETERS JUDGE

Court composed of Jimmie C. Peters, Michael G. Sullivan, and John B. Scofield,* Judges.

AFFIRMED.

Malcolm X. Larvadain Attorney at Law 626 Eighth Street Alexandria, LA 71301 (318) 445-3533 COUNSEL FOR PLAINTIFFS/APPELLANTS: Metra Barraka, et vir

Keith M. Borne Borne & Wilkes, L.L.P. 200 West Congress, Suite 1000 Post Office Box 4305

* John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as judge pro tempore. Lafayette, LA 70502-4305 (337) 232-1604 COUNSEL FOR DEFENDANTS/APPELLEES: Joann Bowie, et al. PETERS, J.

Omatu and Metra Barraka, husband and wife, appeal a judgment of involuntary

dismissal with prejudice of their suit against Joann Bowie and her automobile liability

insurer, Safeway Insurance Company of Louisiana (Safeway). For the following

reasons, we affirm the trial court judgment in all respects.

DISCUSSION OF THE RECORD

This litigation arises from a May 30, 2002 automobile accident which occurred

in Alexandria, Rapides Parish, Louisiana. A vehicle driven by Mrs. Barraka was

struck from the rear by a vehicle owned by Ms. Bowie and driven by John F.

Simmons. The Bowie vehicle was insured for liability purposes by Safeway. The

Barrakas brought suit against Ms. Bowie and Safeway to recover the property

damages and medical expenses they sustained, as well as Mrs. Barraka’s personal

injury damages and Mr. Barraka’s loss of consortium damages.

The plaintiffs alleged in their petition that Mr. Simmons was “an unlicensed

minor and inexperienced driver” and that Ms. Bowie had given him permission to

operate her vehicle. However, while asserting that Mr. Simmons negligently struck

Mrs. Barraka’s vehicle, the plaintiffs did not bring suit against Mr. Simmons or his

legal representative (assuming he was a minor). Instead, the plaintiffs asserted that

Ms. Bowie and Safeway were liable for their damages because Mr. Simmons “was on

a mission for [Ms. Bowie], or in the alternative, [Ms. Bowie] negligently entrusted

her vehicle to [Mr.] Simmons” and because Safeway was the liability insurer of Ms.

Bowie.

In their answer to the petition, Safeway and Ms. Bowie denied that Ms. Bowie

had given permission to Mr. Simmons to operate the vehicle and asserted that Mr.

Simmons was operating the vehicle “without [Ms. Bowie’s] knowledge and/or consent.” However, the defendants went further in their answer, asserting that the

Safeway insurance policy provided no coverage for Mr. Simmons in the accident, an

issue not raised by the plaintiffs in their pleadings.

As the trial on the merits began, the litigants stipulated that, as a result of the

accident, the plaintiffs sustained $473.60 in property damages and $944.99 in medical

expenses. In support of their claims, the plaintiffs then introduced medical reports

and a copy of Safeway’s insurance policy and offered their testimony as well as that

of two other witnesses.

Concerning the permission issue, Mrs. Barraka testified that soon after the

accident, Ms. Bowie arrived at the accident scene and informed her that she had

insurance to cover the accident. Mr. Barraka, who also arrived at the scene soon after

the accident, overheard Ms. Bowie’s comment concerning insurance as well.

Additionally, Jermaine Morris, a seventeen-year-old high school student and a

passenger in the Bowie vehicle at the time of the accident, testified that he had ridden

with Mr. Simmons in Ms. Bowie’s vehicle in the past and that Ms. Bowie had been

aware of Mr. Simmons’ use of the vehicle. The final witness, Deeleen Morris, who

is the mother of Jermaine Morris, testified that she had seen her son and Mr. Simmons

in Ms. Bowie’s vehicle on numerous occasions and that she had conversed with Ms.

Bowie concerning Mr. Simmons using the vehicle.

The plaintiffs presented no evidence to establish that Mr. Simmons was an

inexperienced driver. In fact, Mr. Morris testified that, at all times, he considered Mr.

Simmons to be a safe driver.

The remaining evidence presented by the plaintiffs addressed the particulars

of the accident and the extent of their damages. Upon the completion of the

2 plaintiffs’ case, the defendants moved for an involuntary dismissal pursuant to

La.Code Civ.P. art. 1672(B), which motion the trial court granted. In granting the

motion, the trial court found that the plaintiffs had failed to establish by a

preponderance of the evidence that Mr. Simmons was either on a mission for Ms.

Bowie or that she had negligently entrusted the vehicle to him. Thus, the trial court

concluded that the plaintiffs failed to establish either independent negligence or

vicarious liability on Ms. Bowie’s part. Noting that Safeway’s status as a defendant

arose only as the insurer of Ms. Bowie, the trial court dismissed Safeway as well. The

plaintiffs then perfected this appeal.

OPINION

The procedure for an involuntary dismissal is set fourth in La.Code Civ.P. art.

1672. If the matter is tried as a bench trial, the defendant may move for a dismissal

of the plaintiff’s action at the close of the plaintiff’s case based “on the ground that

upon the facts and law, the plaintiff has shown no right to relief.” La.Code Civ.P.

art.1672(B). At that point, the trial court may either render judgment or decline to

render judgment until the close of all of the evidence. Id. The trial court is required

to weigh and evaluate all of the evidence presented by the plaintiff and to grant the

dismissal if the plaintiff has failed to prove his claim by a preponderance of the

evidence. Guillory v. Int’l Harvester Co., 99-593 (La.App. 3 Cir. 10/13/99), 745

So.2d 733, writ denied, 99-3237 (La. 1/14/00), 753 So.2d 220. “The grant of an

involuntary dismissal is subject to the manifest error standard of review.” Kite v.

Carter, 03-378, p. 5 (La.App. 3 Cir. 10/1/03), 856 So.2d 1271, 1274.

We find no manifest error in the trial court’s conclusion that the plaintiffs

failed to establish by a preponderance of the evidence either that Mr. Simmons was

3 on a mission for Ms. Bowie or that she negligently entrusted her vehicle to him. We

also agree that the plaintiffs neither pleaded nor proved a basis for establishing any

other form of vicarious liability on the part of Ms. Bowie. Therefore, we find no error

in the trial court’s dismissal of Ms. Bowie as a party defendant at the close of the

plaintiffs’ case.

Concomitantly, we reach the same conclusion regarding Safeway. Although

the trial court did not reach the permission issue, our examination of the record causes

us to conclude that the plaintiffs established by a preponderance of the evidence that

Mr. Simmons was driving with Ms. Bowie’s permission. That being the case, Mr.

Simmons was unquestionably an omnibus insured under the Safeway policy.

However, for whatever reason, the plaintiffs did not sue Mr. Simmons or his legal

representative. Therefore, Safeway was not sued in its capacity as the omnibus

insurer of Mr. Simmons. The only issue before the trial court was whether Ms. Bowie

was at fault. Thus, the resulting judgment finding no fault on Ms. Bowie’s part had

the effect of releasing Safeway from liability as well.

DISPOSITION

For these reasons, we affirm the judgment of involuntary dismissal with

prejudice as to both Joann Bowie and Safeway Insurance Company of Louisiana. We

assess all costs of this appeal to Omatu and Metra Barraka.