Zimmerman v. Progressive Security Insurance Co.

174 So. 3d 1230, 2015 WL 4749025
CourtLouisiana Court of Appeal
DecidedAugust 12, 2015
DocketNos. 49,982-CA, 49,983-CA
StatusPublished
Cited by11 cases

This text of 174 So. 3d 1230 (Zimmerman v. Progressive Security 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
Zimmerman v. Progressive Security Insurance Co., 174 So. 3d 1230, 2015 WL 4749025 (La. Ct. App. 2015).

Opinion

LOLLEY, J.

| joshlan Raymo, defendant, appeals a judgment by the Eighth' Judicial District Court for the Parish of Winn, State of Louisiana, in favor of Devon Zimmerman, plaintiff. The jury awarded Zimmerman general damages and medical special damages, along with costs of litigation. Zimmerman also appeals the final judgment as to the amount of damages awarded. For the following reasons, we affirm the judgment of the trial court.

Facts

On July 14, 2012, an incident occurred around 2:00 a.m., involving a Monte Carlo and a Hummer, owned by Future Expectations Community Care Services, LLC (“Future Expectations”), the employer of Joshlan Raymo, driver at the time of the incident. Devon Zimmerman and Michael Carter were in Zimmerman’s Monte Carlo; there was conflicting testimony over who was driving it. Zimmerman claims Raymo drove up quickly on her passenger side and sideswiped the Monte Carlo, forcing it into oncoming traffic. Raymo disputes this. Both vehicles parked on the left shoulder of Hwy. 84 near Winnfield, Louisiana, with the Monte Carlo facing on coming traffic and the Hummer parked facing the front of the Monte Carlo.

Zimmerman, Raymo, and Carter had a complicated personal relationship previous to these events, which explains Raymo’s intent during the incident. After parking the vehicles, a heated argument ensued between Zimmerman and Raymo, quickly escalating into a physical altercation, which was broken up by Carter. The parties had a moment to calm down. Raymo’s mother, Beverly Raymo, arrived, accompanied by Raymo’s [¡^brother, and parked behind the Monte Carlo, trapping Zimmerman in. Carter returned to the passenger seat of the Monte Carlo. Raymo returned to the Hummer and proceeded to ram the Hummer into the Monte Carlo three times. Conflicting testimony was presented concerning whether Zimmerman was talking with Beverly Raymo by the side of the highway or if she was in the Monte Carlo with Carter at the time Raymo rammed it. Ultimately, the jury found that Zimmerman was in her vehicle. Raymo maintains that the accident occurred because she was [1234]*1234startled by a speeding car driving down the highway.

Louisiana State Trooper Lieutenant David Westmoreland first responded to the scene and called an ambulance for Carter. Zimmerman accompanied Carter in the ambulance. Once at the hospital, Zimmerman stated she had been in a car accident, but said nothing about the physical altercation between her and Raymo. The Monte Carlo was removed by a tow truck and found to be a total loss by Zimmerman’s insurance company, State Farm Mutual Automobile Insurance Company (“State Farm”).

Zimmerman filed a petition naming Ray-mo, Future Expectations and Progressive Security Insurance Company (“Progressive”), insurer for Future Expectations and the Hummer, as defendants. Subsequently, State Farm filed a petition naming Raymo and Progressive as defendants. Progressive answered both petitions alleging the “events giving rise to the suit were not accidental.” Both suits were later consolidated.

A jury trial ensued. After the first day of testimony the trial court dismissed Progressive by directed verdict, stating, “The Court takes apposition that there’s no way this is anything other than an intentional act.” The trial court deemed any objections made by Raymo to any purported expansion of the pleadings to be untimely, and denied Raymo’s motion for directed verdict on the issues of both liability and medical causation. The trial court allowed Zimmerman to continue presenting evidence of an intentional tort.

The jury found Raymo at fault for intentionally driving into the Monte Carlo. Further, the jury found Zimmerman’s actions were not a proximate cause of the incident, and also found she proved the physical and emotional pain she suffered following the incident. The jury awarded Zimmerman $70,000.00 in general damages and $12,819.50 in medical special damages. The trial court cast all costs of litigation to Raymo. At a subsequent hearing, Ray-mo’s motion for judgment notwithstanding the verdict was denied. Raymo appeals the judgment, and Zimmerman answers the appeal on the issue of damages.

Discussion

Courts of Appeal apply the manifest error standard of review in civil cases. Detraz v. Lee, 2005-1263 (La.01/17/07), 950 So.2d 557. To reverse a fact finder’s determination under this standard of review, an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong. Brewer v. J.B. Hunt Transp., Inc., 2009-1408 (La.03/16/10), 35 So.3d 230, 239. Ultimately, the issue to be resolved by the, previewing court is not whether the trier of fact was right or wrong, but whether, in light of the record reviewed in its entirety, the fact finder’s conclusion was a reasonable one. Id. The reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Khammash v. Clark, 2013-1564 (La.05/07/14), 145 So.3d 246, 258.

Liability

In her first assignment of error, Raymo alleges that Zimmerman failed to carry her burden of proof at trial regarding liability. Raymo argues Zimmerman’s petition alleged only a theory of negligence, but at trial she presented only evidence of [1235]*1235an intentional tort. Raymo claims Zimmerman should have amended the petition to include the intentional tort theory of recovery, and by presenting only evidence of an intentional tort at trial, failed to carry the burden of proof on the theory of negligence. Raymo further argues that the trial court erred in not granting her request for directed verdict on the issue of liability.

Louisiana is a fact-pleading state. La. C.C.P. art. 891; Greemon v. City of Bossier City, 2010-2828 (La.07/01/11), 65 So.3d 1263. The fact-pleading requirement replaces an earlier “theory of the case” pleading requirement. Id. at 1268. However, even though the “theory of the case” need no longer be pled, La. C.C.P. art. 891 provides that a petition “shall contain a short, clear, and concise statement of all causes of action arising | Bout of, and of the material facts of, the transaction or occurrence that is the subject matter of the litigation.” Id. So long as the facts constituting the claim or defense are alleged or proved, the party may be granted any relief to which he is entitled under the fact-pleadings and evidence. La. C.C.P. art. 865; Udomeh v. Joseph, 2011-2839 (La.10/26/12), 103 So.3d 343, 349. No technical forms of pleading are required. La. C.C.P. art. 854. In order to plead “material facts” within Louisiana’s fact-pleading system, the pleader must state what act or omission he will establish at trial. Miller v. Thibeaux, 2014-1107 (La.01/28/15), 159 So.3d 426, 432. The petition must set forth the facts upon which recovery is based; otherwise the defendant would have neither adequate notice of the allegation nor an opportunity to counter the claim. Robertson v. West Carroll Ambulance Serv. Dist., 39,331 (La.App.2d Cir.01/26/05), 892 So.2d 772, 777, writ denied, 2005-0460 (La.04/22/05), 899 So.2d 577.

Under La. C.C. art.

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

Related

Cite This Page — Counsel Stack

Bluebook (online)
174 So. 3d 1230, 2015 WL 4749025, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zimmerman-v-progressive-security-insurance-co-lactapp-2015.