Billiot v. Therrebonne Sheriff's Office

• Decision Date: 19 February 1999
• Docket Number: No. 98 CA 0246.,98 CA 0246.
• Citation: 735 So.2d 17
• Parties: Barell BILLIOT v. TERREBONNE PARISH SHERIFF'S OFFICE and Julien D. Boudreaux, IV.
• Court: Court of Appeal of Louisiana — District of US

Page 17

735 So.2d 17

Barell BILLIOT v. TERREBONNE PARISH SHERIFF'S OFFICE and Julien D. Boudreaux, IV.

No. 98 CA 0246.

Court of Appeal of Louisiana, First Circuit.

February 19, 1999.

Rehearing Denied April 14, 1999.

Writ Denied July 2, 1999.

COPYRIGHT MATERIAL OMITTED

Darryl J. Tschirn, La Jolla, CA, for plaintiff-appellee Barell Billiot.

Joseph J. Weigand, Jr., Weigand & Dodd, Houma, LA, for defendant-appellee Jerry J. Larpenter, Sheriff for the Parish of Terrebonne.

Robert B. Butler, III, Houma, LA, for defendant-appellee Julien D. Boudreaux, IV.

Charles Hanemann, J. Mark Graham, Kevin J. Webb, Henderson, Hanemann & Morris, Houma, LA, for defendant-appellant Alliance General Ins. Co.

BEFORE: LeBLANC, FOGG, and PARRO, JJ.

PARRO, J.

Alliance General Insurance Company (Alliance) appeals a trial court judgment maintaining a jury's verdict in this case arising out of an automobile accident that caused serious injury to Barell Billiot. We affirm.

FACTUAL BACKGROUND

Julien D. Boudreaux, IV was a deputy sheriff employed by Jerry Larpenter, Sheriff of Terrebonne Parish. Boudreaux was driving an unmarked sheriffs vehicle about noon on May 25, 1995, when he turned from a side road onto Highway 24, which consists of four lanes, two in the direction of Thibodaux and two in the direction of Houma, separated by a wide median. Unfortunately, he turned the wrong way on Highway 24 and headed south toward Houma in one of the northbound lanes. When Boudreaux saw cars approaching in his lane of travel, he realized he was going the wrong way, locked his brakes, and moved as far right as he could. One oncoming car managed to turn out of his path into the other lane. Billiot, who was directly behind that car, swerved slightly to the right, but had no real opportunity to avoid Boudreaux's vehicle. Boudreaux hit the front driver's side of Billiot's car, severely injuring Billiot. At the time of the accident, Boudreaux was on a two-day paid vacation. However, he was driving a sheriffs vehicle that was permanently assigned to him for his official and personal use and was en route to the sheriffs motor pool to have the car washed and serviced.

Sheriff Larpenter participated in the Louisiana Sheriffs' Association Risk Pool (LaSHARP), a pool created under the auspices of the Louisiana Sheriffs' Association to spread certain risks and provide risk management. Although technically not an insurer, LaSHARP functioned as a primary insurer, in that it was obligated to indemnify participating sheriffs for the first $100,000 of damages resulting from any automobile accident. LaSHARP insured the participating sheriffs under a policy form comparable to a business automobile liability insurance policy, which covered all scheduled automobiles driven with the permission of the insured sheriffs. These vehicles were covered at all times, whether they were being used for official or personal business. The LaSHARP policy specifically covered the car assigned to and driven by Boudreaux when this accident occurred.

Along with the other sheriffs in the association, Sheriff Larpenter had also purchased an excess automobile liability policy issued to his office through LaSHARP by Alliance. This policy had limits of $900,000 over the underlying $100,000 provided by LaSHARP. Alliance denied coverage for Boudreaux's accident, contending he did not meet its policy's definition of "insured," because he was not acting within the scope of his employment duties when the accident occurred.

Billiot sued Boudreaux, Sheriff Larpenter, LaSHARP, and Alliance. Before trial, LaSHARP paid $100,000 to or on behalf of Billiot, and was dismissed from the litigation. The claims against the sheriff were reserved for resolution by the court, and the remaining claims were tried to a jury. The jury found Boudreaux was 100% at fault and awarded Billiot a total of $743,-114.74 in damages. The jury also found Boudreaux was in the scope of his employment duties when the accident occurred, and therefore there was coverage under the Alliance policy. Although it also found Alliance was in bad faith in dealing with Billiot, the jury found no bad faith damages were suffered and made no award for this claim. The court found Sheriff Larpenter was not liable and dismissed Billiot's claims against him.¹ Judgment was rendered accordingly. Alliance's motion for new trial and/or judgment notwithstanding the verdict was denied and Alliance appealed.

COMPARATIVE NEGLIGENCE OF BILLIOT

In two of its assignments of error, Alliance addresses the comparative negligence of Billiot, claiming the jury's finding that Billiot was not negligent was tainted by incomplete jury instructions and is manifestly erroneous. Alliance contends the court should have instructed the jury that speeding gives rise to a presumption of negligence and that, if the jury found Billiot was speeding, the burden shifted to him to rebut the presumption of comparative negligence. Arguing that this incomplete jury instruction interdicted the jury's finding, Alliance suggests this court should review this issue de novo and decide the issue of comparative negligence.

The standard of appellate review of the factual findings of a jury is a two-part test: 1) the appellate court must find from the record there is a reasonable factual basis for the finding of the jury, and 2) the appellate court must further determine that the record establishes that the finding is not clearly wrong (manifestly erroneous). Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Factual findings should not be reversed on appeal absent manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). If the trial court or jury's 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. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Consequently, when there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Mitchell v. State Farm, 94-0548 (La.App. 1st Cir. 3/3/95), 652 So.2d 652, 655, writs denied, 95-0767 and 95-0770 (La.4/28/95), 653 So.2d 1180.

However, when the jury verdict is based on instructions which were faulty in a critical regard, the verdict is tainted and is not entitled to a presumption of regularity. Stovall v. Shell Oil Co., 577 So.2d 732, 738 (La.App. 1st Cir.), writ denied, 582 So.2d 1309 (1991). The general rule, first detailed in Gonzales v. Xerox Corp., 320 So.2d 163 (La.1975), is that where an erroneous jury instruction is given that constitutes reversible error, the jury decision should be thrown out and the appellate court should undertake a de novo review of the record and implement its own judgment based on the evidence. Odom v. Colonel Sanders Kentucky Fried Chicken, 93-1084 (La.App. 1st Cir. 4/8/94), 636 So.2d 1027, 1028.

In a jury trial, the judge is not required to give the instructions submitted by either party; however, the trial judge is obligated to give instructions which properly reflect the law applicable in light of the pleadings and facts in each case. Adequate instructions are those instructions which fairly and reasonably point out the issues presented by the pleadings and evidence and which provide correct principles of law for the jury's application to the facts. Haydel v. Hercules Transport, Inc., 94-1246 (La.App. 1st Cir. 4/7/95), 654 So.2d 418, 429, writ denied, 95-1172 (La.6/23/95), 656 So.2d 1019. An appellate court must exercise great restraint before overturning a jury verdict on a suggestion that the jury instructions were so erroneous as to be prejudicial. Hurts v. Woodis, 95-2166 (La.App. 1st Cir. 6/28/96), 676 So.2d 1166, 1173.

The trial court charged the jury on the defense of comparative fault, quoting Civil Code article 2323 and explaining Louisiana's law that substandard conduct of injured persons, which contributes to their own injury, will reduce their recovery, but not bar it entirely. Further instructions included the following:

Comparative fault is fault on the part of the person injured, which cooperates in some degree with the negligence of another, and helps to bring about an injury, death or loss. By the defense of comparative fault, the defendants in effect allege that even though he (sic) may have committed some negligent act or omission which was one of the causes of the accident, the plaintiff, by his own fault (sic) to use ordinary care under the circumstances for his own safety, at the time and place in question, was himself a legal cause of any injuries and/or death and/or loss and damages the plaintiff may have suffered.

* * * * * *

The burden is on the defendant alleging comparative fault to prove any fault of the plaintiff. The defendant has the burden to establish by a preponderance of the evidence that the plaintiff in this case was at fault and that this fault contributed to the injuries and damages he may have sustained.

The jury interrogatory on this issue asked:

Was the accident caused by the negligence of Barell Billiot, that is, was his conduct below the standard of care to provide for his own safety, and thus, was Barell Billiot at fault and a legal cause of his own damages?

The unanimous response of the jury was, "No."

Alliance suggests the evidence is undisputed that Billiot was speeding at the time of the accident, and therefore the jury should have been charged that this statutory violation gives rise to a presumption of negligence and a shift in the burden of proof. The facts adduced at trial bearing on Billiot's negligence reveal the speed limit at the accident site was 45 miles per hour. One witness testified Billiot was speeding as he approached the accident site. Kenneth Dupaty stated he was traveling northbound on Highway 24 and had reached a speed of 55 miles per hour in the left lane...