Glaser v. Hartford Fire Ins. Co.

375 So.3d 479

2022-0534 (La.App. 1 Cir. 8/30/23)

Gerald Wayne GLASER, Individually and as Executor of the Estate of Charles Raymond Glaser, Sr., Trudy Glaser, and Robert Glaser

v.HARTFORD FIRE INSURANCE COMPANY, Steven Ray Cowart, Rail 1, LLC, and State of Louisiana Through the Louisiana Department of Transportation

Danna J. Glaser, Individually and as the Executor of the Estate of Charles Raymond Glaser, Sr., Barbara G. Lacombe, and Charles R. Glaser, Jr.

v.Hartford Fire Insurance Company, Steven Ray Cowart, Rail 1, LLC, and State of Louisiana Through the Louisiana Department of Transportation and Development

2022 CA 0534

CA 0535

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: August 30, 2023

Appealed from the Eighteenth Judicial District Court, Parish of Pointe Coupee • State of Louisiana, Docket Number 49,803 c/w Docket Number 50,012-A • Division "C", The Honorable Alvin Batiste, Jr., Presiding Judge

Julie E. Vaicius, Daniel E. Atkinson, Jr., Metairie, Louisiana and H. Alston Johnson, III, Kevin W. Welsh, Baton Rouge, Louisiana, Counsel for Appellants Defendants—Steven Ray Cowart; Rail 1, LLC; Hartford Fire Insurance Company; and Hartford Casualty Insurance Company

Amira A. Makke, Robert M. Marionneaux, Jr., B. Cade Melancon, Baton Rouge, Louisiana, Counsel for Appellees Plaintiffs—Gerald Wayne Glaser, individually and as Executor of the Estate of Charles Raymond Glaser, Sr.; Trudy Glaser; Robert Glaser; and Karl Glaser

Donald J. Cazayoux, Jr., J. Lane Ewing, Jr., Baton Rouge, Louisiana, Counsel for Appellees Plaintiffs—Danna J. Glaser, individually and as Executor of the Estate of Charles Raymond Glaser, Sr.; Barbara G Lacombe; and Charles R. Glaser, Jr.

Before: Welch, Theriot, Penzato, Lanier, and Greene, JJ.

PENZATO, J.

₃The defendants—Steven Ray Cowart, Rail 1, LLC ("Rail 1"), Hartford Fire Insurance Company, and Hartford Casualty Insurance Company—challenge the general compensatory damages awarded for survival and wrongful death actions by the trial court pursuant to a jury verdict. The plaintiffs—decedent’s seven adult children—have answered the defendants’ appeal, seeking reversals of: the jury’s 20% fault allocation to decedent; the trial court’s denial of their motions for judgment notwithstanding the verdict ("JNOV"), or alternatively, motions for new trial; and a motion in limine granted in favor of Rail 1, prohibiting the introduction of any evidence regarding Rail l’s direct negligence.

For the reasons that follow, we reverse the trial court’s denial of defendants’ JNOV as to the amounts of the survival damage award and wrongful death awards; we render JNOV, awarding plaintiffs $2 million in survival damages and $500,000 each in wrongful death damages (totaling $3.5 million). We grant plaintiffs’ answers to the appeal. We reverse the trial court’s denial of plaintiffs’ JNOV; we render JNOV, finding defendants Steven Ray Cowart/Rail 1 100% at fault for the automobile collision.

BACKGROUND

On May 13, 2020, at approximately 9:49 a.m., three employees of Rail 1 were operating tractor-trailers pulled by semi-trucks and traveling in a caravan on US Highway 190 West, just west of the Town of Lottie, Louisiana, headed to a location near Fordoche, to deliver equipment to a Union Pacific Railroad facility. At this location, Highway 190 is a divided, four-lane highway with a posted speed limit of 55-miles-per-hour. The eastbound and westbound lanes are separated by a guardrail. Driver Shaye Stanford led the Rail 1 caravan, followed by drivers Steven Ray Cowart and Michael Cleypas.

₄Around the same time, Gerald Wayne Glaser, Sr. was also traveling on Highway 190 West in a 2012 white Ford F-150 pickup truck, some distance behind the Rail 1 caravan.

After passing through the Town of Lottie, the Rail 1 drivers realized they had missed a turn. The drivers pulled onto the north shoulder of Highway 190 West, with the intention of using an opening in the guardrail to make a left U-turn. The drivers agreed to "spot" for each other by watching for oncoming traffic and communicating via CB radio or hands-free cell phones. To have enough room to make the left U-turn, the drivers pulled off the shoulder and into the parking lot of an abandoned building.

After Ms. Stanford successfully completed her left U-turn, she pulled onto the south shoulder of Highway 190 East to spot for the other two drivers. Mr. Cowart moved into the parking lot to begin his left U-turn. He looked across the highway and watched for oncoming traffic in the eastbound lanes, while Ms. Stanford spotted oncoming traffic for him in the westbound lanes. Ms. Stanford communicated to Mr. Cowart that westbound traffic would be clear once two vehicles passed. Once those two vehicles passed, Mr. Cowart began his left U-turn. The front of Mr. Cowart’s semi-truck cab had almost made it past the center line of Highway 190 when the cab collided with Mr. Glaser’s pickup truck.

Emergency responders arrived at the scene of the accident. Mr. Glaser was able to exit his vehicle and walk to a gurney to be transported by ambulance to Baton Rouge General Medical Center ("BRG").

Upon admission to BRG’s intensive care unit ("ICU"), medical providers diagnosed Mr. Glaser with four fractured ribs, a fractured sternum, a chest hematoma, bruises to his abdomen and lungs, moderate effusion to the right lung, a compression fracture of the lumbar spine, a distended abdomen, and a closed head injury with concussion. Over the next four days, Mr. Glaser was able to sit in a chair, ₅stand, and walk, although he was still experiencing pain. On the fifth day after the accident, medical providers diagnosed Mr. Glaser with an ileus, which is an impairment or stoppage of the flow of intestinal contents due to an obstruction or diminished intestinal motility.¹ His medical providers began undertaking procedures to try to alleviate the intestinal disorder; however, Mr. Glaser’s colon perforated on May 25, 2020. Mr. Glaser died on May 26, 2020, approximately two weeks after the accident, at the age of eighty-nine.

PROCEDURAL HISTORY

Mr. Glaser’s seven adult children—who ranged in age from 59 to 69 at the time of his injury and death—filed a survival action as his representatives, pursuant to La. C.C. art. 2315.1. They also filed wrongful death actions on their own behalf under La. C.C. art. 2315.2.² Named as defendants were the driver, Steven Ray Cowart; Mr. Cowart’s employer, Rail 1;³ Rail 1’s insurers, Hartford Fire Insurance Company and Hartford Casualty Insurance Company (collectively, "Hartford");⁴ Mr. Glaser’s personal automobile insurer, Louisiana Farm Bureau Casualty Insurance Company ("Farm Bureau");⁵ and the State of Louisiana, through the ₆Department of Transportation and Development ("DOTD"). Farm Bureau asserted crossclaims against Mr. Cowart, Rail 1, and Hartford, seeking indemnity and in the alternative, contribution, from the crossclaim defendants.

Prior to trial, the trial court dismissed DOTD from the suit.⁶ The plaintiffs filed a motion in limine to prohibit the defendants from referring to, utilizing, or introducing the plaintiffs’ medical malpractice action filed against Dr. Christopher J. Christensen and/or BRG. The defendants stipulated they would not seek an allocation of fault on the part of Mr. Glaser’s medical providers or the hospital and further agreed that no reference would be made to the filing of a medical malpractice claim. Rail 1 also filed a motion in limine, seeking an order prohibiting the plaintiffs from introducing evidence at trial regarding Rail 1’s direct negligence or fault.⁷

The matter proceeded to a five-day jury trial. The parties stipulated that the jury’s determination of fault would only be allocated between Mr. Glaser and Mr. Cowart/Rail 1. The parties further stipulated that Mr. Glaser’s past medical expenses totaled $103,230.59, and his burial and funeral expenses totaled $13,714.33. During an in-chambers conference, Farm Bureau agreed to dismiss its cross-claim against Mr. Cowart, Rail 1, and Hartford in exchange for its dismissal "as a UM in both lawsuits." Plaintiffs’ counsel agreed, as did the trial court. On the second day of trial, the trial court orally granted the motion in limine filed by Rail 1 and prohibited the plaintiffs from introducing any evidence regarding Rail 1’s direct negligence or fault.

₇Following the close of evidence and arguments, the trial court instructed the jury, which then retired to deliberate. Following deliberations, the jury returned a unanimous verdict: Mr. Cowart and Rail 1 were at fault in causing the automobile collision, and Mr. Cowart was in the course and scope of his employment with Rail 1 at the time of the automobile collision. Mr. Glaser was also at fault in causing the automobile collision. The jury allocated 80% fault to Mr. Cowart and Rail 1 and 20% fault to Mr. Glaser. The jury found that Mr. Glaser suffered damages as a result of the automobile collision and awarded him special damages and survival damages: 1) $103,230.59 for past medical expenses; 2) $13,714.33 for burial and funeral expenses; and 3) $10 million for survival damages. The jury further concluded that each of Mr. Glaser’s seven children sustained wrongful death damages and awarded them $1.5 million each (totaling $10.5 million). The jury’s compensatory damages award totaled $20,616,944.92.

The trial court signed a judgment in accordance with the jury’s verdict on October 21, 2021. Thereafter, pursuant to La. C.C.P. art. 1951 and with the consent of all parties, the trial court signed an amended final judgment on December 15, 2021. The trial court rendered judgment in the total amount of $16,493,555.94 (reflecting a 20% reduction of the jury’s compensatory damages verdict of $20,616,944.92, for Mr. Glaser’s fault), in favor of Mr. Glaser’s seven children and against Mr. Cowart, Rail 1, and Hartford, in solido, for $11 million, and against Mr. Cowart and Rail 1, in solido, for $5,493,555.94, allocated as...