Brannon v. Shelter Mut. Ins. Co.

• Decision Date: 18 May 1987
• Docket Number: No.86-C-2386,86-C-2386
• Citation: 507 So.2d 194
• Parties: Dorothy Couvillion BRANNON v. SHELTER MUTUAL INSURANCE COMPANY and Succession of Anna Joyce Meche Carriere through her appointed Provisional Administrator, Uallen J. Carriere, Jr.
• Court: Louisiana Supreme Court

Page 194

507 So.2d 194

Dorothy Couvillion BRANNON v. SHELTER MUTUAL INSURANCE COMPANY and Succession of Anna Joyce Meche Carriere through her appointed Provisional Administrator, Uallen J. Carriere, Jr.

No.86-C-2386.

Supreme Court of Louisiana.

May 18, 1987.

Rehearing Denied June 18, 1987.

Jerold Edward Knoll, Knolls, Roy & Spruill, Marksville, for applicant.

E. Gregory Voorhies, Voorhies & Labbe, Lafayette, for respondent.

DIXON, Chief Justice.

The issue in this case is whether defendants sustained their burden of proving the affirmative defense of "sudden unconsciousness." Plaintiff, Mrs. Dorothy Brannon, was seriously injured when a car in which she was riding veered off the highway, crashing into a tree. The car was driven by Mrs. Anna Carriere and passengers included Mrs. Brannon seated in the front passenger seat, Ms. Julia Lingo seated behind the driver, and Mrs. Beatrice Couvillion seated behind Mrs. Brannon. The four ladies were enroute to an evening out in Lafayette and were engaged in conversation when Mrs. Carriere, who according to testimony had been driving within the speed limit on a clear night on a highway free of defects, drove off the west shoulder, through a ditch, hitting a hurricane fence and striking a tree. The car traveled 240 feet after leaving the road before coming to a stop at the tree. Mrs. Carriere, the driver, was killed, and the passengers were injured.

Mrs. Brannon sued Shelter Mutual Insurance Company as Mrs. Carriere's insurer and Mrs. Carriere's estate to recover damages for her injuries, alleging negligence. Mrs. Brannon has undergone numerous operations as a result of the accident and her medical expenses at the time of trial totaled $135,929.32. Totally disabled from working at the time of trial, she also required assistance in her daily living. Defendants asserted the complete affirmative defense of sudden unconsciousness and argued that Mrs. Carriere was not negligent due to her unforeseeable sudden loss of consciousness over which she allegedly had no control. The trial judge recognized this defense and ruled in defendants' favor. The Third Circuit Court of Appeal affirmed, 496 So.2d 1354 (La.App. 3d Cir.1986), holding that the affirmative defense of sudden unconsciousness must be proved by a preponderance of the evidence, rather than by "clear and convincing" evidence as asserted by Mrs. Brannon, and that defendants had sustained this burden. The court of appeal also found no merit to Mrs. Brannon's argument that the trial court erred by not allowing her to introduce evidence in cross-examination regarding an insurance settlement allegedly entered into by the defendant insurer and Mrs. Couvillion and Ms. Lingo. Mrs. Brannon appealed, and we granted writs.

In the past, Louisiana appellate courts have recognized that sudden or momentary loss of consciousness while driving is a complete defense to an action based on negligence if such loss of consciousness was not foreseeable. Martino v. Aetna Casualty & Surety Co., 351 So.2d 204 (La.App. 4th Cir.1977), writ denied 353 So.2d 1048 (La.1978); Shine v. Houston Fire & Casualty Insurance Co., 292 So.2d 341 (La.App. 2d Cir.1974); Reliance Insurance Co. v. Dickens, 279 So.2d 234 (La.App. 2d Cir.1973); Prejean v. Hanover Insurance Co., 233 So.2d 606 (La.App. 3d Cir.1970), writ refused 256 La. 256, 236 So.2d 32 (1970); Dull v. Employers Liability Assurance Corp., 233 So.2d 43 (La.App. 2d Cir.1970); Deason v. State Farm Mutual Automobile Insurance Co., 209 So.2d 576 (La.App. 3d Cir.1967); Dean v. Orgeron, 195 So.2d 150 (La.App. 1st Cir.1967); and Livaudais v. Black, 13 La.App. 345, 127 So. 129 (Orl.App.1930). ¹

In support of her argument, Mrs. Brannon cites two automobile collision cases, Reliance Insurance Co. v. Dickens, supra, and Dull v. Employers Liability Assurance Corp., supra, where the Second Circuit Court of Appeal clearly stated that the affirmative defense of sudden or momentary loss of consciousness must be established by clear and convincing evidence. In opposition, the defendants argue that C.C.P. 1005, which requires the special pleading of an affirmative defense, does not require that an affirmative defense must be proved by clear and convincing evidence. ² Instead, they point to several cases in which the courts of appeal held that the party asserting an affirmative defense bears the burden of proving such defense by a preponderance of the evidence. Defendants cite Confederate Welding & Safety Supply v. Bank of the Mid-South, 458 So.2d 1370 (La.App. 2d Cir.1984), writ denied 462 So.2d 1264 (La.1985), a case in which the court of appeal stated that the affirmative defenses of laches and estoppel must be proved by a preponderance of the evidence. Defendants also cite McDonald v. Champagne, 340 So.2d 1025 (La.App. 1st Cir.1976) and Crescent Cigarette Vending Corp. v. Toca, 271 So.2d 53 (La.App. 4th Cir.1972), where the courts of appeal stated that the party who asserts an affirmative defense (in these cases, compensation and extinguishment, respectively) must prove such defense by a preponderance of the evidence. No cases have been cited by defendants which have decided the burden of proof in "sudden loss of consciousness" instances.

The defense of sudden unconsciousness is very similar to a defense to a negligence claim at one time recognized in our law: latent brake defect. Like sudden unconsciousness, latent brake defect was a complete defense to an action based on negligence. In both situations, the defendant driver could not be held to be negligent for an unforeseeable "defect," be it in the brake line or in one's own body, that would cause damage to another. In the latent brake defect cases, the courts held the party asserting such a defense to a very high burden of proof. In Sentry Insurance Co. v. Thomas, 360 So.2d 268, 269 (La.App. 4th Cir.1978), the court stated:

"Louisiana courts have recognized a jurisprudential rule that in order for latent defects to constitute a valid defense, the proof must be so strong that it excludes any other reasonable hypothesis with reference to the cause of accident except that it resulted solely from the alleged defects, and that it must establish that the driver was not aware of the defects and that the defects could not reasonably have been discovered and remedied by a proper inspection. See Metzger v. Scott, 244 So.2d 671 (La.App. 4th Cir.1971); Davis v. Logarbo, 346 So.2d 306 (La.App. 4th Cir.1977)...."

See also Kasperski v. Patterson Services, 371 So.2d 1254, 1257 (La.App. 3d Cir.1979), writ denied 373 So.2d 530 (La.1979). In Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), this court considered plaintiff's case against a driver who struck plaintiff's car from the rear. In discussing the propriety of the jury instructions, we referred to Cartwright v. Firemen's Insurance Co. of Newark, N.J., 254 La. 330, 223 So.2d 822 (1969), a latent brake defect case, and quoted at 1334 from the Third Circuit Court of Appeal opinion in that case:

" '[H]owever, for latent defects to constitute a valid defense, the proof must be exceptionally strong so as to satisfy certain jurisprudential requirements.' "

We also made reference to the burden of proof discussion contained in the decision of Keck v. Yocum, 250 So.2d 468, 469 (La.App. 3d Cir.1971), which followed Cartwright, supra:

" 'In order for latent defects to constitute a valid defense, the proof must be strong enough to exclude any other reasonable hypothesis as to the cause of the accident except that it resulted from the alleged defects. Cartwright v. Firemen's Insurance Company of Newark, New Jersey, 213 So.2d 154 (La.App. 3rd Cir., 1968), affirmed at 254 La. 330, 223 So.2d 822 (1969); Towner v. Milligan, 234 So.2d 500 (La.App. 3rd Cir., 1970); Delahoussaye v. State Farm Mutual Automobile Insurance Co., 202 So.2d 287 (La.App. 4th Cir., 1967).' "

A high burden of proof is also required of the defendant driver who leaves his own lane and collides with another car in its correct lane of traffic. In this case, the driver must show by clear and convincing evidence that his sudden presence in the opposite lane was due to unexpected and unforeseen circumstances over which he had no control. Rizley v. Cutrer, 232 La. 655, 95 So.2d 139 (1957). In Simon v. Ford Motor Co., 282 So.2d 126, 133 (La.1973), we quoted from Rizley v. Cutrer, supra, the rationale underlying this legal principle:

"The trespassing motorist 'having caused the accident by leaving his own traffic lane, is presumed guilty of negligence and the onus rested on him to demonstrate that the accident resulted from such a state of unforeseeable circumstances beyond his control (and to which he did not contribute), that he could not extricate himself, despite the efficient use of all protective measures at his command.... We say this because it seems only reasonable to resolve that a motorist owes to the traveling public the duty of remaining in his own lane of traffic and, when he undertakes to enter the lane devoted to approaching traffic, he must be held strictly accountable for all damages resulting therefrom unless he clearly exhibits that his conduct in no wise contributed to the accident. By this, of course, we do not mean that such a motorist is the insurer of the safety of those injured in an accident such as the one in the instant case but only that, in order to be exonerated, he must establish his freedom from all fault by convincing proof.' (Italics ours.)"

See also Johnigan v. State Farm Mutual Automobile Insurance Co., 345 So.2d 1277, 1279 (La.App. 3d Cir.1977).

As in the latent brake defect and lane crossing cases, defendants in sudden unconsciousness cases should be held to a higher burden of proof than by a mere preponderance of the evidence. The party asserting the defense desires to escape liability by laying the...