951186 La.App. 1 Cir. 4/4/96, Couvillion v. Shelter Mut. Ins. Co.

• Decision Date: 04 April 1996
• Citation: 672 So.2d 277
• Parties: Cir
• Court: Court of Appeal of Louisiana — District of US

Page 277

672 So.2d 277

951186 La.App. 1 Cir. 4/4/96

Mr. and Mrs. Charles COUVILLION v. SHELTER MUTUAL INSURANCE COMPANY, Borden, Inc., State of Louisiana Through the Department of Transportation and Development.

No. 95 CA 1186.

Court of Appeal of Louisiana First Circuit.

April 4, 1996.

Appealed from the Twenty-Third Judicial District Court, Parish of Ascension, Suit No. 36,640; Honorable John L. Peytavin, Judge Presiding.

Robert E. Kleinpeter, Baton Rouge, for Mr. & Mrs. Charles Couvillion.

John F. Jakuback, Baton Rouge, for State of Louisiana Through the Department of Transportation & Development.

Thomas K. Kirkpatrick, Baton Rouge, for Borden Chemical Co.

Arthur H. Andrews, Baton Rouge, for PALA, Inc.

Ben E. Clayton, Metairie, for Aetna Casualty & Surety Co.

Before LeBLANC, WHIPPLE and FOGG, JJ.

[951186 La.App. 1 Cir. 2] LeBLANC, Judge.

This appeal arises from a personal injury case in which a pedestrian was struck by an automobile as he was attempting to cross a highway.

On January 22, 1985, plaintiff, Charles A. Couvillion, was employed by PALA, Inc., a contractor performing work on a turnaround at Borden chemical plant in Ascension Parish. PALA employees were required by Borden's to park their vehicles in a parking lot located across La. Hwy. 73 from the Borden plant. La. Hwy. 73 is a two-lane highway with a speed limit of 50 m.p.h. On the day of the accident, Mr. Couvillion completed his shift at approximately 5:30 a.m., exited the plant, and began walking to the parking lot. It was still dark at that time. Mr. Couvillion entered the roadway and either at or near the center-line was struck by a vehicle driven by Joseph Greaud.

Mr. Greaud indicated he was driving southbound on La. Hwy. 73 at approximately 50 m.p.h. as he approached the Borden plant. He was on his way to work and was late. He testified he suddenly saw several pedestrians in the southbound lane of traffic, one of whom was later identified as Virgil Kimble, Jr. and veered to the left to avoid them. At that point, Greaud's vehicle struck Mr. Couvillion, who was thrown up onto the windshield and over the top of the automobile. As a result, Mr. Couvillion sustained injuries to his head (including double vision), right leg, and right hand.

Mr. & Mrs. Couvillion settled with and released Mr. Greaud, the driver of the vehicle which struck Mr. Couvillion, upon payment of the limits of his liability policy. Thereafter, Mr. and Mrs. Couvillion filed suit against Borden, and the State of Louisiana, through the Department of Transportation and Development (DOTD). ¹

Borden filed a third-party demand against PALA, Mr. Couvillions' employer, seeking contractual indemnification for any amounts for [951186 La.App. 1 Cir. 3] which Borden was held liable to plaintiffs.

Following a bench trial, the court rendered judgment in favor of plaintiffs and against Borden for twenty percent of plaintiffs' total damages. The judgment was based on the court's apportionment of fault as follows: 15% to Virgil Kimble, Jr. (who was not a party to the suit), 20% to Borden, 25% to plaintiff, and 40% to Mr. Greaud. Plaintiffs' claims against DOTD were dismissed because DOTD was found not to be at fault. Mr. Couvillion's total damages were fixed at $343,364.90, consisting of the following awards: $30,931.90 for past medical expenses; $11,000.00 for future medical expenses; $44,565.00 for past lost wages; $11,868.00 for future lost wages; and $245,000.00 for pain and suffering. Mrs. Couvillion's damages for loss of consortium were fixed at $15,000.00. Additionally, judgment was rendered on Borden's third-party demand in favor of Borden and against PALA in the amount for which Borden was cast in judgment. ²

Plaintiffs and Borden each appealed the trial court judgment, and PALA answered the appeals. Plaintiffs allege the trial court erred: in assessing any fault to Mr. Couvillion and Mr. Greaud and, alternatively, in the amount of fault assessed to each; in assessing any fault to Mr. Kimble, a non-party "phantom tortfeasor"; in denying plaintiffs' motion for new trial; in awarding inadequate damages for loss of consortium to Mrs. Couvillion; and, in failing to award Mr. Couvillion damages for loss of earning capacity and loss of enjoyment of life. In its appeal, Borden alleges the trial court erred in finding Borden at fault, in finding DOTD free of fault, and in not allowing defendants credit for settlement funds paid to plaintiffs. In its answer, PALA contends the trial court erred in holding it must indemnify Borden.

[951186 La.App. 1 Cir. 4] APPORTIONMENT OF FAULT TO NON-PARTY

Plaintiffs contend the trial court committed legal error in assigning any percentage of fault to Virgil Kimble, Jr., the pedestrian who crossed La. Hwy. 73 ahead of plaintiff. We agree.

In Cavalier v. Cain's Hydrostatic Testing, Inc., 94-1496, p. 7 (La. 6/30/95), 657 So.2d 975, 980, the Louisiana Supreme Court considered the language of La.C.C.P. art. 1812C(2), which permits quantification of the fault of "another person, whether party or not", if such quantification is appropriate. The Supreme Court indicated this language was intended primarily to provide for quantifying the fault of a settling tortfeasor who was never made a party to the litigation, and stated further that:

It is generally neither necessary nor appropriate to quantify the fault of other non-parties (except persons whose negligence is imputable to the plaintiff or of a defendant).

* * * * * *

[A] finding of fault against a person not a party to the action is not binding on that person, and the plaintiff cannot recover against that person nor can the defendants obtain contribution from that person. Because of these considerations, juries should not be required to quantify the fault of a person that no party sees fit to join in the suit as a defendant or a third party defendant unless there is a compelling reason, such as in the case of a settling tortfeasor. Cavalier, 94-1496 at pp. 9-10, 657 So.2d at 981-82.

In the present case, Mr. Kimble was not made a party to this litigation by either plaintiffs or defendants, nor was he a settling tortfeasor. Under these circumstances, there was no compelling reason for the trial court to quantify Mr. Kimble's fault, and the trial court erred in doing so. Cavalier, 94-1496 at pp. 9-10, 657 So.2d at 981-82; Duplantis v. Danos, 95-0545, pp. 11-12 (La.App. 1st Cir. 12/15/95), 664 So.2d 1383, 1390-91. Accordingly, the 15% fault assessed to Kimble must be stricken, and that percentage of fault reapportioned to the other defendants using the ratio approach described in Guidry v. Frank Guidry Oil Co., 579 So.2d 947, 954 (La.1991), and cited with approval in Cavalier. Duplantis, 95-0545 at p. 12, 664 So.2d at 1390-1391; Stockstill v. C.F. Industries, Inc., 94-2072, p. 17 (La.App. 1st [951186 La.App. 1 Cir. 5] Cir. 12/15/95), 665 So.2d 802, 816, writ denied, 96-0149 (La. 3/15/96), 669 So.2d 428. The trial court assigned 20% fault to Borden, 25% fault to plaintiff, and 40% fault to Mr. Greaud. Using the ratio approach, Borden's fault is increased to 23.53%, plaintiff's fault is increased to 29.41%, and Mr. Greaud's fault is increased to 47.06%.

APPORTIONMENT OF FAULT

On appeal, plaintiffs assert the trial court erred in assigning fault to Mr. Couvillion and Mr. Greaud and, alternatively, in the amount of fault assigned to each. Borden and PALA argue the trial court erred in assessing 20% fault to Borden. All appellants complain of the trial court's finding that DOTD was free of fault.

In apportioning fault, the factfinder should consider both the nature of each party's conduct and the extent of the causal relation between the conduct and the damages claimed. Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La.1985); Duplantis, 95-0545 at p. 12, 664 So.2d at 1391. It is well-settled that the allocation of fault is a factual matter within the sound discretion of the trial court, which will not be disturbed on appeal in the absence of manifest error. ³ Duplantis, 95-0545 at p. 12, 664 So.2d at 1391.

Where there is conflict in the testimony, the trial court's reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Where two permissible views of the evidence exist, the factfinder's choice between then cannot be manifestly wrong. Mistich v. Volkswagen of Germany, Inc., 95-0939, p. 4 (La. 1/29/96), 666 So.2d at 1073-1077. An appellate court must always keep in [951186 La.App. 1 Cir. 6] mind that if a trier-of-fact's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even if convinced that if it had been sitting as trier of fact, it would have weighed the evidence differently. Mistich, 95-0939, p. 5, 666 So.2d at 1077.

For the reviewing court, the issue to be resolved is not whether the trier of fact was wrong but whether the factfinder's conclusions were reasonable. Moreover, where the testimony of expert witnesses differ, it is the responsibility of the trier of fact to determine which evidence is most credible. This language places the responsibility of determining which expert was more credible on the trial judge. Id.

In the present case, there was conflicting evidence regarding whether, and to what extent, the various parties to this litigation where at fault. In apportioning fault, the trial court gave extensive written reasons for judgment, which included numerous factual findings and the court's conclusions regarding the conduct of the respective parties. After a thorough review of the record and consideration of the respective duties and conduct of the parties, as well as an examination of the trial court's written reasons for judgment (which are attached as an appendix hereto), we cannot say that the trial court's factual findings were clearly...