Walker v. Miller's Group Insurance Co.

487 So. 2d 689, 1986 La. App. LEXIS 6664
CourtLouisiana Court of Appeal
DecidedApril 14, 1986
DocketNos. 85-CA-694, 85-CA-695
StatusPublished

This text of 487 So. 2d 689 (Walker v. Miller's Group 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
Walker v. Miller's Group Insurance Co., 487 So. 2d 689, 1986 La. App. LEXIS 6664 (La. Ct. App. 1986).

Opinion

BOWES, Judge.

Defendants, Miller’s Group Insurance Company, Joseph Legendre and Shirley L. Legendre, appeal a judgment of the district court finding Mrs. Legendre 30% at fault in an automobile-motorcycle collision and casting defendants in judgment for $28,345.68, plus interest and their pro rata share of court costs; Ms. Walker, as defendant in reconvention, was held liable for $945.70, plus interest, 70% of the Legendre’s property damage.

On February 11, 1981, plaintiff, Theresa Walker was operating a 1977 Yamaha motorcycle, owned by plaintiff, L.J. Marie, Jr., in a southerly direction on Central Avenue in Westwego, Louisiana. Shirley Legendre, wife of Joseph A. Legendre, was driving the family’s 1976 Ford Sedan in a westerly direction on U.S. Highway 90B (the Westbank Expressway). The two vehicles collided in the left-hand lane, adjacent to the median, at the intersection of U.S. 90B and Central Avenue, on the westbound side of the expressway.

Appellants assign the following two issues as error:

1. The trial court was in error in finding that defendant Shirley Legendre was negligent, especially to the extent of thirty per cent (30%), as there was no evidence presented at trial which established that she acted negligently.
2. The trial court was in error in finding that defendant Shirley Legendre was negligent, especially to the extent of thirty per cent (30%), as such a finding is inconsistent with the trial court’s stated findings as to how the accident occurred.

As we see it, the issue of defendants’ liability centers on the following major questions: (1) The location of the Legendre’s vehicle moments before the accident; (2) the speed of that vehicle, and (3) the location of the plaintiff’s motorcycle at the time of the accident.

At trial, Mrs. Legendre testified that she was traveling at 30 to 35 miles per hour just before the accident. On the other hand, Lisa Bocage, an independent eyewitness, testified: “It [the Legendre auto] was traveling, I think, at kind of a high rate of speed for that time of the afternoon ... ”, and Don Lewis, the investigating officer, testified that Mrs. Legendre told him she was traveling at 45 miles per hour just prior to the accident (the police report also reflects 45 miles per hour for the defendants’ vehicle). Thus we have our first discrepancy in the evidence presented to the trial court.

Next, there is the paramount question of the location of the Legendre automobile just prior to the accident. Here, too, the testimony is inconsistent. Mrs. Legendre, and two of her three guest passengers, stated that the auto was in the left-hand [691]*691lane for at least one full block before the accident; the third lady could not recall the car’s position. Ms. Walker and her guest passenger on the motorcycle aver that the defendants’ automobile was in the right-hand lane, following a school bus, and, as the bus slowed to make a right-hand turn at Central Avenue, the car unexpectedly came around the left side of the bus and struck the cycle.

The third point on which there was divergent testimony presented to the trial judge concerns the location of the motorcycle at the time of impact. Plaintiff Walker and her passenger insist that they were inside the median area when struck by the defendants’ vehicle. Mrs. Legendre and her passengers, on the other hand, insist that the collision occurred in the left-hand lane of traffic. In connection with this, Ms. Walker and her witness testified that the car struck the rear portion of their vehicle, whereas the defense’s testimony is that the cycle was struck “broadside.”

Hitherto, the trial judge faced the choice of believing principals and/or interested parties on one side or the other. However, the judge was not relegated to making such a choice since the accident was witnessed by an independent third party, Lisa Bocage, a mail carrier. Ms. Bocage stated:

Q. Where was the motorcycle in relation to the westbound lanes of the Westbank Expressway when you first saw it?
A. Okay. It was approaching the stop sign.
Q. And where was the stop sign located?
A. On the corner of the Westbank Expressway service road and Central Avenue.
Q. All right. Did you see the motor bike stop?
A. Yes.
Q. Than what happened after that?
A. Okay. There was a school bus, and there was a car behind the school bus. And the car came from behind the school bus and hit Theresa and the other girl on the bike. And I saw them rolling in the street. [...]
Q. Describe what happened to the motorcycle at that point in time.
A. Okay. I saw the motor bike get hit in the back. All right. Then I saw the lady rolling in the street. [...]
Q. Describe what the motorcycle did.
A. Proceeding to cross the Westbank Expressway. All right. And then the school bus right here (indicating) was turning, and then they had a car that came from behind like this and hit the girls on the bike.
Q. When you say that the car went like this, what do you mean?
A. The car came from behind the school bus.
Q. Did it change lanes?
A. Yeah. It had to.
Q. What lane did it change into?
A. The left lane.
Q. Into the left lane?
A. Yes.
Q. And how far away from Central Avenue was it when it first changed into the left lane? Can you give me a distance, approximately?
A. Say maybe about a car length or two. Maybe about a car length.
Q. Can you tell me about how fast it was going?
A. It was fast. It was a high rate of speed.
Q. Was the motor bike stopped or moving at the time it was hit?
A. It was stopped because she had to stop there. You have to stop in the middle of the Westbank Expressay because of the traffic on the other side. [...]
Q. Where was the motor bike when it was hit?
A. Right here (indicating), by the median. You know, where they had— [...]
Q. Now, my question to you is this: Was the motor bike on Central Ave[692]*692nue, was it — had it passed out of the left lane to the break in the median when it was hit?
Yes. [...] >
Had it crossed the left lane entirely? p
Yes. [...] !>
You said that the car struck the back of the motor bike? O
Yeah. t>
Describe what part of the motor bike it hit. By “back”, what do you mean? <©
Like the last tire, what I would consider the back. >

The trial judge heard testimony on April 1, 1985 and then on May 17, 1985.

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487 So. 2d 689, 1986 La. App. LEXIS 6664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-millers-group-insurance-co-lactapp-1986.