Ober v. CUNA Mut. Soc.

645 So. 2d 231, 1994 WL 583332
CourtLouisiana Court of Appeal
DecidedOctober 26, 1994
Docket26208-CA
StatusPublished
Cited by7 cases

This text of 645 So. 2d 231 (Ober v. CUNA Mut. Soc.) 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
Ober v. CUNA Mut. Soc., 645 So. 2d 231, 1994 WL 583332 (La. Ct. App. 1994).

Opinion

645 So.2d 231 (1994)

William OBER and Rachael Ober, Plaintiff-Appellant,
v.
CUNA MUTUAL SOCIETY d/b/a Cuna Mutual Insurance Agency, Defendant-Appellee.

No. 26208-CA.

Court of Appeal of Louisiana, Second Circuit.

October 26, 1994.

*232 Madeleine M. Slaughter, Monroe, for appellant.

Theus, Grisham, Davis & Leigh by F. Williams Sartor, Jr., Monroe, for appellee.

Before MARVIN, C.J., and SEXTON and BROWN, JJ.

MARVIN, Chief Judge.

In this action on an accidental death and dismemberment insurance policy the policy beneficiaries, who are the parents of the insured-decedent, appeal a judgment applying the policy provision that the proceeds are not payable when "the loss to the insured person [is] caused by or resulting from ... operating a motor vehicle while intoxicated."

Appellants contend the trial court was clearly wrong in finding that the insured was driving his truck while he was intoxicated when the accident occurred and that his intoxication was a contributing cause of the accident. They additionally complain of the trial court's evidentiary rulings relating to blood alcohol tests and opinion evidence and assert that the insurance policy was ambiguous and should have been construed against the insurer, CUNA.

We find no merit in the assigned errors and affirm the judgment.

FACTS

The insured, Warren Ober, suffered fatal injuries in a single vehicle accident on U.S. Highway 49 near Gulfport, Mississippi, at about 4:00 p.m. on February 21, 1990. His truck left the road, hit several trees, and flipped over, throwing Ober and his passenger, Robert Leith, from the truck. Leith survived. The roadway was wet from an earlier rain. The only other witness of the accident was the driver of a vehicle that was following Ober's truck, who was noted on the accident report but did not testify at the trial.

Officer Danny Tackett of the Mississippi State Police investigated the accident and wrote an accident report. At a hospital emergency room in Gulfport, Officer Tackett directed that blood be drawn from the unconscious Ober for a routine blood-alcohol analysis because he found beer cans, some empty, some full, scattered around the truck at the accident scene. Nurse Jo Lynn Bourgeois drew two vials of blood, putting them in a blood-alcohol test kit. No blood was drawn *233 from Leith, who was conscious at the hospital. Ober died after the blood was drawn.

The accidental death and dismemberment policy written by CUNA named William and Rachael Ober as Ober's beneficiaries.

WAS OBER THE DRIVER?

Ober and Leith left Ouachita Parish about 10:00 a.m. on the day of the accident in Ober's truck, intending to drive to Florida to attend the wedding of Leith's brother. They bought and iced down two cases of beer before departing. The plan was to drive straight through, with Ober driving during the day and Leith driving at night.

Leith says he was sleeping while Ober drove. He further testified Ober had consumed "at least" two beers before the accident. The trial court specifically found Leith's testimony credible, notwithstanding the fact he was a two-time felony offender. Appellants argued below and here that Leith was driving Ober's truck.

Officer Tackett implicitly concluded Ober was the driver. Even if the information in Tackett's police report is deemed inadmissible hearsay, the trial court could have inferred that Tackett concluded Ober was the driver because Tackett requested the blood-alcohol test only of Ober's blood, not Leith's. A trial court's findings and inferences based on fact are entitled to great weight and will not be disturbed absent clear error. Rosell v. ESCO, 549 So.2d 840 (La.1989).

We cannot say the trial court was clearly wrong in finding Ober was the driver of the truck.

OBER'S INTOXICATION

Despite the factual finding that Ober was driving at the time of the accident, the appellants still would have prevailed unless Ober was intoxicated at the time of the accident. Officer Tackett requested a blood-alcohol analysis of Ober's blood. The trial court findings indicate the trial court concluded the blood was Ober's, it contained alcohol, and the amount of alcohol rose to the level of intoxication within the meaning of the policy exclusion.

A. IDENTITY OF THE BLOOD TESTED

The blood drawn from Ober was handled by seven people. Nurse Jo Lynn Bourgeois drew the blood and gave it to Officer Tackett. He took it to Betty Dedeaux, an evidence technician at the Gulfport crime lab, from where another evidence technician, Alison Smith, transported it to the Jackson crime lab. Smith gave the sample to her Jackson counterpart, Bonnie Arinder. Sam Howell, supervisor of toxicology at the Jackson lab, performed the blood-alcohol tests. The blood sample was still at the Jackson lab when Howell was deposed.

Each of the parties in the chain of custody, who testified by deposition, stated that he or she had no independent recollection, aside from the laboratory records, of the events surrounding the blood samples and the tests. We agree that these persons could not testify to what they did with the samples. LCE Art. 602. Each could testify, however, to standard operating procedures even without an independent recollection of how he or she handled the samples.

The routine practice of an organization, whether corroborated or not, and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of that organization on a particular occasion was in conformity with the routine practice. LCE Art. 406.

The records concerning the blood and the test kit that each of these witnesses used and discussed in his or her deposition testimony are admissible as a hearsay exception. Records concerning a matter about which a witness once had knowledge but now has insufficient recollection to testify fully and accurately, made or adopted by the witness when the matter was fresh in his or her memory and reflecting that knowledge correctly, are not excluded by the hearsay rule. LCE Art. 803(5). The implied consent form, the blood test kit including the writing on it and in it, the evidence submission form, the evidence transfer sheet, the entries in the forensic log, and the test results were properly before the court.

Every person in this chain of custody is employed in a respective occupation that is *234 responsible for blood-alcohol testing in the routine circumstances in this record. There is no reason for these persons to have an independent recollection of what they did with respect to their routine responsibilities. Each of the deponents had specific responsibilities within the chain of custody to record accurately and to handle samples carefully to ensure professional integrity. Absent any showing to the contrary, the court was entitled to treat these witnesses as having acted in accordance with their respective duties and their respective routines.

Officer Tackett asked for a routine blood-alcohol test on Ober, following standard procedure in an accident where the officer suspects the driver was intoxicated. Nurse Jo Lynn Bourgeois identified the writing on the implied consent form, the blood-alcohol test kit, and the gray-topped tubes on the vials of blood, each of which was secured or sealed with red evidence tape in the test kit. Bourgeois explained these writings indicate she drew blood from the patient identified as Warren Ober. She routinely identifies unconscious patients by their hospital identification bands that are routinely generated and attached to patients as they enter the emergency room.

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645 So. 2d 231, 1994 WL 583332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ober-v-cuna-mut-soc-lactapp-1994.