Terro v. Casualty Reciprocal Exchange

631 So. 2d 651, 1994 WL 28787
CourtLouisiana Court of Appeal
DecidedFebruary 2, 1994
Docket93-593
StatusPublished
Cited by18 cases

This text of 631 So. 2d 651 (Terro v. Casualty Reciprocal Exchange) 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
Terro v. Casualty Reciprocal Exchange, 631 So. 2d 651, 1994 WL 28787 (La. Ct. App. 1994).

Opinion

631 So.2d 651 (1994)

Carolyn S. TERRO, et vir., Plaintiffs-Appellants-Appellees,
v.
CASUALTY RECIPROCAL EXCHANGE, et al., Defendants-Appellees-Appellants.

No. 93-593.

Court of Appeal of Louisiana, Third Circuit.

February 2, 1994.

*652 Benjamin Wakefield Mount and Thomas John Gayle, Lake Charles, for Carolyn S. Terro, etc.

Frank M. Walker Jr., Lake Charles, for Cas. Reciprocal Exchange, et al.

Before DOUCET and KNOLL, JJ., and CULPEPPER[*], J. Pro Tem.

KNOLL, Judge.

This personal injury case involves a claim for damages which resulted when a truck made a left-hand turn and collided with an oncoming automobile before the turning vehicle cleared the opposing lane of traffic. The left turning vehicle was owned by Maintenance Enterprise, Inc. (MEI) and was driven by its employee, Michael Shortridge. The oncoming automobile was driven by Carolyn S. Terro (Mrs. Terro).

The jury found Shortridge, his employer, MEI, and their insurer, Casualty Reciprocal Exchange, Inc. (Casualty Reciprocal), 75% at fault and Mrs. Terro 25% at fault. The jury further made a quantum award to Mrs. Terro, totaling $199,800 and which was itemized as follows: for past pain and suffering, $25,000; for future pain and suffering, $25,000; for permanent scarring and disfigurement, $10,000; for permanent disability, $50,000; for loss of future earnings, $29,100; for medical expenses, $19,100; for future medical expenses, $12,500; and, for loss of wages as of the time of trial, $29,100. The jury denied the consortium claim of Mrs. Terro's husband, Danny Terro.

The Terros moved for JNOV on the jury's apportionment of fault and its quantum award. The trial court granted the motion for JNOV on the issue of the apportionment of fault and removed the jury's assessment of 25% fault to Mrs. Terro. The trial court denied the Terros' motion for JNOV on the issue of quantum.

The Terros appeal contending that the jury's assessment of quantum was abusively low. In their answer to the appeal, Casualty Reciprocal, MEI, and Shortridge contend that the trial court erred in its determination that Mrs. Terro was free from fault.

*653 FACTS

Mrs. Terro, thirty-three years of age, was employed as an oral surgeon's assistant. On October 25, 1990, she left work just before noon and was traveling eastbound on U.S. Highway 90 en route to her mother's home to pick up her four year old son. As Mrs. Terro approached a convenience store situated on the south side of the highway, Shortridge was proceeding westbound in a MEI pickup truck. In the vicinity of the convenience store, Shortridge signaled and suddenly made a left turn in front of Mrs. Terro's automobile. Mrs. Terro braked and veered toward the shoulder of the roadway in an attempt to avoid the accident; however, despite Mrs. Terro's evasive maneuver, the vehicles collided.

Mrs. Terro had multiple injuries, including a broken arm and right ankle, which required surgery and hospitalization. These injuries will be further detailed in the opinion in our discussion of quantum. As of the time of trial, Mrs. Terro had not returned to work and additional ankle surgery was being considered because of severe pain and arthritis associated with the ankle injury.

JNOV, STANDARD OF REVIEW

The procedural article which controls the trial court's use of JNOV is LSA-C.C.P. Art. 1811. Although the article does not specify the grounds on which a trial judge may grant a JNOV, the Louisiana Supreme Court restated the criteria for determining when a JNOV is properly granted in Anderson v. New Orleans Public Service, 583 So.2d 829 (La.1991), and further detailed the duty of an appellate court in reviewing the trial court's action on the motion for JNOV. The Louisiana Supreme Court stated at page 832:

"A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fairminded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. Scott [v. Hospital Service District No. 1, 496 So.2d 270], supra. In making this determination, the court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party.
In reviewing a JNOV, the appellate court must first determine if the trial court erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether to grant the motion or not, i.e., do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict? If the answer to that question is in the affirmative, then the trial judge was correct in granting the motion. If, however, reasonable men in the exercise of impartial judgment might reach a different conclusion, then it was error to grant the motion and the jury verdict should be reinstated."

In our review of the trial court's decision on the motion for JNOV, it is our duty to determine whether the trial court's findings were manifestly erroneous. Silliker v. St. Landry Police Jury, 520 So.2d 880 (La.App. 3rd Cir. 1987).

JNOV, APPORTIONMENT OF FAULT

Casualty Reciprocal, MEI, and Shortridge contend that the trial court erred in granting the Terros' motion for JNOV on the issue of apportionment of fault.

A left-turning motorist involved in a collision that occurs across the center line is burdened with the presumption that he is at fault, and must offer evidence to show that he is free from negligence to avoid the imposition of liability. Miller v. Leonard, 588 So.2d 79 (La.1991). Likewise, the jurisprudence has established that an oncoming driver has a right to assume that the left-turning motorist will obey the laws in allowing him to *654 continue in their proper lane of travel and will yield to his right-of-way. Jones v. Lingenfelder, 537 So.2d 1275 (La.App. 2nd Cir. 1989), writ denied, 539 So.2d 631 (La.1989). Against this backdrop, although Casualty Reciprocal, MEI, and Shortridge do not contest the determination that Shortridge was at fault, they argue that there was evidence of Mrs. Terro's excessive speed and inattentiveness on which the jury could have based its finding that she was 25% fault.

Under Louisiana's comparative fault system, a plaintiff's recovery is reduced by the degree or percentage of fault attributed to her by the trier of fact. LSA-C.C. Art. 2323. In the apportionment of fault, the trier of fact must consider both the nature of the conduct of each party at fault and the extent of the causal connection between the conduct and damages. A party who relies upon a comparative fault defense bears the burden of proving by a preponderance of the evidence that such negligence was a cause in fact of the accident. Rossitto v. Jinks, 576 So.2d 1115 (La.App. 3rd Cir.1991). Proof by direct or circumstantial evidence is sufficient to constitute a preponderance when the entirety of the evidence establishes the fact or causation sought to be proved is more probable than not. Miller, supra.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Williams v. Placid Oil Co.
224 So. 3d 1101 (Louisiana Court of Appeal, 2017)
Jimmy Williams, Sr. v. Placid Oil Company
Louisiana Court of Appeal, 2017
Baker v. State Farm Mutual Automobile Insurance Co.
162 So. 3d 405 (Louisiana Court of Appeal, 2015)
Willis v. Noble Drilling (US), Inc.
105 So. 3d 828 (Louisiana Court of Appeal, 2012)
Slagel v. Roberson
858 So. 2d 1288 (Louisiana Court of Appeal, 2003)
Woodbury v. DEPT. OF TRANSP. AND DEVELOPMENT
848 So. 2d 104 (Louisiana Court of Appeal, 2003)
McGrail v. Lee
814 So. 2d 729 (Louisiana Court of Appeal, 2002)
Joseph v. Broussard Rice Mill, Inc.
772 So. 2d 94 (Supreme Court of Louisiana, 2000)
Kose v. Cablevision of Shreveport
755 So. 2d 1039 (Louisiana Court of Appeal, 2000)
Holt v. Cannon Exp. Corp.
722 So. 2d 433 (Louisiana Court of Appeal, 1998)
Cormier v. McDonough
682 So. 2d 814 (Louisiana Court of Appeal, 1996)
Francois v. Holiday Inn, Inc.
678 So. 2d 55 (Louisiana Court of Appeal, 1996)
Whiddon v. Hutchinson
668 So. 2d 1368 (Louisiana Court of Appeal, 1996)
Branch v. City of Lafayette
663 So. 2d 216 (Louisiana Court of Appeal, 1995)
Dauzat v. Hartford Ins. Co. of the Midwest
657 So. 2d 188 (Louisiana Court of Appeal, 1995)
Lennard v. State Farm Mut. Auto. Ins. Co.
649 So. 2d 1114 (Louisiana Court of Appeal, 1995)
Andrus v. State Farm Mutual Automobile Insurance Co.
650 So. 2d 275 (Louisiana Court of Appeal, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
631 So. 2d 651, 1994 WL 28787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/terro-v-casualty-reciprocal-exchange-lactapp-1994.