Neal v. Highlands Ins. Co.

610 So. 2d 177, 1992 La. App. LEXIS 3802, 1992 WL 364368
CourtLouisiana Court of Appeal
DecidedDecember 9, 1992
Docket91-1344
StatusPublished
Cited by13 cases

This text of 610 So. 2d 177 (Neal v. Highlands 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
Neal v. Highlands Ins. Co., 610 So. 2d 177, 1992 La. App. LEXIS 3802, 1992 WL 364368 (La. Ct. App. 1992).

Opinion

610 So.2d 177 (1992)

Merlene NEAL and Morris Neal, Plaintiffs-Appellees,
v.
HIGHLANDS INSURANCE COMPANY, et al., Defendants-Appellants.

No. 91-1344.

Court of Appeal of Louisiana, Third Circuit.

December 9, 1992.
Writ Denied February 11, 1993.

*178 Jack F. Owens, Jr., Harrisonburg, for plaintiffs-appellees.

Howard B. Gist, III, Alexandria, for defendants-appellants.

Before DOMENGEAUX, C.J., and KNOLL and SAUNDERS, JJ.

KNOLL, Judge.

This appeal concerns the propriety of a judgment notwithstanding the verdict (JNOV) which apportioned fault in an automobile collision that occurred when a vehicle attempted to pass a left-turning vehicle.

Highlands Insurance Company (Highlands) and its insured, Stephen B. Newman (Newman), the driver of the passing vehicle, appeal the trial court's grant of a motion for JNOV filed by Merlene Neal, the driver of the left-turning vehicle. After the jury returned a verdict, finding Neal totally at fault in this automobile accident, the trial court granted Neal's motion for JNOV, assessed fault 60% to Neal and 40% to Newman. It then awarded damages to Neal in the amount of $23,341.64. In accordance with LSA-C.C.P. Art. 1811(C)(2), the trial court alternatively granted Neal's motion for new trial should the JNOV be reversed on appeal.

Newman and Highlands appeal, contending that: (1) the trial court erred in granting the JNOV; and, alternatively, (2) the trial court was manifestly erroneous in its allocation of fault and its assessment of damages. We affirm.

FACTS

Neal was driving her automobile north on Louisiana Highway 124, the main highway between Jonesville and Harrisonburg. La. 124 is straight and has a posted speed limit of 55 miles per hour in the area. At the time of the accident, Neal testified that she was driving slowly with intentions of turning left into a private driveway, because she had forgotten to purchase something at the grocery store and had to return to Jonesville to make the purchase.

Shortly before the accident, Newman and his family were traveling from south Louisiana en route to their home town in Winnsboro. Newman stated that he first saw the Neal vehicle when he and his family were stopped at a roadside park just north of Jonesville. Following the Neal vehicle was a pickup truck later identified as belonging to Bud Ricks. After Neal and Ricks passed Newman at the roadside park, Newman testified that he entered the highway traveling north in the same direction as Neal and Ricks, headed toward Harrisonburg.

Approximately one-half mile north of Jonesville, the Ricks' pickup truck passed the Neal vehicle. As Newman, who was traveling at approximately forty to forty-five miles per hour, approached the rear of the slow moving Neal vehicle, he began to pass the Neal vehicle. Just as Newman began his passing maneuver, the Neal vehicle executed a left-hand turn into a private driveway. At this point, the Newman vehicle collided with Neal's automobile, striking it on the left rear quarter panel.

JUDGMENT NOTWITHSTANDING THE VERDICT

Highlands and Newman contend that the trial court improperly granted Neal's motion for JNOV. They argue that reasonable men and women could have reached a decision consistent with the jury verdict. They further argue that the trial court made credibility determinations in its assessment of the evidence which are not *179 permitted when considering the appropriateness of a motion for JNOV.

In Hutchinson v. Wal-Mart, Inc., 573 So.2d 1148, 1151 (La.App. 1st Cir.1990), the appellate court stated:

"A trial court may grant a JNOV only when the evidence points so strongly and overwhelmingly in favor of the moving party that reasonable men could not reach a contrary verdict. If there is substantial evidence opposed to the motion: i.e. evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion must be denied. In considering a motion for JNOV, the trial court must construe all evidence and reasonable inferences to be made therefrom in favor of the party opposing the motion. Further, the trial court may not weigh the evidence, pass on credibility of witnesses or substitute its own judgment for that of the jury. Basically, a JNOV can be granted by a trial court only when a jury's verdict is one which reasonable men could not have rendered. The standard to be applied by appellate courts in reviewing the grant of a JNOV is whether the trial court's findings in rendering the JNOV were manifestly erroneous." (Citations omitted.)

In ruling on Neal's motion for JNOV in the present case, the trial court stated:

"I'm going to find liability of the trailing vehicle [Newman] here. I think that there was some responsibility of that vehicle, first to keep a lookout for a slow moving vehicle [Neal's automobile], and further, there is the—this is in considering there is no blinker—assuming that there is no blinker.
* * * * * *
I think the Jury disregarded the ... clear responsibility of the trailing vehicle to keep a sharp lookout, and when making a passing maneuver to do more than—especially in that situation to sound the horn or do something that would ... execute a blinker, pass cautiously, and I don't think that happened here."

Contrary to defendants' assertions, the trial court's oral reasons make it clear that it did not make credibility determinations regarding the issue of whether Neal activated her turn signal. The trial court, viewing the evidence in a light which favored Highlands and Newman, analyzed the evidence on the assumption that Neal did not signal her left-hand turn. Having eliminated this preliminary procedural problem, we now focus our attention on the trial court's determination that the jury disregarded the duty of Newman, the overtaking and passing motorist.

Louisiana jurisprudence confirms the statutory law by holding that both the left-turning motorist and the overtaking and passing motorist must exercise a high degree of care because they are engaged in dangerous maneuvers. Cormier v. Habetz, 542 So.2d 814 (La.App. 3rd Cir.1989).

Summarizing the law applicable to the drivers herein, our brethren of the First Circuit stated in Walton v. Bellard, 581 So.2d 307, 310 (La.App. 1st Cir.1991), writ denied, 585 So.2d 567 (La.1991):

"The law sets forth the duties imposed on a left turning driver as well as a passing driver. The duties imposed upon the plaintiff, a left turning motorist, are found in La.R.S. 32:104. The plaintiff was required to give a signal of her intent to make a left turn at least 100 feet before reaching the private driveway. In addition to giving the proper signal, the plaintiff is required to make a proper observation that the turn can be made without endangering a passing vehicle. Bamburg v. Nelson, 313 So.2d 872, 875 (La.App. 2nd Cir.), writ denied, 318 So.2d 57 (La.1975). The plaintiff's failure to meet these duties does not automatically absolve the defendant from liability.
The law equally imposes a duty upon the passing motorist. This duty is specifically set forth in La.R.S. 32:73 and 75. A passing driver is not automatically required to sound his horn when executing a passing maneuver. The statute simply mandates that the passing driver sound his horn when the circumstances dictate *180 that it is reasonably necessary for safe execution of a passing maneuver.

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Bluebook (online)
610 So. 2d 177, 1992 La. App. LEXIS 3802, 1992 WL 364368, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neal-v-highlands-ins-co-lactapp-1992.