Bishop v. Shelter Ins. Co.

• Decision Date: 12 December 1984
• Docket Number: No. 83-1060,83-1060
• Citation: 461 So.2d 1170
• Parties: Peggy Gruber BISHOP, Plaintiff-Appellant-Appellee, v. SHELTER INSURANCE COMPANY, et al., Defendants-Appellants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 1170

461 So.2d 1170

Peggy Gruber BISHOP, Plaintiff-Appellant-Appellee, v. SHELTER INSURANCE COMPANY, et al., Defendants-Appellants-Appellees.

No. 83-1060.

Court of Appeal of Louisiana, Third Circuit.

Dec. 12, 1984.

Rehearing Denied Jan. 15, 1985.

J. Edward Knoll of Knoll, Roy & Spruill, Marksville, for plaintiff-appellee-appellant.

Bolen & Erwin, Ltd., James A. Bolen, Jr., Alexandria, for defendant-appellant-appellee.

Gold, Little, Simon, Weems & Bruser; Sam N. Poole, Jr., Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for defendants-appellees-appellants.

Robert E. Tillery, Baton Rouge, Ben C. Bennett, Jr., Marksville, John W. King, Baton Rouge, for defendants-appellees.

Before FORET and CUTRER, JJ., and CULPEPPER, Judge Pro Tempore.

CULPEPPER, Judge Pro Tem.

The plaintiff, Peggy Gruber Bishop, seeks damages for her own personal injuries and for the wrongful death of her husband, William R. Bishop, arising out of an automobile accident which occurred at about 2:15 a.m. on December 13, 1981 on U.S. Highway 71 approximately four miles south of Bunkie, Louisiana. Plaintiff and her husband were passengers on the rear seat of a Pontiac Firebird being driven by the defendant, Mrs. Ollie McGhee. The McGhee vehicle was traveling in a northerly direction on this two-lane, two-way highway and collided in the south bound lane of traffic with a Mercury automobile being driven by the defendant, Eunice Edwards. Named as defendants are: (1) Mrs. Ollie McGhee, driver of the Pontiac, and her liability insurer, State Farm Mutual Automobile Insurance Company; (2) Eunice Edwards, driver of the Mercury, and his liability insurer, Shelter Insurance Company; (3) the Louisiana Department of Transportation and Development, on the theory that a cause of the accident was a defect in the shoulder of the highway which caused Ollie McGhee to lose control and spin across the highway into the path of the Edwards vehicle.

In a bifurcated trial beginning on August 29, 1983, a jury of 12 heard the case as to the individual defendants, and the judge heard the case as against the Louisiana Department of Transportation and Development. The jury found both vehicle drivers negligent and, under our comparative negligence law, attributed 10% of the fault to Eunice Edwards and 30% to Mrs. Ollie McGhee. The award of damages by the jury totaled $477,600. Following announcement of the jury verdict, the trial judge dictated written reasons finding no negligence on the part of the Louisiana Department of Transportation and Development because the plaintiff had failed to prove by a preponderance of the evidence that there was any defect in the shoulder of the highway. All parties appealed, except the Louisiana Department of Transportation and Development.

The substantial issues are: (1) Does the provision of LSA-R.S. 13:5105 prohibiting trial by jury of a suit against the State violate the equal protection provisions of the State or Federal Constitutions? (2) What are the applicable rules of appellate review in this bifurcated trial? (3) Was the jury clearly wrong in finding Eunice Edwards at fault? (4) Was the jury clearly wrong in finding Mrs. Ollie McGhee at fault? (5) Was the trial judge clearly wrong in finding no fault on the part of the Louisiana Department of Transportation and Development? (6) Did the trial judge err in refusing to allow the defendants to cross-examine plaintiff and her witnesses as to her remarriage and her present emotional condition? (7) Did the trial judge err in refusing to permit review by the jury of the limits of coverage of the insurance policies introduced into evidence by the defendants? (8) Did the trial judge err in submitting to the jury interrogatories as to twelve separate items of damages? (9) Did the trial judge err in not submitting to the jury the issue of any fault by the Department of Transportation and Development? (10) Did the trial judge err in refusing to give certain jury instructions requested by the plaintiff? (11) Were certain items of the awards either excessive or duplicative?

CONSTITUTIONALITY OF STATUTE PROHIBITING JURY TRIAL IN SUIT

AGAINST THE STATE

Plaintiff argues first that the provision of LSA-R.S. 13:5105 prohibiting jury trials in actions against the State or an agency thereof violates the equal protection provisions of the Louisiana and United States Constitutions. Plaintiff quotes at length from a dissenting opinion by Judge Redmann in Carter v. City of New Orleans, 327 So.2d 488 (La.App. 4th Cir.1976).

This constitutional issue was neither raised nor ruled upon in the trial court. Jurisprudence has established the general rule that an attack on the constitutionality of a state statute cannot be made in the appellate court where it has not been raised and adjudicated in the trial court. Ryals v. Home Insurance Company, 410 So.2d 827 (La.App. 3d Cir.1982), writs denied, 414 So.2d 375 and 376 (La.1982); Succession of Dupree v. Miller, 433 So.2d 372 (La.App. 3d Cir.1983), writ denied, 440 So.2d 732 (La.1983). We note one case, Crosby v. Crosby, 434 So.2d 162 (La.App. 5th Cir.1983) which, without discussion, held to the contrary in its original opinion, but the court granted a rehearing, after which the case was settled and dismissed as being moot, 442 So.2d 1248 (La.App. 5th 1983).

In the present case, we see no reason not to apply the general rule that attacks on the constitutionality of a state statute not urged in the trial court cannot be raised for the first time in the court of appeal. Therefore, we will not consider the constitutional issue.

RULES OF APPELLATE REVIEW IN THIS BIFURCATED TRIAL

In a bifurcated trial where the jury and the judge reach conflicting findings of fact and there is an appeal, the court of appeal should resolve these differences and render a single harmonized decision based upon the record as a whole. Moran v. Thornton, 341 So.2d 1135 (La.App. 1st Cir.1976), writ granted and case remanded to the Court of Appeal with instructions, 343 So.2d 1065 (La.1977), decision on remand, 348 So.2d 79 (La.App. 1st Cir.1977), writs refused, 350 So.2d 897, 898, 900 (La.1977); Bunkie Bank & Trust Company v. Avoyelles Parish Police Jury, 347 So.2d 1305 (La.App. 3d Cir.1977); Whittington v. Sowela Technical Institute, 438 So.2d 236 (La.App. 3d Cir.1983), writ denied, 443 So.2d 591, 592 (La.1983).

Plaintiff argues that where the jury and the judge make conflicting findings of fact in a bifurcated trial, the "manifest error rule" is inapplicable, and neither trier of fact is entitled to have greater weight accorded to its factual findings. There are court of appeal decisions applying this rule. Aubert v. Charity Hospital of Louisiana, 363 So.2d 1223 (La.App. 4th Cir.1978), writ denied 365 So.2d 242; and Williams v. City of New Orleans, 433 So.2d 1129 (La.App. 4th Cir.1983), writ not considered, 437 So.2d 1135 (La.1983). The Third Circuit Court of Appeal has stated the rule in a somewhat different way in Deville v. Town of Bunkie, 364 So.2d 1378 (La.App. 3d Cir.1978), writ denied, 366 So.2d 564 (La.1979), where the court considered the entire record and found the factual conclusions of the trial judge "more reasonable" than those of the jury.

Plaintiff argues that in the present case the finding of fact by the jury that Edwards was 10% at fault and Mrs. McGhee 30% necessarily implies that the Department of Transportation was 60% at fault, which conflicts with the finding of fact by the trial judge that the Department of Transportation was not at fault. Plaintiff points out that in his charge to the jury the trial judge instructed that the percentage of fault assigned to either one of the individual defendants or both combined could be less than 100%, but that only the judge could determine whether the State was negligent and the percentage thereof. Moreover, although the record before us does not show it, the jury apparently did make a penciled notation on its verdict form that 60% of the negligence was attributable to the Department of Transportation. When the jury verdict was handed to the judge he noticed this improper penciled notation and ordered it erased. From these arguments we recognize the jury's intention must have been to find 10% of the fault attributable to Edwards, 30% to Mrs. McGhee and 60% to the Department of Transportation.

However, regardless of the jury's intention, it did not, as a matter of law, have the right or the duty to determine whether the Department of Transportation was at fault and, if so, the percentage thereof. LSA-R.S. 13:5105 clearly provides that, "No suit against the state or a state agency or a political subdivision shall be tried by jury." Thus, as a matter of law, the jury verdict has no weight on the issue of the State's fault. Under this view, there is no conflict between the finding of fact by the jury and that by the judge on the issue of the State's fault. It follows that since there is no conflict between the triers of fact, there is no need for the Court of Appeal to harmonize in accordance with the jurisprudence discussed above. It also follows that in our appellate review of the facts found by the jury and the facts found by the trial judge the applicable rule will be the well established test of whether the trier of fact was clearly wrong.

Counsel for Eunice Edwards argues that the apparently inconsistent findings of fact with regard to the State's fault has such an effect on the apportionment of fault among the individual defendants that the manifest error (clearly wrong) rule should be inapplicable to this appeal. This is a respectable argument, but one which we need not answer, because, for the reasons expressed hereafter, we conclude that even applying the clearly wrong rule, the evidence was insufficient to find fault on the part of Eunice Edwards. We also ultimately conclude the trial judge was not clearly wrong in finding no fault on the part of the State. Additionally,...