25,922 La.App. 2 Cir. 11/28/94, Maynor v. Vosburg
| Decision Date | 28 November 1994 |
| Citation | 648 So.2d 411 |
| Parties | 25,922 La.App. 2 Cir |
| Court | Court of Appeal of Louisiana — District of US |
James R. Clary, Jr., Robert H. Schmolke, Baton Rouge, Robert Levy, Ruston, for appellant Larry Colon Maynor.
Hudson, Potts & Bernstein by Brady D. King, II, Monroe, for appellees Vosburg, E. LeeYoung & Co., Inc. and Cas. Reciprocal Exchange.
Theus, Grisham, Davis & Leigh by F. William Sartor, Jr., Monroe, for appellee Nat. Union Fire Ins. Co.
Charles S. Norris, Jr., Monroe, for appellee R.L.I. Ins. Co.
Before MARVIN, SEXTON, NORRIS, LINDSAY and BROWN, JJ.
Plaintiff, Larry Colon Maynor, appeals from a judgment based on a jury verdict granting him damages of $33,589 for injuries sustained when his 18-wheeler was struck by a pick-up truck driven by defendant, Michael Young Vosburg. Maynor argues that the award is inadequate to compensate him for the back injury caused by the accident. The various defendants appealed and answered Maynor's appeal, complaining, among other things, that the jury's allocation of fault was erroneous and that Maynor should be assessed with some degree of comparative fault.
For the reasons set forth below, we amend in part and as amended, affirm.
The accident occurred on I-20 in Ruston, Louisiana, on June 15, 1989. Plaintiff, Larry Maynor, a truck driver for Reeves Transportation Company, was driving west in his tractor-trailer rig. Defendant, Michael Vosburg, who was a minor at the time of the accident, was entering westbound traffic on I-20 from the Highway 167 entrance ramp. Vosburg, an employee of his grandfather's business, E. Lee Young & Company, Inc., was driving a pick-up truck owned by the company and insured by Casualty Reciprocal Exchange Insurance Company (C.R.E.).
According to Vosburg, he sideswiped Maynor's 18-wheeler while trying to pass or avoid a white car that stopped ahead of him on the entrance ramp. Contact was made between the right front fender of Maynor's 18-wheeler and the left rear bumper of Vosburg's pick-up.
Maynor finished his route and waited until returning to his home in South Carolina before seeking medical treatment on June 20, 1989. Maynor initially saw Dr. Anthony Hucks-Folliss, who initiated a program of conservative treatment. Subsequently, Maynor consulted Dr. Samuel Chewning, who recommended surgery. However, Maynor decided not to have surgery at that time.
Maynor consulted Dr. George Ferre in November 1990, and in January 1991, Dr. Ferre performed a lumbar laminectomy at the L-4, L-5 level. In August 1991, Dr. Ferre performed a second surgery at the L-5, S-1 level and a third surgery was performed in September 1991. None of these surgeries was deemed successful.
Maynor filed suit against Michael Vosburg and his father, William Vosburg. Also named as defendants were Vosburg's employer, E. Lee Young & Company, and its insurer, C.R.E., in addition to R.L.I. Insurance Company, which had issued a personal umbrella liability policy to Vosburg's father. Reeves Transportation's workers' compensation insurer, National Union Fire Insurance Company, intervened, seeking reimbursement of the workers' compensation benefits paid to Maynor as a result of the accident.
A lengthy jury trial concluded on October 14, 1992. The jury assessed 85% fault to Vosburg and 15% to "any other person" (the unknown driver of the white car). The jury awarded Maynor general damages of $15,000 and special damages of $18,589, a total award of $33,589.
Prior to trial, the trial court ruled that the C.R.E. insurance policy provided primary coverage and would pay the first $250,000. However, the trial court found that the R.L.I. policy was not a "true" excess policy and held that the C.R.E. and R.L.I. policies would provide concurrent coverage for any amounts in excess of $250,000 up to $1,750,000, with C.R.E. paying 43% and R.L.I. paying 57%.
Maynor appealed, contending that the jury erred in failing to find Vosburg 100% at fault in causing the accident and in awarding inadequate damages. He also asserts that the trial court erred in allowing defendants' accident reconstruction expert to testify as to the "minimal property damage" to Maynor's 18-wheeler. Intervenor, National Union, appealed, adopting Maynor's arguments as its own.
R.L.I. appealed and answered Maynor's appeal, asserting that the jury erred in not assessing comparative fault of at least 30% to Maynor and 50% to "any other person." R.L.I. also contends that the trial court erred in finding that its policy was not a true excess policy and that it should pay concurrently with C.R.E.
The Vosburgs, E. Lee Young & Company, and C.R.E. answered the appeal and appealed devolutively, arguing that the jury erred in finding the driver of the white car only 15% at fault and in absolving Maynor of all fault. Defendants also complain of the trial court's denial of C.R.E.'s claim against R.L.I. for reimbursement of court costs, attorney fees and expert witness fees incurred by C.R.E. in defense of their mutual insureds while R.L.I. sought to deny coverage. C.R.E. asserts that R.L.I. should bear an equal share of the costs.
Each litigant takes issue with the jury's apportionment of fault. Maynor asserts that Vosburg should be held 100% liable for the accident. Defendants argue that Maynor should be assessed with some fault and that the phantom white car should be assigned a greater percentage of fault.
Testimony about the circumstances surrounding the collision was given by three witnesses: Larry Maynor; his passenger-trainee, Joanne Buck; and Michael Vosburg.
Larry Maynor testified that on June 15, 1989, he was driving his tractor-trailer rig west on I-20 on his way to deliver a load of carpet to Lubbock, Texas. While driving through Ruston, because of heavy traffic and the number of entrance and exit ramps, Maynor was driving approximately 50 m.p.h. in the westbound, left lane. Maynor observed two vehicles, a white car and the pick-up truck driven by Vosburg, approaching I-20 on the ramp entering the westbound interstate from Highway 167. Accordingly, Maynor took his foot off the gas pedal and began to tap the brake. Maynor testified that the pick-up truck attempted to pass the white car, which by that time was in the outside, right lane of the interstate. However, there was not enough room between the white car and Maynor's 18-wheeler for Vosburg to pass and while Vosburg was attempting to pass the white car, the rear of Vosburg's pick-up collided with the right front corner of Maynor's rig.
Maynor testified that after the impact, he grabbed the steering wheel, "stood on the brakes and held on." As demonstrated by the skid marks, which were about 281 feet long, Maynor was able to keep his vehicle primarily within his lane of traffic and bring the rig to a controlled stop.
At the time of the accident, Maynor's passenger, Joanne Buck, was a trainee in Reeves Transportation's driving program. Ms. Buck testified that Maynor's rig was traveling in the left lane of I-20 closest to grassy median. She also testified that there was another vehicle, presumably the white car, in the right lane slightly in front of the rig. The pick-up truck coming from the ramp tried to squeeze between Maynor's 18-wheeler and the other car. However, because the pick-up driven by Vosburg was going too fast and there was no room to pass, it ran into the front of the 18-wheeler. After hitting the rig, Vosburg lost control of his pick-up truck, which flipped several times and stopped in the path of Maynor's rig. Maynor applied his brakes and was able to stop the 18-wheeler before it struck the pick-up truck again. Ms. Buck testified that the other car apparently saw the pick-up truck and tried to accelerate out of the way.
Michael Vosburg testified that he was driving on the entrance ramp to I-20 when the white car ahead of him slowed down and came to a "rolling stop" in the merge lane. He testified that there were no other vehicles in the immediate area to precipitate such a stop. Vosburg admitted that he probably could have stopped behind the white car, but he chose not to do so.
According to Vosburg, after he checked and saw no traffic in the outside lane, he entered the interstate. The white car tried to enter the same lane. In order to avoid the white car, Vosburg got into the left, inside lane. Vosburg stated that he never saw Maynor's 18-wheeler prior to the collision.
Apportionment of fault is a factual matter and the trier of fact's findings will not be disturbed on appeal unless they are manifestly erroneous or clearly wrong. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1983), U.S. cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994); Davis v. L.J. Earnest, Inc., 25,368 (La.App. 2d Cir. 01/19/94), 631 So.2d 63; Devereux v. Allstate Insurance Co., 557 So.2d 1091 (La.App. 2d Cir.1990).
According to Michael Vosburg, the white car ahead of him stopped in the merge lane unnecessarily because there was no oncoming traffic. The only vehicle approaching was Maynor's 18-wheeler, which was in the far lane. Vosburg's attempt to pass and merge onto the interstate ahead of the white car demonstrated extremely poor judgment that merits imposition of the greater percentage of fault. However, if Vosburg's testimony is credible, the driver of the "phantom" white car, in coming to a virtual stop when he should have been accelerating in order to merge with the I-20 traffic, also exhibited poor judgment and created an unsafe situation. Therefore, we find that the jury's apportionment of 15% fault to this driver does not constitute manifest error.
Furthermore, our review of the record fails to demonstrate any evidence of fault on the part of Larry Maynor, who acted as prudently as possible under the...
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