Barnes v. Thames

• Decision Date: 15 February 1991
• Docket Number: Nos. 89,s. 89
• Citation: 578 So.2d 1155
• Parties: Mona BARNES, Individually and as the Curator of the Interdict, Daniel J. White v. Charles W. THAMES, Fireman's Fund Insurance Company, and Reliance Insurance Company. Consolidated With Mona BARNES, Individually and as the Curator of the Interdict, Daniel J. White v. Charles W. THAMES, Fireman's Fund Insurance Company, and Reliance Insurance Company. CA 0435, 89 CA 1057. 578 So.2d 1155
• Court: Court of Appeal of Louisiana — District of US

Page 1155

578 So.2d 1155

Mona BARNES, Individually and as the Curator of the

Interdict, Daniel J. White v. Charles W. THAMES, Fireman's Fund Insurance Company, and Reliance Insurance Company.

Consolidated With

Mona BARNES, Individually and as the Curator of the

Interdict, Daniel J. White v. Charles W. THAMES, Fireman's Fund Insurance Company, and Reliance Insurance Company.

Nos. 89 CA 0435, 89 CA 1057.

578 So.2d 1155

Court of Appeal of Louisiana, First Circuit.

Feb. 15, 1991.

Writs Denied April 26, 1991.

Robert H. Schmolke, Edmund J. Schmidt, III, Baton Rouge, La., for plaintiff Mona Barnes Appellant-Second.

Gary M. Hellman, New Orleans, La., for defendant Charles W. Thames Appellee and Defendant-Aetna Cas. & Sur. Co. appellant--First.

Wood Brown, III, New Orleans, La., for defendant-Reliance Ins. Co/United Pacific Ins. Co., appellee.

Stacey Moak, Baton Rouge, La., for defendant-La. State Dept. of Public Safety appellee.

Pamela Jean Legendre, Slidell, La., for defendant-La. Dept. of Public Safety and Corrections, Office of State Police-Appellee.

Before COVINGTON, C.J., and LOTTINGER, EDWARDS, WATKINS, CARTER, SAVOIE, LANIER, CRAIN, ALFORD ^*, LEBLANC, FOIL, and DOHERTY ^** (EN BANC).

CARTER, Judge.

These consolidated appeals arise out of a suit for personal injuries resulting from a pedestrian-motor vehicle accident.

FACTS

On June 17, 1983, plaintiff, Daniel White (Daniel) was employed in a managerial position by Shop In Denmark, Inc. (SID), a retail furniture business, at its store on St. Charles Avenue in New Orleans. SID had only two shareholders, namely, Daniel's mother Mona Barnes, who also served as the corporation's president, and his uncle, James White. As a benefit of his employment, Daniel was assigned a company automobile which he was authorized to use for business and personal purposes.

During the late afternoon of June 17, 1983, Daniel drove the automobile to Slidell, Louisiana to meet with Thomas Wolfe, a contractor with Acadian Style Homes (ASH), regarding renovations ASH was performing on certain premises located in Metairie, Louisiana. Warren Jack, a subcontractor on the Metairie project, was also present at the ASH office that afternoon.

After Daniel's meeting with Wolfe, Jack invited Daniel to a lounge located across U.S. Highway 11 from the ASH office to discuss the renovation project further. Daniel agreed, leaving his car parked at the ASH office, and walked across Highway 11 to the Quarter Note Lounge. Jack testified that he and Daniel remained at the lounge for several hours discussing problems they were having with completion of the work on the Metairie premises.

Thereafter, Daniel left the lounge to return to his vehicle. As he attempted to walk across Highway 11, he was struck by an automobile driven by Charles W. Thames. As a result of this accident, Daniel suffered numerous and severe personal injuries, including brain damage. ¹

On January 24, 1984, Barnes filed suit on behalf of Daniel for the injuries he sustained as a result of the automobile-pedestrian accident. Named as defendants were: Charles W. Thames and his liability insurer, Fireman's Fund Insurance Company; Reliance/United Pacific Insurance Company (Reliance), uninsured/underinsured motorist insurer of SID; Aetna Casualty & Surety Company (Aetna), SID's alleged excess insurer; the State of Louisiana through the Department of Public Safety and Corrections; and, the State of Louisiana through the Department of Transportation and Development (the two departments are collectively referred to as the "State"). ²

Prior to trial of this matter, plaintiff settled with and released Thames and his insurer, Fireman's Fund, for the policy limits of $50,000.00. The matter proceeded to trial against the remaining defendants, the judge determining the liability of the State and the jury determining the liability of the other defendants. ³

At the conclusion of plaintiff's case, the trial court granted motions for directed verdict by Reliance and the State dismissing plaintiff's suit against them. The matter proceeded to trial against Aetna, the only remaining defendant. After trial, the jury returned a special verdict finding that Thames was 51% and Daniel was 49% at fault, that Daniel was acting in the course and scope of his duties as an employee of SID at the time of the accident, and that Aetna was arbitrary and capricious or acted without probable cause in failing to pay plaintiff's claim. Since Aetna stipulated to quantum of $3,500,000.00 and the jury had found Daniel 49% at fault in causing his own injuries, the trial court determined that plaintiff was entitled to damages of $1,785,000.00, subject to a credit of $50,000.00 for the settlement received from Thames and his insurer. Accordingly, judgment was rendered in favor of plaintiff and against Aetna for the $1,000,000.00 limit of Aetna's policy, together with legal interest from January 27, 1984, until paid and all costs. The judgment also cast Aetna for penalties of 12% pursuant to LSA-R.S. 22:658, attorney's fees to be fixed at a later date, and 12% interest on the penalties and attorney's fees from date of judicial demand until paid. Additionally, Aetna was cast for 12% interest on $735,000.00 (the amount by which the judgment exceeded the policy limits) from the date of judgment until paid.

Thereafter, Aetna filed a motion for judgment notwithstanding the verdict and, in the alternative, for a new trial on several grounds. The trial court granted Aetna's motion on the issue of statutory penalties and attorney's fees finding that Aetna's refusal to pay plaintiff's claim was not arbitrary and capricious. In all other respects, Aetna's motion was denied.

From these adverse judgments, Aetna and plaintiff appeal. Aetna assigns the following errors:

1. The trial court erred in failing to grant defendant's motion for a mistrial as a result of the plaintiff's introduction to the jury of the settlement between the plaintiff and Charles W. Thames.

2. The court erred in allowing the plaintiff to submit evidence which expanded the pleadings.

3. The court erred in denying appellant's motion to strike witness and/or restrict testimony at trial.

4. The verdict rendered by the jury was in error in assigning fifty-one (51%) percent comparative negligence to Charles W. Thames.

5. The jury erred in determining that Daniel White was in the course and scope of his employment with Shop in Denmark, Inc. at the time of the accident. The trial court erred in denying appellant's motion for directed verdict on the same issue.

6. The court erred in denying the admissibility of extrinsic evidence to impeach the credibility of a witness.

7. The court erred in casting the appellant to pay twelve (12%) percent interest on the amount of the judgment which exceeds its policy limits.

8. The trial court erred in failing to allow defense counsel to question the witness, David Vasterling, immediately after his cross-examination.

9. In the event that this honorable court grants plaintiff's appeal, thereby overturning the trial court's directed verdict in favor of Reliance/United Pacific Insurance Company, the excess umbrella policy issued by Aetna Casualty & Surety Company to Shop in Denmark, Inc. cannot be "stacked" upon the underlying Reliance/United Pacific policy.

Plaintiff assigns the following specifications of error:

1. In support of plaintiff's contention that the Louisiana Department of Transportation and Development was negligent in its maintenance of U.S. 11 and that this negligence contributed to Daniel White's accident, plaintiff established that U.S. 11, as one of the state's oldest intrastate highways, had not been upgraded to facilitate the increased volume of traffic and that this failure produced a hazardous condition; therefore the Trial Court's dismissal of the Louisiana Department of Transportation and Development after plaintiff's case on the merits constituted reversible error.

2. Daniel J. White, as an employee of Shop In Denmark, Inc. and in the course and scope of his job at the time of his accident, stands in the shoes of his employer for purposes of uninsured motorist coverage under the policy issued by Reliance/United Pacific Insurance Company to Shop in Denmark, Inc.; and the Trial Court's dismissal of Reliance/United Pacific on the issue of coverage following the close of the plaintiff's case constituted reversible error.

3. Within three months after being brought into the present case, Aetna Casualty and Surety Company acknowledged that Daniel J. White was an insured under the policy issued to Shop in Denmark, Inc., that Charles Thames was at fault in causing the accident, and that Mr. Thames' fault caused Dan White damages in excess of one million dollars; therefore the Trial Court's judgment notwithstanding the jury's verdict which dismissed plaintiff's award of statutory penalties against Aetna Casualty and Surety Company constituted reversible error.

Plaintiff also filed an answer to Aetna's appeal contending that the trial court erred in directing verdicts in favor of Reliance and the State, in finding Daniel 49% at fault in causing the accident, and in granting Aetna's judgment notwithstanding the verdict.

By judgment dated August 18, 1989, this court consolidated the two appeals.

MOTION FOR MISTRIAL

Aetna contends that the trial court erred in refusing to grant its motion for mistrial. Aetna reasons that an alleged improper statement regarding plaintiff's pre-trial settlement with Thames made during plaintiff's opening statement tainted the jury's verdict.

The Louisiana Code of Civil Procedure does not expressly provide for mistrials, and the jurisprudence concerning motions for mistrial in civil cases is limited. Generally, mistrials are properly granted because of some fundamental failure in the proceeding. Searle v. Travelers Insurance Company, 557 So.2d 321, 323 (La.App. 4th Cir.1990). Generally, a motion for mistrial in a...