Bernard v. BFI Waste Serv., LLC

• Decision Date: 21 July 2021
• Docket Number: 20-636
• Citation: 325 So.3d 415
• Parties: Tarlton BERNARD and Addison Provost v. BFI WASTE SERVICE, LLC, Old Republic Insurance Company, Permanent General Assurance Corporation, Harold Comeaux II, and Van R. Davis
• Court: Court of Appeal of Louisiana — District of US

325 So.3d 415

Tarlton BERNARD and Addison Provost

v.BFI WASTE SERVICE, LLC, Old Republic Insurance Company, Permanent General Assurance Corporation, Harold Comeaux II, and Van R. Davis

20-636

Court of Appeal of Louisiana, Third Circuit.

July 21, 2021

Marcus J. Plaisance, Mark D. Plaisance, Plaisance Law, LLC, P. O. Box 1123, Prairieville, LA 70769, (225) 772-5297, L. Clayton Burgess, 605 West Congress Street, Lafayette, LA 70501, (337) 234-7573, Kreig A. Breaux, Landry, Watkins, Repaske & Breaux, P. O. Drawer 12040, New Iberia, LA 70562, (337) 364-7626, COUNSEL FOR APPELLANT: TARLTON BERNARD

Bret C. Beyer, Sr., Megan E. Réaux, Hill & Beyer, APLC, 101 La Rue France, Suite 502, Lafayette, LA 70508, (337) 232-9733, COUNSEL FOR APPELLEES: BFI Waste Services, LLC, Harold Comeaux, II, And Old Republic Insurance Company

Robert Guillory, 556 Jefferson Street #500, Lafayette, LA 70501, (337) 234-0500, COUNSEL FOR APPELLEE: Addison Provost

Court composed of Billy Howard Ezell, Van H. Kyzar, and Jonathan W. Perry, Judges.

PERRY, Judge.

In this suit for damages, Tarlton Bernard ("Mr. Bernard") appeals the jury's assessment of comparative fault, as well as its determination of damages, contending Vernon Davis ("Mr. Davis"), the driver of the car in which Mr. Bernard was a passenger, should have been found free of fault, and the damages awarded for lost wages are too low. Through an answer to the appeal,¹ BFI Waste Services, LLC ("BFI"), Harold Comeaux, II ("Mr. Comeaux"), and Old Republic Insurance Company ("Old Republic") (collectively referenced as "Defendants") contest the jury's assessment of comparative fault, as well as its determination of damages, contending the jury erred in casting Mr. Comeaux with any fault, and, alternatively, that the jury's award of general damages was excessive. For the following reasons, we affirm.

FACTS AND PROCEDURE

On Wednesday, March 5, 2014, the day after Mardi Gras, an accident occurred at approximately 1:30 a.m. when a vehicle driven by Mr. Davis struck a BFI solid waste collection truck driven by Mr. Comeaux. At the time of the accident, Mr. Bernard was a front seat passenger and Addison Provost ("Mr. Provost")² was the rear seat passenger. It was conceded that at the time of the collision Mr. Comeaux was in the course and scope of his employment with BFI. Old Republic insured Mr. Comeaux and BFI at the time of the accident.

The accident occurred in New Iberia in an area where East St. Peter Street runs as a three-lane, one-way street. Mr. Comeaux was traveling to collect waste in a dumpster behind Winn-Dixie; this task required him to make a left-hand turn from East St. Peter Street. The jury heard disputed versions of how the accident occurred, and that will be addressed more fully later in this opinion. Suffice it to say, a collision happened in the far-left lane of the one-way street between the BFI truck and the vehicle in which Mr. Bernard was a passenger.

Mr. Bernard filed suit against the Defendants, alleging that he injured his low back in the accident; this injury ultimately resulted in lumbar fusion surgery at the L4-5 level. He sought damages for past medical expenses, future medical expenses, past pain and suffering, future pain and suffering, past mental anguish, future mental anguish, past and/or future lost wages, and loss of enjoyment of life.

After a four-day trial, the jury assessed fault forty percent (40%) to the Defendants and sixty percent (60%) to Mr. Davis. It then awarded damages in the following categories: $109,410.10 (past medical expenses); $5,000.00 (future medical expenses); $200,000.00 (past pain and suffering); $50,000.00 (future pain and suffering); $35,000.00 (past mental anguish); $15,000.00 (future mental anguish); $238,176.74 (past and/or future lost wages); and $100,000.00 (loss of enjoyment of life). These categories of damages totaled $752,586.84.

Approximately three months post-trial, Mr. Bernard objected to the proposed judgment, contending that the jury erroneously applied comparative fault when it calculated the total damage award. After conducting a hearing, the trial court denied Mr. Bernard's motion to recall, reconvene, and allow the jury to correct the alleged error. Thereafter, in compliance with the jury's assessment of comparative fault, the trial court signed the judgment casting the Defendants with damages of $301,034.74, forty percent of the jury's total damages, with legal interest thereon from the date of judicial demand until paid and cast each party with their own costs of court.

Subsequently, the trial court denied Mr. Bernard's post-trial motions for new trial, judgment notwithstanding the verdict, and additur. The trial court also denied the Defendants’ motion for remittitur or new trial. This appeal followed.

Mr. Bernard presents four assignments of error:

1. A left-turning motorist has a duty to ensure he can execute the turn from his lane without danger to other motorists. But Harold Comeaux straddled the left lane and middle lane, and without determining whether he could safely do so, executed a wide left turn striking Van Davis's vehicle. Because Comeaux's actions were in complete disregard for the safety of Davis, a following motorist who was properly in the left lane, the jury erred by not finding Comeaux 100 percent at fault.

2. A jury commits legal error when it deviates from the jury instructions and discounts any damages award by its assessment of comparative fault. Because the jury awarded only 40 percent of the "gross" damages – calculated by reducing the damages requested by the jury's assessment of 40 percent liability to Comeaux—it committed legal error which the trial court should have corrected.

3. A stipulation removes an issue from controversy and removes the need for proving a particular fact at issue. The parties stipulated that Bernard's lost past and future wages fell within a definite range of at least $921,625.06 and at most $1,272,509.09. Because the jury awarded less than the low end of the range, even in light of its erroneous reduction, it abused its discretion.

4. Post-trial motions of JNOV, new trial, or additur are procedural vehicles to cure trial errors. Because the trial court had avenues, which it chose not to invoke, to cure the jury's erroneous reduction of damages by its assessment of liability, the trial court abused its discretion and committed legal error by not granting either a new trial, JNOV, or alternatively entering an additur.

In addition, the Defendants have answered the appeal. In their answer to the appeal,³ the Defendants state:

[T]he defendants-appellees, are aggrieved by the Judgment of the lower Court, and desire to answer the plaintiff-[appellant's] appeal on the grounds that the jury's liability finding and award of general damages, as memorialized in the Judgment, were erroneous. The defendants-appellees seek amendment of the jury's liability finding and award of general damages.

MOTION TO STRIKE DEFENDANTS’ ANSWER TO THE APPEAL

Mr. Bernard has filed a motion to oppose or strike the Defendants’ answer to the appeal. Because the issues presented in the Defendants’ answer share elements raised in Mr. Bernard's appeal, we will first address his motion to strike.

Mr. Bernard contends that although the Defendants timely filed their answer to the appeal, the answer is deficient. He contends: (1) the answer merely seeks a general amendment of the jury's liability finding and award of general damages; (2) La.Code Civ.P. art. 2133 requires specific complaints defining the relief demanded; and (3) because the Defendants’ answer to the appeal is not specific and does not contain assignments of error,⁴ this court should deny or strike the answer.

Louisiana Code of Civil Procedure Article 2133(A) provides, in pertinent part:

An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such cases, he must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record whichever is later. The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer.

Essentially, an "answer to an appeal" is itself an appeal, except that the answer must specifically state the relief requested, while an appeal usually seeks review of all parts of the judgment. State ex rel. Guste v. Pickering, 365 So.2d 943 (La.App. 4 Cir.), writ denied, 366 So.2d 556 (La.1978) ; see also Grady v. Alfonso, 315 So.2d 832 (La.App. 4 Cir. 1975).

Generally, an answer to an appeal operates as an appeal only of those parts of the judgment complained about in the answer. Liedtke v. Allstate Ins. Co., 405 So.2d 859 (La.App. 3 Cir.), writ denied, 407 So.2d 748 (La.1981) ; City Savings Bank & Trust Co. v. Johnson, 286 So.2d 131 (La.App. 3 Cir. 1973). However, the courts often interpret statements in an answer liberally to cover issues the appellee contests in view of the public policy favoring appeals. Liedtke, 405 So.2d 859.

Steven R. Plotkin, Louisiana Civil Procedure, Art.2133, § 1.

In Liedtke, Judge Stoker, writing for this court, stated that the language in an answer to an appeal should be given a broad and liberal construction rather than a restrictive one. As reflected in Liedtke, 405 So.2d at 870, the defendants answered the plaintiffs appeal stating, "[t]hat they are aggrieved by the finding of liability and the award of damages in the above-described judgment." Addressing that language, the Liedtke court ruled that this was sufficient to raise the question of whether the contributory negligence of the minor son of the plaintiff father (Liedtke) barred the recovery by the father of the minor son's medical expenses for which the answering defendants had been held responsible, i.e., the general...