Adams v. Canal Indemnity Co.
| Decision Date | 10 May 2000 |
| Docket Number | No. 99-1190.,99-1190. |
| Parties | Clavern ADAMS, et al. v. CANAL INDEMNITY COMPANY, et al. |
| Court | Court of Appeal of Louisiana — District of US |
Tyron D. Picard, Lafayette, LA, for plaintiff, Clavern Adams.
Bennett B. Anderson, Lafayette, LA, for plaintiff, Cleveland Joiner.
Nicole G. Chaisson, Abbeville, LA, for plaintiff, Christopher Lee.
M. Candice Hattan, Timothy Wayne Basden, Breaud & LeMoine, Lafayette, LA, for defendant, Canal Indemnity Insurance Co.
L. Lane Roy, Lafayette, LA, for defendant, Blake Fontenot, d/b/a Blake's Trucking, and Brent Trahan.
BEFORE; DOUCET, C.J., THIBODEAUX and DECUIR, JJ.
Plaintiffs, Clavern Adams, Cleveland Joiner and Christopher Lee, sued Brent Trahan, the driver of an eighteen-wheeler, after being struck by Trahan. Also sued was Blake Fontenot, d/b/a Blake's Trucking, the owner of the eighteen-wheeler, and Canal Indemnity Company, his liability insurer. Both Plaintiffs and Defendants appeal the trial court judgment, entered pursuant to a jury verdict. The jury concluded that each Plaintiff employed fraudulent acts to enhance his claims and apportioned ten percent of fault to Adams, the driver of the Plaintiffs' vehicle, forty percent to Fontenot, and fifty percent to Trahan. The jury awarded full reimbursement for medical expenses to each Plaintiff, but awarded only nominal damages.
On October 5, 1993, while traveling on U.S. Highway 167, Clavern Adams' vehicle was struck on the driver's side by the trailer of an eighteen-wheeler which was driven by Brent Trahan and owned by Blake Fontenot. Cleveland Joiner and Christopher Lee were passengers in the white Chevrolet extended cab pickup truck. Joiner and Lee were also employees of Adams' family tree service business. At the site of the accident, Highway 167 is a four-lane concrete roadway within the city limits of Maurice, Louisiana. Brent Trahan was in the left lane when the trailer disconnected, slid into the right lane, and hit Clavern Adams' truck as he passed the eighteen wheeler. The pickup truck was struck on the B-pillar by the corner of the trailer. The B-pillar is located immediately behind the driver's side door. The majority of the impact was absorbed by the B-pillar and resulted in a gouge in the frame of the B-pillar.
As a result of this accident, Clavern Adams was injured. Ultimately shoulder surgery and an anterior cervical fusion were performed. Cleveland Joiner underwent surgery on a L4-5 herniated disc. He also experienced back spasms. Christopher Lee suffered a back and nerve strain. All three Plaintiffs testified that they have been unable to return to the heavy manual labor they had been performing at Adams Tree Service, Clavern Adams' family's business.
A trial was held, at the conclusion of which, Plaintiffs, Joiner and Lee, moved for a directed verdict on liability against Defendants, Brent Trahan and Blake Fontenot. The court granted Joiner's motion; however, Lee's motion was denied. After substantial argument on the issue, the trial court denied the Plaintiffs' requested jury charge that the time and circumstances surrounding the Plaintiffs' hiring of counsel were irrelevant and should not be considered. Furthermore, over the Plaintiffs' objection, the trial court included a jury interrogatory on fraud.
After several hours of deliberations, the jury found the three Plaintiffs committed fraud as revealed in the responses to jury interrogatories. The jury found Clavern Adams to be ten percent at fault and Brent Trahan and Blake Fontenot ninety percent at fault and awarded damages as follows:
Clavern Adams
Past and future medical expenses: $45,194.15
Past and future lost wages: $ 0
Loss of future earning capacity: $ 0
General damages: $ 225.00
__________
$45,419,15
Cleveland Joiner
Past and future medical expenses: $38,758.68
Past and future lost wages: $ 0
Loss of future earning capacity: $ 0
General damages: $ 500.00
__________
$39,258.68
Christopher Lee
Past and future medical expenses: $ 9,089.66
Past and future lost wages: $ 0
Loss of future earning capacity: $ 0
General damages: $ 225.00
___________
$ 9,314.66
Judgment on the jury's verdict was entered by the trial court and the Plaintiffs' awards were reduced by ten percent. The Plaintiffs were assessed one-third of the court costs (to be divided pro rata). Joiner's post-trial JNOV motions were denied. The Defendants' post trial motions were also denied. All parties appeal. Defendants limited their appeal to quantum; they did not appeal the liability finding of the jury.
By their first assignment, Plaintiffs con tend that the trial court erred in allowing the Defendant to systematically exclude African-American jurors in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct 1712, 90 L.Ed.2d 69 (1986) and Edmonsor. v. Leesville Concrete Co., Inc., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991).
This issue is not properly before this court. Courts of this state have consistently held that a party to a civil suit who seeks review of a Batson/Edmonsan issue, must do so by an application for supervisory writs. Freeman v. Humble, 27,419 (La.App. 2 Cir. 9/27/95); 661 So.2d 652; Phillips v. Winn Dixie Stores, Inc., 94-354 (La.App. 4 Cir. 2/23/95); 650 So.2d 1259, writ denied, 95-748 (La.4/28/98); 653 So.2d 599. An appeal after trial is not permitted. Id. Therefore, we decline to consider the merits of this issue.
By this assignment of error, the Plaintiffs contend the trial court erred in instructing the jury on fraud and allowing an interrogatory on fraud.
The instructions on fraud which were given to the jury stated as follows:
The defendants in this case have made an allegation that one or more of the plaintiffs have committed fraud. Fraud is a misrepresentation or suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction. Fraud in this case must be shown by a preponderance of the evidence, that is, that fraud is more likely than not. Fraud may not be presumed but must be proven. Additionally, the law authorizes proof of fraud by circumstantial evidence, including highly suspicious facts and circumstances. You may also consider a history of prior acts but only insomuch as those prior acts show a pattern, motive, or whether the plaintiffs had the ability and experience to execute a fraudulent scheme. If you find that fraud on the part of one or more of the plaintiffs exists, you are entitled to consider this in reaching your verdicts to that or those plaintiff by whom you find fault.
This jury charge is taken from the definition of fraud in La.Civ.Code art. 1953 and from the sources cited in Williamson v. Haynes Best Western of Alexandria, 95-1725 (La.App. 4 Cir. 1/29/97); 688 So.2d 1201, writ denied, 97-1145 (La.6/20/97); 695 So.2d 1355. The pertinent inquiry for this court is whether the instruction was so confusing or misleading that the jury was prevented from doing justice. Francis v. Brown, 95-1241 (La. App. 3 Cir. 3/20/96); 671 So.2d 1041. We find the language of this instruction to be neither misleading or confusing. Accordingly, this assignment has no merit.
Plaintiffs contend the trial court erred in admitting evidence of prior and subsequent accident claims. We disagree.
Daigle v. Coastal Marine, Inc., 482 So.2d 749 (La.App. 1 Cir.1985), writ granted and rev'd in part on other grounds, 488 So.2d 679 (La.1986) delineates the proper use of prior claims evidence at trial and notes the difficulty of determining when such evidence should or should not be allowed:
[T]he need for the exposure of fraudulent claims comes in conflict with the need for the protection of innocent litigants from unfair prejudice. At two extremes the practice is fairly well agreed upon. Thus, when it is sought to be shown merely that the plaintiff is a chronic litigant, or a chronic personal injury litigant, the courts consider that the slight probative value is overborne by the danger of prejudice, and they exclude the evidence. At the other extreme, if it is proved not merely that the former claims were similar to the present claim and were false and fraudulent, then the strong relevance of these facts to evidence the falsity of the present claim is apparent and most courts admit them.
The intermediate situation is the difficult one. The evidence is that the present party, now suing for a loss claimed to be accidental, such as a loss of property by fire, or personal injury in a collision, has made repeated previous claims of similar losses. Here the relevance is based on the premise that under the doctrine of chances repeated injuries of the same kind are unlikely to happen to one person by accident. On the other hand, this evidence is prejudice-arousing and standing alone would seldom be sufficient to support a finding of fraud. It seems that the judge, balancing in his discretion probative value against prejudice, should admit the evidence only when the proponent has produced or will produce other evidence of fraud. [Emphasis added.]
Id. at 750-751, quoting McCormick's Handbook of Law of Evidence, § 196, pp. 466-467 (E. Cleary ed., 2d ed.1972).
In the intermediate situation, when there is evidence of repeated prior claims of a similar nature, the evidence is relevant to show that plaintiff has exceeded his likely chances of repeated, accidental injury of the same kind....
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