Vidrine v. Government Employees Ins. Co.

528 So. 2d 765, 1988 La. App. LEXIS 1472, 1988 WL 63569
CourtLouisiana Court of Appeal
DecidedJune 22, 1988
Docket87-550
StatusPublished
Cited by19 cases

This text of 528 So. 2d 765 (Vidrine v. Government Employees 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
Vidrine v. Government Employees Ins. Co., 528 So. 2d 765, 1988 La. App. LEXIS 1472, 1988 WL 63569 (La. Ct. App. 1988).

Opinion

528 So.2d 765 (1988)

Dominic VIDRINE, et ux, Plaintiffs-Appellants,
v.
GOVERNMENT EMPLOYEES INSURANCE COMPANY, et al., Defendants-Appellees.

No. 87-550.

Court of Appeal of Louisiana, Third Circuit.

June 22, 1988.

Furher & Flournoy, George A. Flournoy, Alexandria, for plaintiffs-appellants.

Voohies & Labbe, Gregory K. Moroux, Lafayette, Brinkhaus, Falgoust & Dauzat, Jimmy L. Dauzat, Opelousas, for defendants-appellees.

Before DOUCET, YELVERTON and KNOLL, JJ.

KNOLL, Judge.

Dominic Vidrine, his wife, Linda Vidrine, and their minor child, Carmen, appeal the *766 jury verdict in their tort claim for damages against David June, his insurer, Government Employees Insurance Company (GEICO), and the Vidrines' uninsured/underinsured motorist carrier, Louisiana Farm Bureau Casualty Insurance Company (Farm Bureau), for damages they sustained when David June struck the Vidrines' automobile head-on in the Vidrines' lane of travel. The jury: (1) apportioned fault 60% to David June, and 40% to Linda Vidrine; (2) awarded Linda Vidrine $25,500 in general damages, $8,478.82 in medical expenses, and lost earnings of $3,303.68; (3) awarded Carmen $678.20 in damages; and, (4) made no award to Dominic Vidrine for loss of consortium.

The Vidrines contend that the jury: (1) committed manifest error in finding Linda Vidrine 40% at fault; (2) erred by reducing the damage award to Linda Vidrine by 40% because the jury charges and the jury verdict form were confusing and insufficient; and, (3) abused its discretion in its award of damages to Linda and Carmen Vidrine, and in failing to award Dominic Vidrine damages for loss of consortium. We reverse to delete the 40% fault attributed to Linda Vidrine, and increase the damages awarded to her and Carmen.

FACTS

This case arises from a vehicular accident that occurred on Louisiana Highway 29 near Ville Platte within minutes after sunset on February 28, 1985. At that time Linda Vidrine was driving her white 1984 Ford LTD north on the highway with her daughter, Carmen, who was eight years of age. David June was driving his 1967 Pontiac Firebird south on the same highway on his way home from work.

The accident occurred near a no passing zone when David June attempted to pass a slow traveling pickup truck driven by Paul Santoro. David June pulled into the northbound lane, began his passing maneuver, and as he pulled even with the Santoro vehicle, he suddenly saw Linda Vidrine's vehicle. David June testified that he slowed down in an attempt to return to his lane of travel behind the Santoro truck, but was unsuccessful. David June's vehicle hit the Vidrine vehicle head-on in Linda Vidrine's lane of travel.

APPORTIONMENT OF FAULT

Linda Vidrine contends that the jury erred in finding her 40% at fault in causing the accident. She argues that on the basis of Simon v. Ford Motor Company, 282 So.2d 126 (La.1973), when a driver on the wrong side of the road collides with another vehicle which is in its correct lane of traffic, the driver on the wrong side of the road is required to exculpate himself of any fault, however slight, contributing to the accident. GEICO and Farm Bureau argue that Linda Vidrine was contributorily negligent because she was driving at or after sunset without her headlights on, and it was too dark for David June to see the Vidrine vehicle as he attempted to pass Santoro.

Simon is inapposite to the question presented. The query Simon addressed was what degree of fault on the part of the driver who leaves his lane of the highway may exculpate him from liability to a blameless person proceeding properly in the opposite lane. In response the Louisiana Supreme Court held that such a motorist must exculpate himself from any fault whatsoever to avoid liability. We do not disagree with that holding. However, in the case sub judice we are not presented with any attempt by David June to avoid liability for the accident. Rather, the question squarely placed before the jury was apportionment of fault, and it is this finding that we are called upon to review, i.e., whether the jury was clearly wrong in its assessment of 40% fault to Linda Vidrine.

The standard of appellate review is well settled in the jurisprudence of Louisiana: The factual conclusions of the trier of fact are entitled to great weight and should not be disturbed by the reviewing court unless clearly erroneous. If there is conflict in the testimony, reasonable inferences of credibility and reasonable inferences of fact should not be disturbed even though the appellate court may feel that its own evaluations and inferences are as reasonable. *767 Bray v. Isbell, 458 So.2d 594 (La. App. 3rd Cir.1984), writ denied, 462 So.2d 210 (La.1985). The rationale for this well settled principle is based not only upon the trial court's better capacity to evaluate live witnesses, but also upon the proper allocation of trial and appellate functions between the respective courts. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss. LSA-C.C. Art. 2323. In the allocation of comparative fault, the trial court must consider both the nature and conduct of each party at fault and the extent of causal relationship between the conduct and the damages. Attales v. Shelter Mut. Ins. Co., 488 So.2d 474 (La.App. 3rd Cir. 1986).

Defendants' case against Linda Vidrine was that she was driving after sunset without her headlights on, and it was too dark for David June to see her automobile. Contributory fault is never presumed but, as any other fact, must be proved by a preponderance of the evidence. Smith v. Travelers Ins. Co., 430 So.2d 55 (La.1983); Tirante v. Gulf States Utilities Co., 412 So.2d 128 (La.App. 1st Cir.1982), writ denied, 414 So.2d 389 (La.1982). Accordingly, defendants had to prove that more probably than not Linda Vidrine did not have her headlights on, and that her failure to have her headlights on was the cause in fact of the accident.

The record is clear that defendants proved that sunset on the day of the accident in the Lafayette area was at 6:05 p.m. Furthermore, the record preponderates that the accident happened within minutes after sunset, if not at sunset, because the ambulance logged the call for medical assistance at 6:14 p.m.

The first hurdle defendants faced was proof that it was so dark that the failure to illuminate the headlights was the cause in fact of the accident. Paul Santoro testified that the accident took place when it was just getting dark, that a driver did not need headlights to see clearly, and that he was able to see Linda Vidrine's white car as it approached. Linda Vidrine testified that at the time of the accident it was not so dark that she could not see clearly; furthermore, her testimony was unrefuted that prior to impact she could see that David June's automobile was red. She does not recall whether she had illuminated her headlights.

David June testified that he was on his way home from work, had exited a curve and found himself following the slow traveling Santoro pickup truck. He stayed behind Santoro through the no passing zone near Highway 29 and an intersecting state road to the west, and eased out around Santoro; then, looking carefully down the straight away and not seeing oncoming traffic, he started his passing maneuver.

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528 So. 2d 765, 1988 La. App. LEXIS 1472, 1988 WL 63569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vidrine-v-government-employees-ins-co-lactapp-1988.