Sharbeno v. Allstate Insurance Co.

153 So. 3d 576, 14 La.App. 3 Cir. 670, 2014 La. App. LEXIS 2907, 2014 WL 6966439
CourtLouisiana Court of Appeal
DecidedDecember 10, 2014
DocketNo. 14-670
StatusPublished
Cited by2 cases

This text of 153 So. 3d 576 (Sharbeno v. Allstate Insurance 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
Sharbeno v. Allstate Insurance Co., 153 So. 3d 576, 14 La.App. 3 Cir. 670, 2014 La. App. LEXIS 2907, 2014 WL 6966439 (La. Ct. App. 2014).

Opinion

GENOVESE, Judge.

Bln this personal injury case involving an underinsured motorist (UM) claim, Defendant, Safeway Insurance Company of Louisiana (Safeway), appeals the judgment of the trial court in favor of Plaintiff, Brandy Sharbeno.1 For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The instant litigation arises out of a single-vehicle accident which occurred in the early morning hours of January 19, 2008, in Vernon Parish, Louisiana. Occupants in the vehicle at the time of the crash were Joseph W. Brittain, nineteen years of age, and Brandy Sharbeno, fourteen years of age. There is considerable dispute concerning the basic facts of the accident, particularly who was operating the vehicle. What is known is that Ms. Sharbeno and Mr. Brittain were occupants in a 1999 Chevrolet Camaro owned by Mr. Brittain when it crashed. Ms. Sharbeno was injured in the accident, and Mr. Brit-tain was killed.

Asserting that Mr. Brittain’s negligence was the cause of the accident and his minor daughter’s resulting injuries, Mark Sharbeno, individually, and on behalf of his minor daughter, Brandy, filed suit against Allstate Insurance Company, Mr. Brit-tain’s automobile liability insurance carrier; Safeway, his UM insurance carrier; Misty Brittain; and John Thomas Brittain, as administrator of the estate of his minor child, Kimberly Brittain.2 In its answer, Safeway alleged that RMs. Sharbeno was the driver of the Camaro at the time of the accident and was not entitled to recover under Safeway’s UM policy.3

After a bench trial and taking the matter under advisement, the trial court issued Written Reasons for Judgment rejecting Safeway’s allegations and ruled in favor of Ms. Sharbeno. The trial court labeled Safeway’s evidence “circumstantial” and “suspect”; whereas, it found Ms. Sharbeno’s “testimony that she was a guest passenger in the vehicle at the time of the accident to be credible.” After the signing of a formal judgment in favor of Ms. Sharbeno, Safeway perfected a sus-pensive appeal.

ASSIGNMENTS OF ERROR

On appeal, Safeway presents the following assignments of error:

1. The trial court committed manifest error when it failed to accept the uncontradicted testimony of an expert in accident reconstruction where there was no sound reason for rejecting the testimony and when the testimony was corroborated by other, objective evidence.
2. The trial court committed manifest error when it accepted as credible the testimony of [Ms. Sharbeno] when her testimony was directly [578]*578contradicted by other, objective evidence.

LAW AND DISCUSSION

Whether Ms. Sharbeno was the driver of the Camaro at the time of the accident is a factual determination requiring the application of the manifest error standard of review. In Purvis v. Grant Parish School Board, 13-1424, p. 4 (La.2/14/14), 144 So.3d 922, 926, our supreme court set forth the applicable appellate standard of review as follows:

In Stobart v. State, through DOTD, 617 So.2d 880 (La.1993), this court set forth a two-part test for the reversal of the fact-finder’s determinations:
|31) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).
This test dictates that a reviewing court must do more than simply review the record for some evidence that may controvert the trial court ruling. Rather, it requires a review of the entire record to determine whether manifest error has occurred. Thus, the issue before the court of appeal is not whether the trier of fact was right or wrong, but whether the fact-finder’s conclusion was a reasonable one. London Towne Condominium Homeowner’s Association v. London Towne Company, 06-401 (La.10/17/06), 939 So.2d 1227. Where the fact-finder’s determination is based on its decision to credit the testimony of one or more witnesses, that finding can 'virtually never be manifestly erroneous. Rosell v. ESCO, 549 So.2d 840 (La.1989).

In the instant case, the trial court was faced with staunchly conflicting testimony in its effort to determine who was driving the vehicle when the accident occurred. The testimony of the sole survivor, whose personal injury claim is at issue, was juxtaposed against the evidence presented by Safeway in its denial of recovery under its UM policy.

Safeway argues that the trial court manifestly erred “when it rejected the uncon-tradicted, objectively-supported testimony of an expert in accident reconstruction and accepted the objectively contradicted testimony of [Ms. Sharbeno].” Countering, Ms. Sharbeno argues that the trial court was correct in “finding that the [sensing diagnostic module (SDM) ] data was suspect, and in rejecting Trooper [Clay] Cedar’s opinion based on that data”; thus, a reasonable factual basis exists for its judgment in her favor.

The vehicle which crashed was a 1999 Chevrolet Camaro with a manual shift transmission'. At the time of the accident, Ms. Sharbeno was fourteen years of age and did not possess a driver’s license. Ms. Sharbeno testified that she had |4driven a vehicle before — a few times with her father in his truck and once, briefly, with Mr. Brittain in his truck.4 Ms. Sharbeno denied that she ever drove Mr. Brittain’s Camaro. She claimed that at that time, she did not even know how to drive a vehicle with a manual shift transmission.

In recounting the details of the accident, Ms. Sharbeno stated that she was seated in the passenger’s seat and that neither she nor Mr. Brittain were wearing a seat-belt. She remembered the weather being [579]*579cold with a misting rain. Mr. Brittain drove through a curve then shifted the vehicle into a lower gear in an attempt to make the car sway, or fishtail. However, she described that Mr. Brittain lost control when the ear “kept coming back and forth and then we went off the road[.]” Ms. Sharbeno testified that the vehicle flipped and came to rest upside down. She crawled out of the vehicle and found that Mr. Brittain had been ejected and was pinned beneath the vehicle. She was transported to the hospital via ambulance with injuries to her head, hip, and thigh. Mr. Brittain succumbed to his injuries at the scene of the accident. Ms. Sharbeno’s written statement, dated January 28, 2008, also reported that Mr. Brittain was driving and that neither was wearing a seatbelt.

Safeway offered the testimony of Trooper Clay Cedars of the Louisiana State Police Crash Reconstruction Unit as an expert5 in accident reconstruction to refute Ms. Sharbeno’s testimony. Trooper Cedars was the lead reconstructionist assigned to investigate this accident. He did not go to the accident scene the night that it actually occurred; however, he did review the responding officer’s synopsis |5of what occurred prior to his investigation. Trooper Cedars testified that initially, he had no suspicion that Mr. Brittain was not driving.

He described that his investigation included visiting the crash site, inspecting the Camaro, reviewing the data from the vehicle’s SDM, also known as the black box, and interviewing Ms. Sharbeno.

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Bluebook (online)
153 So. 3d 576, 14 La.App. 3 Cir. 670, 2014 La. App. LEXIS 2907, 2014 WL 6966439, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sharbeno-v-allstate-insurance-co-lactapp-2014.