Courmier v. Travelers Ins. Co.

• Decision Date: 09 April 1986
• Docket Number: No. 85-81,85-81
• Citation: Courmier v. Travelers Ins. Co., 486 So.2d 243 (La. App. 1986)
• Parties: Barbara COURMIER, et al., Plaintiffs-Appellees, v. TRAVELERS INSURANCE CO., et al., Defendants-Appellants. 486 So.2d 243
• Court: Court of Appeal of Louisiana

Page 243

486 So.2d 243

Barbara COURMIER, et al., Plaintiffs-Appellees, v. TRAVELERS INSURANCE CO., et al., Defendants-Appellants.

No. 85-81.

486 So.2d 243

Court of Appeal of Louisiana Third Circuit.

April 9, 1986.

Michael Hantel, New Orleans, for defendants-appellants.

Thompson & Sellers, Roger C. Sellers, Rebecca Kirk, Abbeville, for plaintiffs-appellees.

Before GUIDRY, FORET and HOOD, ¹ JJ.

GUIDRY, Judge.

This is a suit for damages for personal injuries sustained by the plaintiff, Barbara Courmier, when a collision occurred as she was turning left while defendant, Ricky L. Huval, was simultaneously attempting to pass in the left hand lane. This suit was filed by Barbara J. Courmier against Ricky L. Huval (Huval), the driver of the passing vehicle, Schlumberger Offshore Services (Schlumberger), a division of Schlumberger, Limited, the employer of the defendant driver, and Travelers Insurance Company (Travelers), the insurer of Schlumberger and Huval. Another suit was filed, as a result of this accident, by Lucille Runnion, individually and as provisional tutrix of Beverly Courmier, a minor child and a passenger in the left turning vehicle, against the same three defendants, plus State Farm Mutual Automobile Insurance Company, the insurer of Barbara Courmier. The two suits were consolidated. As a result of a settlement on the day of trial, State Farm was dismissed with full prejudice from the Runnion suit by joint motion of Lucille Runnion and State Farm, with Lucille Runnion reserving her rights against the other defendants.

The trial court concluded that the accident was caused by the concurrent negligence of Ricky Huval and Barbara Courmier, with Huval being attributed 90% of the fault and Courmier 10% of the fault. The trial court then awarded Barbara Courmier $193,399.53 for past and future loss of income; $75,000.00 in general damages; and, $14,294.66 in special damages, for a total of $282,694.19. This total amount was then reduced by her 10% comparative negligence, and further reduced by $2,023.50 in advances made by Travelers for a net recovery of $252,401.28, together with legal interest from date of judicial demand until paid. Judgment was also rendered in the companion matter in favor of Lucille Runnion, individually and as provisional tutrix of the minor child, Beverly Courmier, and against Huval, Schlumberger and Travelers for $13,038.26, together with legal interest from the date of judicial demand until paid. This award included $8,000.00 in general damages and $5,038.26 in special damages. Beverly Courmier's award was not reduced, in spite of her settlement with State Farm.

Defendants suspensively appealed the judgments in both cases. Barbara Courmier, answered the appeal requesting an increase in the award to her for future loss of wages. Lucille Runnion, did not answer the defendants' appeal.

We will decide all issues in both cases in this opinion but render a separate decree in the companion matter entitled Runnion, et al v. Travelers Insurance Co., et al, 486 So.2d 251 (La.App. 3rd Cir.1986).

The appellants present three issues for our review:

1. Did the trial court err in assessing 10% negligence to plaintiff, Barbara Courmier, and 90% negligence to defendant, Ricky Huval?

2. Was the award of damages to Barbara Courmier excessive?

3. Was the award of damages to Lucille Runnion, individually and as provisional tutrix of her minor child, Beverly Courmier, excessive?

FACTS

The trial judge set forth his findings of fact in well considered reasons for judgment. We consider the issues presented for review in light of these factual findings which are amply supported by the record and which we are pleased to adopt as our own.

"Having heard the testimony of the witnesses, and after reviewing the evidence and exhibits presented at trial, it is uncontraverted by the parties and the Court finds that on September 4, 1982, plaintiffs, Barbara Courmier and her thirteen year old minor sister Beverly Courmier, were involved in an automobile accident with defendant, Ricky L. Huval. Barbara Courmier was driving a 1977 AMC Pacer, belonging to her mother, Lucille Runnion, and Beverly Courmier was the only passenger. Defendant Ricky Huval was driving a 1980 GMC five ton flatbed truck owned by his employer, Schlumberger, and his brother, Danny Lee Huval, was the only passenger. At the time of the accident, Ricky Huval was driving the truck while in the course and scope of his employment with Schlumberger.

The accident occurred at approximately 11:00 a.m. on La. Hwy. 82 approximately fifteen feet south of the intersection with La. Hwy. 691. That intersection is near the end of a double S-curve in Hwy. 82 and is controlled by a flashing yellow light in favor of Hwy. 82. The area is marked as a "no passing zone" by double yellow lines on Hwy. 82 before and after the intersection. Additionally, a school is located adjacent to the intersection and there is a school zone sign with a flashing yellow light on Hwy. 82.

Immediately prior to the accident both vehicles were traveling south on Hwy. 82. Ricky Huval testified, and the evidence establishes, that before reaching the intersection he crossed the double yellow lines in an attempt to pass plaintiff's vehicle. The accident occurred when Barbara Courmier attempted to make a left turn just past the intersection into the parking lot of Mouton's Grocery Store. The defendant applied his brakes, leaving approximately 159 feet of skid marks, in an attempt to avoid hitting plaintiff's vehicle. However, when Barbara Courmier had nearly completed her left turn and the vehicle's front tires were off the road surface and on the gravel parking area, the front left fender of defendant's truck struck plaintiff's vehicle on the driver's side rear panel, approximately at the left rear tire, and left rear bumper.

Still at issue are questions concerning the cause of the accident, the extent of plaintiffs' injuries, and damages, if any.

Barbara Courmier and Ricky Huval gave conflicting testimony concerning the cause of the accident. The plaintiff testified that she checked her side view mirror and rear view mirror, and put on her left turn signal before reaching the intersection. Immediately prior to beginning her left turn she again checked both rear view mirrors and at no time did she see any other vehicle behind her. She stated that she had almost completed her left turn when the accident occurred.

Having heard the testimony of all witnesses, and after reviewing the photographs and other evidence submitted at trial, the Court finds that the accident was caused in part by the negligence of defendant, Ricky L. Huval, and in part by the negligence of plaintiff, Barbara J. Courmier. The Court makes the following factual findings concerning the accident. As defendant came around the second S-curve on Hwy. 82, he saw plaintiff's vehicle at a distance of approximately three to five city blocks. Ricky Huval and his brother Danny L. Huval testified that at that time they saw plaintiff's right turn signal on. State Police Trooper Kenneth Langlinais investigated the accident on September 4, 1982, and testified that defendant informed him that plaintiff's right turn signal was on. Additionally, the Trooper stated that, when questioned, Barbara Courmier could not remember whether her right or left turn signal had been on. The Court finds that plaintiff had activated her right turn signal and, when defendant first saw plaintiff's vehicle, he observed the Pacer proceeding at a very slow rate of speed, in an indecisive manner. The defendant did not know whether the Pacer was going to turn right as its turn light indicated, turn left, or continue straight ahead. Mr. Huval testified that he traveled Hwy. 82 frequently and was very familiar with the intersection of Hwy. 82 and Hwy. 691. He was aware of the "no passing zone" as indicated by the double yellow lines, as well as the flashing yellow light above the intersection and the school zone sign and was aware that it was a busy intersection. The Court accepts Mr. Huval's testimony and finds that defendant had sufficient time and could have stopped his truck behind plaintiff's vehicle at the intersection. However, defendant crossed the double yellow lines in an attempt to pass plaintiff's vehicle despite the indecisive movement of plaintiff's car.

As Barbara Courmier approached the intersection with her right turn signal on, she looked in her side view and rear view mirrors and did not see defendant's truck. Immediately prior to beginning her left turn she again checked both mirrors and failed to see defendant's truck approaching from the rear. The plaintiff began her left turn when defendant was approximately 40 to 50 yards behind her in the left lane. Barbara Courmier had nearly completed her left turn when defendant's truck struck the Pacer at the left rear tire and left rear bumper."

ISSUE NO. 1

The defendants argue that the trial court's assessment of negligence, 90% to the truck driver and 10% to Barbara Courmier, was contrary to the law and evidence. We agree.

A trier's findings as to percentage of fault are factual and, in absence of clear or manifest error or an abuse of discretion, must be upheld on appeal. Triangle Trucking Co. v. Alexander, 451 So.2d 638 (La.App. 3rd Cir.1984).

The facts in this case, as found by the trial court and which we have adopted clearly indicate that Barbara Courmier's share of the negligence was greater than 10%. Barbara Courmier turned left, although she had for some time previous thereto activated her right turn signal which indicated her intention to turn right. Additionally, she failed to see the truck in the passing lane just prior to commencement of her left turn, although, as the trial court determined, the truck had pre-empted the left or passing lane at least 159 feet behind plaintiff's vehicle.

Judicial interpretations of LSA-R.S. 32:104 A ² have made it extremely clear...