Ivory v. Safeway Ins. Co. of La.

287 So.3d 807

Earl IVORY

v.SAFEWAY INSURANCE COMPANY OF LOUISIANA, et al.

19-521

Court of Appeal of Louisiana, Third Circuit.

December 18, 2019

Donald Lynn Mayeux, Attorney at Law, Post Office Drawer 1460, Eunice, Louisiana 70535, (337) 457-9610, Counsel for Plaintiff/Appellee: Earl Ivory

Michael Wayne Landry, Staff Counsel for Safeway Insurance, Post Office Box 92807, Lafayette, Louisiana 70509, (877) 323-8040, Counsel for Defendants/Appellants: Safeway Insurance Company of Louisiana, Jake Vidrine

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and Candyce G. Perret, Judges.

KEATY, Judge.

Defendants appeal the trial court's judgment regarding liability and general damages. For the following reasons, the trial court's judgment is affirmed.

FACTS & PROCEDURAL HISTORY

This personal injury matter stems from an automobile collision on June 4, 2018, in the Wal-Mart parking lot in Eunice, Louisiana, between Earl Ivory and Jake Vidrine. On July 12, 2018, Ivory filed a petition for damages against Vidrine and his automobile insurer, Safeway Insurance Company of Louisiana (hereinafter collectively referred to as Defendants). Ivory alleged he was driving his 1989 red Chevrolet truck when Vidrine, who was driving a 2010 white Dodge Charger, was traveling at a high rate of speed and crashed into the driver's side door of Ivory's truck. Ivory claimed that Vidrine failed to keep a proper lookout, drove carelessly and recklessly, failed to yield to the right of way, failed to adequately slow down while driving through a parking lot, failed to stop before crashing into Ivory's truck, failed to exercise the last clear chance to avoid the accident, failed to do what Vidrine should have done and see what he should have seen under the circumstances, and any other acts of negligence that would be shown at trial. According to his petition, Ivory sustained personal injuries to his head, neck, back, arms, and legs, which required medical treatment. Ivory sought damages for past, present, and future pain and suffering, disability, mental anguish, anxiety, medical expenses, loss of use and enjoyment, and depreciation of the value of his truck. Defendants answered the petition and disputed liability, causation, damages, coverage, ownership, and model year of the truck operated by Ivory. Defendants further asserted the affirmative defense of "no pay, no play."

Following a one-day bench trial on April 3, 2019, the trial court denied Defendants' affirmative defense of "no pay no play." It determined that Ivory owned and operated a 1992 Chevy S-10, which was insured by State Farm Mutual Automobile Insurance Company on the date of the accident. The trial court ruled the accident resulted from the comparative fault of both Ivory and Vidrine and assessed each driver fifty percent of the fault. It held that Ivory sustained $20,000.00 in general damages, $2,132.90 in medical expenses, and $1,500.00 in property damages. In light of its finding of comparative fault, the trial court ordered Defendants to pay Ivory $10,000.00 in general damages, $1,066.45 in medical expenses, and $750.00 in property damages, plus judicial interest from date of judicial demand until paid. It set the expert witness fee for the testimony of Dr. Reginald Segar to $1,000.00, as court costs, and ordered Ivory and Defendants to each pay one-half of all court costs. The trial court's judgment was signed on April 22, 2019. It is from this judgment that Defendants appeal.

On appeal, Defendants assert the following assignments of error:

(1) [T]he trial judge committed legal error in determining that plaintiff proved he was the owner of the vehicle involved in the accident, after the trial judge correctly factually determined that the vehicle involved in the accident was a 1992 Chevy S-10.

(2) [T]he trial judge committed legal error in determining that plaintiff was covered by auto liability insurance after the trial judge correctly factually determined that the vehicle involved in the accident was a 1992 Chevy S-10.

(3) [T]he trial judge committed legal error in awarding any compensatory damages since the plaintiff was uninsured at the time of the accident and the damages for bodily injury did not exceed $15,000 and the amount for property damage did not exceed $25,000.

(4) [T]he trial judge committed legal error in failing to determine that Ivory was one hundred percent at fault in causing this accident.

STANDARD OF REVIEW

In Duncan v. Kansas City Southern Railway Co. , 00-66, pp. 10-11 (La. 10/30/00), 773 So.2d 670, 680-81, the Louisiana Supreme Court explained the standard of review regarding comparative fault determinations as follows:

As with other factual determinations, the trier of fact is vested with much discretion in its allocation of fault. [ Clement v. Frey , 95-1119 (La. 1/16/96), 666 So.2d 607 ]. Therefore, an appellate court should only disturb the trier of fact's allocation of fault when it is clearly wrong or manifestly erroneous. Only after making a determination that the trier of fact's apportionment of fault is clearly wrong can an appellate court disturb the award, and then only to the extent of lowering it or raising it to the highest or lowest point respectively which is reasonably within the trial court's discretion. Clement , 666 So.2d at 611 ; Coco v. Winston Industries, Inc. , 341 So.2d 332, 335 (La.1977).

DISCUSSION

I. Liability

In their fourth assignment of error, Defendants contend the trial court committed legal error in failing to determine Ivory was one hundred percent at fault in causing the accident. The trial court determined the accident resulted from the comparative fault of both Ivory and Vidrine and assessed each driver fifty percent of the fault.

The trial court's oral reasons supporting its allocation of fault provides:

As to liability this is one of those accidents where you kind of shake your head like how [the] heck did this happen? You [have] two adults driving in a parking lot with no impediments to vision and yet they run into each other. There nobody, nobody ran a stop sign.

[W]e've got an independent witness who believed that Mr. Vidrine was driving in a reckless [manner] at least when he came around and almost hit [the witness's] trailer in her opinion. And maybe that did scare her and got her a little excited. But then she says that the [sic] did slow down for the curve.

The position of the vehicle in the photographs does show that he was in the proper lane of travel at that point. But I don't understand how you did[n]'[t] see the red truck coming to that spot, stopping and then pulling out such that the accident wasn't avoided. And I don't understand how Mr. Ivory who stopped and presumably looked right and left[ ] didn't see a white car coming and then continued on into the path of the vehicle. Therefore, I'm finding fault at 50/50. I think that's the right thing to do in this matter.

The trial court's determination of comparative fault was based upon witness testimony, a witness statement, medical records, photographs, and other evidence regarding the accident submitted into evidence at trial.

On review, the record contains Ivory's trial testimony, which reveals he was seventy-eight years old at the time of trial. Ivory testified that on the day of the accident, he finished shopping at Wal-Mart when he got into his truck in the parking lot. He slowly drove towards the back of the parking lot where the oak trees were located. Ivory stopped at the end of the lane and then proceeded, at which point he was struck by Vidrine's vehicle. Ivory revealed that he never saw Vidrine's vehicle before the crash. He explained that Vidrine must have approached him from the opposite direction because Vidrine hit the front of Ivory's truck. Ivory recalled that the impact from Vidrine's vehicle "started on the front fender, the front left fender. He came on back to the left door all the way back." Ivory testified that a woman subsequently approached his window and gave him a piece of paper indicating that she witnessed the accident.

According to trial testimony, the woman who gave Ivory a piece of paper was Nancy Cordell. Cordell's testimony reveals that, on the day of the accident, she and her dogs were riding with her son in his vehicle. Attached to the vehicle was a trailer carrying Cordell's new car. On their way home to DeRidder, they stopped at the Wal-Mart in Eunice. Cordell took her dogs to use the bathroom by the oak trees when a white car, driven by Vidrine, caught her attention because it was "coming down and almost" hit the back of the trailer carrying Cordell's new car. Cordell explained that Vidrine continued traveling towards the oak trees while crossing the parking lines. During that time, Cordell also spotted Ivory in his vehicle. She revealed that Ivory waved to her, she waved back to him, Ivory "stopped ... and then he started to go[,] and the white car came this way and hit him." She witnessed the crash and opined that Vidrine was traveling at approximately twenty-five miles per hour. According to Cordell's testimony, Vidrine never applied his brakes or performed any maneuver to avoid the accident.

Cordell testified that following the collision, Vidrine kept telling Ivory that it was his [Ivory's] fault. She noted that Vidrine's father, who showed up after the accident, also kept telling Ivory that it was his fault. Cordell explained that Vidrine and his father were being very rude and badgering Ivory. She opined that the collision resulted from Vidrine's carelessness. After the accident, Cordell approached Ivory and handed him a piece of paper containing her name, address, and phone number so that he could give it to the police officers to inform them that she witnessed the accident. Cordell's statement, which was submitted into evidence and in the record on review, states that she witnessed the accident that occurred when a "white Dodge Charger was racing around my truck and car and wasn't looking where he was...