94-1400 La.App. 3 Cir. 9/13/95, Uriegas v. Gainsco

• Decision Date: 13 September 1995
• Citation: 663 So.2d 162
• Parties: 94-1400 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 162

663 So.2d 162

94-1400 La.App. 3 Cir. 9/13/95

Danny URIEGAS, et al., Plaintiffs-Appellants, v. GAINSCO, et al., Defendants-Appellees.

No. 94-1400.

Court of Appeal of Louisiana Third Circuit.

Sept. 13, 1995.

Writ Denied Dec. 15, 1995.

Silas B. Cooper Jr., Abbeville, for Danny Uriegas et al.

Lisa Cloutier McCowen, Lafayette, for Gainsco, et al.

Before KNOLL, COOKS, and PETERS, JJ.

[94-1400 La.App. 3 Cir. 1] KNOLL, Judge.

This case addresses the fatality of Sylvia Uriegas (Sylvia) arising out of a motorist/pedestrian accident involving her ex-husband, Jerry Uriegas (Jerry). Plaintiffs, Danny Louis Uriegas (Danny), individually, and as the duly appointed provisional tutor of his minor sisters, Patricia Elaine Uriegas and Anna Marie Uriegas, filed suit for the wrongful death of their mother, Sylvia, against Jerry, the plaintiffs' father. The plaintiffs also named Intracoastal Liquid Mud, Inc. (ILM), Jerry's employer, and ILM's insurer, Gainsco, as defendants. Danny also presented a personal claim for the negligent infliction of emotional distress under La.Civ.Code art. 2315.6 and Lejeune v. Rayne Branch Hospital, 556 So.2d 559 (La.1990).

The trial lasted two weeks. After hearing the evidence presented by both parties, the jury deliberated for two hours and ten minutes and returned a 9-3 verdict in favor of the defendants. The plaintiffs appeal, presenting two issues: (1) the jury committed manifest error when it ruled in favor of the defendants and found that [94-1400 La.App. 3 Cir. 2] Jerry Uriegas was not negligent; and (2) the district court erred when it failed to grant the plaintiffs' motion for a new trial because of alleged jury misconduct. We affirm.

Facts

On Saturday evening, April 11, 1992, beginning at approximately 7:30 p.m., the decedent, Sylvia, and her friend, Frances Trahan Abate, went to several bars in Abbeville in search of Sylvia's ex-husband, Jerry, an experienced truck driver who worked for ILM driving an 18 wheeler vacuum truck. That same night, Sylvia contemplated renewing her relationship with her ex-husband; they had been divorced approximately two years. Along the way and while searching in several bars for her ex-husband, Sylvia consumed alcoholic beverages. ¹ Unable to find her ex-husband, who was then working his shift that night at ILM, Sylvia returned at approximately 11:30 p.m. to her apartment at Chapel Downs, located near Louisiana Highway 14 a/k/a West Port Road in Abbeville. ² Once there, Sylvia conveyed her intention to reconcile with her ex-husband to her son, Danny, who was then on leave from military service with the Navy.

Danny responded negatively to his mother's idea and told her that he had heard that Jerry, his step-father, had been seen at an area video store holding hands with another woman. To this, Sylvia indignantly replied, "I can't believe it. I can't believe it. We were supposed to get back together."

Hoping to confront her ex-husband with the rumor, Sylvia attempted to contact Jerry at ILM. However, she was unable to talk with Jerry because he was out on a job. Instead, Sylvia spoke twice with Willard Buford, a dispatcher at ILM. To assure [94-1400 La.App. 3 Cir. 3] that her ex-husband would call her back, Sylvia fabricated a story. She told Mr. Buford that there was an emergency and that Jerry's brother had been killed.

Shortly thereafter, Sylvia received a telephone call from Ms. Abate, the friend who had earlier gone drinking with her. During this telephone conversation, Sylvia fumed about the rumor concerning the woman at the video store and told Ms. Abate that she had left messages at ILM which would assure that Jerry would respond to her calls. Sylvia also related to Ms. Abate that she was still "buzzing" from her earlier alcohol consumption and that she intended to ride with Jerry to his next job after he arrived at her apartment.

When Jerry returned to ILM, the dispatcher gave him Sylvia's messages. Jerry telephoned Sylvia, but she refused to talk about the emergency on the phone and requested that Jerry immediately come to her apartment. Still on the job, Jerry loaded his vacuum tanker with 80,000 pounds of drilling mud and drove to Sylvia's apartment, which was en route to the drilling rig site where Jerry was to deliver the mud. ³

When Jerry arrived at Sylvia's apartment complex, it was dark and there was a patchy, heavy fog. Jerry parked his 18 wheeler 3.5 feet off the north, right hand shoulder of Louisiana Highway 14's west bound lane, across from the 345.5 foot driveway that traveled generally in a southerly direction to the Chapel Downs apartment complex. ⁴ Kane Marceaux, who was sitting with his girl friend on the steps of his sister's house which was located off the north shoulder of the highway, [94-1400 La.App. 3 Cir. 4] watched Jerry park his truck and was able to approximate its general position on the shoulder when asked to do so at trial. Before exiting his truck, Jerry made sure that the yellow marker lights along both sides of the truck and the flashing red caution lights to the rear of his truck were lighted. Jerry then crossed the east and west bound lanes of Louisiana Highway 14, approximately 23 feet wide, and proceeded down the driveway that led to his ex-wife's apartment.

Immediately after Jerry reached Sylvia's apartment to inquire about the emergency, Sylvia interrogated him about the rumor that Danny had told her concerning the woman at the video store. Quickly learning that the emergency concerning his brother's death had been fabricated by his ex-wife, Jerry attempted to leave the apartment complex and return to his truck so that he could complete his scheduled delivery assignment for ILM. He told Sylvia that he would return to discuss this matter with her after he completed his job. However, Sylvia tried to hamper her ex-husband's departure and followed him down the driveway leading to the Chapel Downs apartment complex.

During their trek down the driveway, Sylvia and Jerry argued bitterly and even exchanged blows. These events attracted the attention of Robert Fish, a fellow resident of Chapel Downs and a retired dump truck driver, who saw Jerry first arrive at the apartments and witnessed the commotion. He saw Sylvia strike Jerry in the face and afterwards saw Jerry retaliate by pushing Sylvia to the ground. Despite Sylvia's attempts to prevent his departure, Jerry was able to reach the end of the driveway, cross Louisiana Highway 14, and enter the cab of his truck.

Sylvia followed Jerry to the truck and entered the cab of the truck from the passenger's side door, which was unlocked. Once inside the cab of the truck, Sylvia demanded to know the identity of the woman at the video store and tried to provoke [94-1400 La.App. 3 Cir. 5] Jerry's answer by attempting to destroy his CB-radio, transmission, and other costly electrical equipment. Jerry stopped Sylvia and forcefully removed her from the cab. He then placed her atop and across his shoulders and carried her half way down the length of the 345.5 foot driveway to the Chapel Downs apartment complex.

Meanwhile, the presence of the 18 wheeler, the hostile confrontations between Sylvia and Jerry, and the sight of a woman being carried atop a man's shoulders attracted the attention of another Chapel Downs resident, Mildred Brown. Suffering from insomnia, Ms. Brown was watching these events at approximately 12:30 a.m. While carrying Sylvia atop his shoulders, Jerry shouted twice for someone to call the police. Jerry's pleas were witnessed by Ms. Brown, who also heard Sylvia respond: "I'll behave. I'll be quiet. I'll behave." Jerry put Sylvia down and promised her that he would return to talk with her after he finished work.

Thereafter, from different vantage points at the apartment complex, Robert Fish and Ms. Brown both witnessed Sylvia walking toward her apartment in the opposite direction and away from Jerry. They both then saw Jerry turn around and quickly run back down the length of the driveway to his truck. When Ms. Brown saw Jerry reach the latter half of the driveway, she testified that she saw Sylvia turn around away from her apartment and proceed down the driveway after her ex-husband, who had by that time reached his truck. Robert Fish stated: "Then, all of a sudden, she stopped, turned around and ran back toward the driveway and headed out."

Puzzled by Sylvia's actions and because he did not think that she had time to make it down the driveway and catch the truck before it left, Robert Fish exited his upstairs apartment and walked downstairs to see what was transpiring and why Sylvia was running down the driveway after the truck.

[94-1400 La.App. 3 Cir. 6] Once in the truck, Jerry testified that he started the truck's engine, released the air brakes, and turned on the headlights. Ms. Brown testified that she saw the illumination of the truck's headlights and heard the "crunch" of the truck's gears being placed in motion to begin its take-off. As Jerry moved off the shoulder onto the west bound lane of Louisiana Highway 14, Ms. Brown testified that Sylvia stopped at the end of the Chapel Downs driveway and did not at that time enter the travel portion of the road. Ms. Brown saw Sylvia stop at the end of the driveway as the truck was leaving, and because she thought that the commotion was over, she went to bed.

In the time that it took Robert Fish to leave his upstairs apartment and walk down the stairs to observe the truck and Sylvia's actions, the truck had pulled off the shoulder and was traveling in a westerly direction down Louisiana Highway 14. Once Robert Fish arrived at the end of the stairs, he testified that he looked for Sylvia, did not see her, and presumed that she had indeed made it to the truck in time and had left with it. Neither Robert Fish nor Ms. Brown witnessed the actual accident which brought Sylvia to her death. Although he did not see the accident, Mr. Marceaux, the man who had earlier watched Jerry park...