93 2238 La.App. 1 Cir. 11/10/94, Thibodeaux v. USAA Cas. Ins. Co.

• Decision Date: 10 November 1994
• Citation: 93 2238 La.App. 1 Cir. 11/10/94, Thibodeaux v. USAA Cas. Ins. Co., 647 So.2d 351 (La. App. 1994)
• Parties: 93 2238 La.App. 1 Cir
• Court: Court of Appeal of Louisiana

Page 351

647 So.2d 351

93 2238 La.App. 1 Cir. 11/10/94

Donna M. THIBODEAUX (Pfeifer) v.USAA CASUALTY INSURANCE COMPANY.

No. 93 CA 2238.

Court of Appeal of Louisiana First Circuit.

Nov. 10, 1994.

Rehearing Denied Dec. 28, 1994.

Jay J. Luke, Houma, for appellantDonna M. Thibodeaux(Pfeifer).

Timothy G. Schafer, Lafayette, for appelleeUSAA Cas. Ins. Co.

Before LOTTINGER, C.J., and CARTER and PITCHER, JJ.

[93 2238 La.App. 1 Cir. 2] CARTER, Judge.

This is an appeal from a trial court judgment in an action for damages.

FACTS

On July 20, 1991, Donna Thibodeaux, a registered nurse, was driving in the left northbound lane of Tunnel Boulevard in Houma, Louisiana.¹As she approached the intersection of Tunnel Boulevard and Hollywood Road, Thibodeaux entered the left turn lane to turn onto Hollywood Road.Upon entering the turn lane, Thibodeaux collided with a vehicle which was crossing the turn lane in an effort to get into the southbound lane of Tunnel Boulevard.The vehicle crossing the turn lane was being driven by Trevor Whitten.As a result of the accident, Thibodeaux allegedly sustained serious injuries.

On July 13, 1992, Thibodeaux (plaintiff) filed an action for damages against USAA Casualty Insurance Company(USAA), her umbrella uninsured/underinsured motorist (UM) carrier.On August 9, 10, and 11, 1993, the matter was tried before a jury.During the trial, out of the presence of the jury, the parties stipulated that plaintiff had previously received the following amounts:

(1) $10,000.00 policy limits from Whitten's primary liability insurer, Colonial Lloyd's;

(2) $100,000.00 policy limits from State Farm Mutual Automobile Insurance Company, plaintiff's primary UM carrier;

(3) $2,500.00 medical payments coverage from State Farm Mutual Automobile Insurance Company; and

(4) $25,000.00 unconditional tender from USAA.

On August 11, 1993, the jury returned a verdict, assessing 75% of the fault to Whitten and 25% to plaintiff.The jury also found that the accident either caused or aggravated plaintiff's injuries and awarded her the following damages:

(1)  Past, present, and future mental anguish and physical pain     $  5,000.00
                       and suffering
                (2)  Past medical (stipulated)                                        19,078.61
                (3)  Future medical                                                    2,000.00
                (4)  Past lost wages                                                  11,534.00
                (5)  Loss of future earning capacity                                  90,000.00
                (6)  Permanent disability                                              5,000.00
                (7)  Loss of fringe benefits                                               0.00
                     -------------------------------------------------------------
                Total                                                               $132,612.61
                

Based on the jury verdict and the stipulation, the trial court awarded plaintiff $99,459.46, which is 75% of the jury verdict, subject to a credit of $137,500.00 already received by plaintiff.The court then assessed costs to USAA.

Plaintiff had also requested penalties and attorney's fees against USAA for its alleged failure to tender an adequate amount.Based on the jury's verdict, however, the trial court found that USAA was not liable to plaintiff for penalties and attorney's fees.

Plaintiff appealed from the trial court judgment, assigning the following specifications of error:

(1) The jury abused its discretion in assessing plaintiff with 25% of the fault.

(2) The jury abused its discretion in awarding plaintiff only $5,000.00 for past, present, and future mental anguish and physical pain and suffering.

(3) The jury abused its discretion in awarding plaintiff only $11,534.00 for past lost wages.

(4) The jury abused its discretion in awarding plaintiff only $90,000.00 for loss of future earning capacity.

(5) The jury abused its discretion in awarding plaintiff only $5,000.00 for permanent disability to the body.

(6) The jury abused its discretion in failing to award plaintiff damages for loss of fringe benefits.

[93 2238 La.App. 1 Cir. 4] 7) The trial judge erred in failing to award penalties and attorney's fees against USAA.

USAA answered the appeal, contending that the trial court erred in assessing USAA with court costs.

COMPARATIVE NEGLIGENCE

Plaintiff contends that the jury abused its discretion in assessing her with 25% of the fault.

It is well settled that the allocation of comparative negligence is a factual matter within the discretion of the trial court, and such determination will not be disturbed on appeal in the absence of manifest error.Daigle v. Legendre, 619 So.2d 836, 840(La.App. 1st Cir.), writ denied, 625 So.2d 1040(La.1993).For an appellate court to reverse a trial court's factual finding, it must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong.Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882(La.1993);Mart v. Hill, 505 So.2d 1120, 1127(La.1987).Thus, the reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court's finding.The reviewing court must review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous.Stobart v. State, Department of Transportation and Development, 617 So.2d at 882.

The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one.Stobart v. State, Department of Transportation and Development, 617 So.2d at 882.Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony.Moreover, where two permissible views of the evidence [93 2238 La.App. 1 Cir. 5] exist, the factfinder's choice between them cannot be clearly wrong.Stobart v. State, Department of Transportation and Development, 617 So.2d at 882-83.

The Louisiana Supreme Court, in Watson v. State Farm Fire and Casualty Insurance Co., 469 So.2d 967, 974(La.1985), set forth guidelines for apportioning fault under the doctrine of comparative negligence.The court stated the following:

In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the casual relation between the conduct and the damages claimed.

In assessing the nature of the conduct of the parties, the court listed various factors which may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought.Watson v. State Farm Fire and Casualty and Insurance Co., 469 So.2d at 974.

In the instant case, Trevor Whitten testified that, just prior to the accident, the signal light at the intersection of Tunnel Boulevard and Hollywood Road was red for the two northbound lanes of Tunnel Boulevard and that there was a line of traffic stopped in each of the two northbound lanes.Whitten stated that he was leaving the driveway of a convenience store on the east side of Tunnel Boulevard and that he wanted to cross the two northbound lanes to proceed south on Tunnel Boulevard.According to Whitten, two vehicles allowed space for him to cross the two northbound lanes so he proceeded to cross the lanes at a speed of approximately five miles per hour.Whitten testified that, when he entered the left northbound lane, there was a white truck stopped to his left, which was blocking his view of the left turn lane.According to Whitten, he stopped in front of the truck and then inched forward to a point which was approximately six feet into the [93 2238 La.App. 1 Cir. 6] left turn lane, where he again stopped.Whitten stated that, because he saw no vehicles approaching in the left turn lane, he moved forward approximately four feet toward the left southbound lane of Tunnel Boulevard.His vehicle was then struck on the driver's side door by plaintiff's vehicle.

Sheryl Griffen testified that she witnessed the accident.She stated that the signal was red for both northbound lanes of Tunnel Boulevard and that she was in her van stopped in the left northbound lane of Tunnel Boulevard.Griffen explained that there was a small car immediately in front of her and a large white truck immediately in front of the small car.To Griffen's right were the right northbound lane and a right turn lane.To her left was the left turn lane.Griffen testified that Whitten was exiting the parking lot of a convenience store adjacent to the right turn lane and that she watched as he"creeped" across the right turn lane and the two northbound lanes.She stated that Whitten stopped in the left northbound lane in front of the large white truck and that she then noticed the front end of Whitten's vehicle go forward into the left turn lane.At that time, Griffen noticed plaintiff's vehicle, which was immediately behind her, move into the left turn lane.According to Griffen, there were at least three car lengths between plaintiff's vehicle and Whitten's vehicle at that time.Griffen indicated that, when plaintiff passed her, she was accelerating up to approximately twenty miles per hour and looking at the turn signal which was still green.Griffen estimated that it was a matter of seconds from the time that plaintiff pulled into the left turn lane until the accident occurred.Griffen noted...