96-1687 La.App. 3 Cir. 4/30/97, Riser v. Acadiana Limousine Service, Inc.

• Decision Date: 30 April 1997
• Citation: 693 So.2d 330
• Parties: 96-1687 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 330

693 So.2d 330

96-1687 La.App. 3 Cir. 4/30/97

Charlie R. RISER, Plaintiff-Appellee, v. ACADIANA LIMOUSINE SERVICE, INC. and Aeray Guilliot Defendants-Appellants.

No. 96-1687.

Court of Appeal of Louisiana Third Circuit.

April 30, 1997.

Gregory Kent Moroux, J. Minos Simon, Miles A. Matt, Lafayette, for Charlie R. Riser.

Thomas Anthony Budetti, Lafayette, for Acadiana Limousine Service, Inc., et al.

Michael Edward Parker, Lafayette, for Acadiana Dodge, Inc. and Chrysler Ins. Co.

Kraig Thomas Strenge, Lafayette, for Aeray Guilliot.

James S. Holliday, Jr., Baton Rouge, for United Service Ins. Co.

Before DOUCET, C.J., and PETERS and SULLIVAN, JJ.

[96-1687 La.App. 3 Cir. 1] DOUCET, Chief Judge.

Three parties appeal the trial court's judgment in this case arising out of a collision between a van and a pickup truck.

On April 4, 1994, Charlie Riser was driving his 1984 pickup truck on Evangeline Thruway (Highway 90) in Lafayette, Louisiana, on his way from Lafayette to New Iberia. Evangeline Thruway is a four lane highway divided by a median. He was driving in the left inside lane at about 50 miles per hour when he was struck without warning by the van driven by Aeray Guilliot and rented from Acadiana Dodge. The pickup apparently flipped over several times. Both Riser and Guilliot were taken to the hospital. Riser was treated for injuries to his left arm, wrist [96-1687 La.App. 3 Cir. 2] and hand. As a result of tests done at the hospital, Guilliot was found to have a blood alcohol level of .23.

As a result of the accident, Riser sued Guilliot, Acadiana Dodge, its insurer, Chrysler Insurance Company (Chrysler) and Guilliot's employer, at first thought to be Acadiana Limousine Service, Inc. and later found to be Acadiana Crew Change, Inc. (Crew Change). He also sued James Feigler, the sole stockholder in Crew Change and the person in whose name the van was rented from Acadiana Dodge. Riser alleged that Crew Change is Feigler's alter ego. The matter came to trial in 1996. Questions regarding insurance coverage were tried to the judge. The trial judge ruled that Aeray Gilliot was operating the van with the permission of Acadiana Dodge, that Guilliot was covered by the Chrysler policy introduced into the record, that the policy affords coverage for punitive damages and that Chrysler had a duty to defend Guilliot. For its part, the jury found that Riser had suffered damages of $400,000.00 plus past medical expenses. The jury found that Guilliot's intoxication was a cause of the accident and that his actions showed wanton and reckless disregard for the rights and safety of others. It made a punitive damage award of $100,000.00. The jury apportioned fault for the accident 20% to Guilliot and 80% to Acadiana Dodge.

Chrysler and Acadiana Dodge appeal. Guilliot and Riser answer the appeal.

COVERAGE

First, Chrysler cites an endorsement to its policy which states that coverage includes: "Only the autos you own that are enrolled in the Chrysler Credit Corporation DRAC Program." Chrysler argues that since the plaintiff did not prove [96-1687 La.App. 3 Cir. 3] that the van was enrolled in the Chrysler Credit DRAC ¹ Program, he failed to carry his burden of showing insurance coverage. Therefore, Chrysler argues the plaintiff is not entitled to recover under the policy. However, we find that the evidence of record is sufficient to show that the van was covered by the policy. First, Chrysler and Acadiana Dodge stipulated to the authenticity of the policy. The testimony at trial showed that all rental cars were covered by insurance coverage. The policy was admitted into evidence without objection by Chrysler or Acadiana Dodge as the policy which provided coverage for Acadiana Dodge's rental cars. Further, it was supplied to the plaintiff by Acadiana Dodge as the policy which covered all of Acadiana Dodge's rental vehicles. The van which was involved in the accident was owned by Acadiana Dodge and used as a rental car.

PERMISSIVE USE

Chrysler and Acadiana Dodge next argue that the trial judge erred in finding that Guilliot was a permissive user rather than a lessee of the vehicle. This is a finding of fact which may not be disturbed in the absence of manifest error.

The determination of whether Guilliot was a permissive user or a lessee requires examination of the rental arrangement between Guilliot's boss, James Feigler, sole stockholder of Crew Change, and Acadiana Dodge. Crew Change is in the business of transporting work crews to, primarily, oil field related job sites. In connection with this business, Crew Change rents vans from a variety of local car rental businesses, among them Acadiana Dodge. Crew Change often begins its trips to job sites at times outside normal business hours, usually in the very early morning hours. In order to obtain vehicles without paying for unneeded rental periods, Feigler [96-1687 La.App. 3 Cir. 4] reached an arrangement with Acadiana Dodge whereby keys to the vehicle to be rented were picked up during business hours but the rental period did not begin until the beginning of the trip. Vehicles were rented in Feigler's name because it was Chrysler's policy to rent only to individuals rather than to corporations. The rental was charged either to Feigler's personal credit card or to a credit card issued in the name of one of his corporations. On the date of the accident, Feigler was out of town. It is undisputed that Guilliot had permission to arrange for rental of vehicles as needed by Crew Change. Guilliot picked up the keys of the van on the morning of April 4, 1994. He was scheduled to use the van to take a crew to a job site at 4:00 a.m. on April 5, 1994. Guilliot picked up the van at about 10 p.m. on April 3, 1994. Guilliot admits that he was drinking before picking up the van. He stated that his intention was to have the van serviced and to park it in front of his house so that he could leave directly from home in the morning. He alleges that this was a normal practice in connection with the rented vehicles.

The testimony with regard to the time at which the rental agreement started is in conflict. Wayne Schumock was the rental manger for Acadiana Dodge from April 1993 though April 1996. He stated that the lease on the van started at 4:00 a.m. on April 5, 1994. Feigler was charged for one day of use even though the vehicle was not under lease at the time of the accident. Schumock stated that if the vehicle left the lot prior to the time stated on the rental contract, then the contract would be revised to state the new time. He stated that on another occasion when Feigler needed the vehicle early he called and had the beginning time of the rental contract changed. Feigler, however, testified that the arrangement with Acadiana Dodge was that the contract began when the job mission began. Guilliot stated that it was a regular [96-1687 La.App. 3 Cir. 5] practice to pick up the vehicle after business hours but before the beginning of the job mission for which the vehicle had been rented.

From this testimony, the trial judge apparently concluded that, while the van was not rented to Feigler at the time of the accident, Feigler and his employees had permission to use the vehicle.

It is well settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong," and where there is conflict in the testimony, 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.... The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong.... In applying the manifestly erroneous--clearly wrong standard to the findings below, appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo....

When findings are based on determinations regarding the credibility of witnesses, the manifest error--clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said.... Where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness's story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination.... But where such factors are not present, and a factfinder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong....

[96-1687 La.App. 3 Cir. 6] Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989). (Citations omitted.) (Footnote omitted.)

Given the conflict in testimony, and the absence documentary evidence supporting or contradicting testimony of any witness, we cannot say that the trial judge erred in crediting the testimony of Feigler and Guilliot. Therefore, we find no error in the conclusion that Guilliot was using the vehicle with the implied consent of Acadiana Dodge and was not a lessee of the vehicle. Having so found, we also affirm the trial judge's finding that Chrysler had a duty to defend Guilliot....