Courville v. Allstate Ins. Co.

• Decision Date: 08 March 2017
• Docket Number: 16–557,16–556
• Citation: 215 So.3d 310
• Parties: Kodie J. COURVILLE, et ux. v. ALLSTATE INSURANCE COMPANY, et al. Efrem Ross v. Patricia A. Francis, et al.
• Court: Court of Appeal of Louisiana — District of US

215 So.3d 310

Kodie J. COURVILLE, et ux.

v.ALLSTATE INSURANCE COMPANY, et al.

Efrem Ross

v.Patricia A. Francis, et al.

16–556

16–557

Court of Appeal of Louisiana, Third Circuit.

March 8, 2017

M. Terrance Hoychick, A Professional Law Corporation, P. O. Drawer 391, Eunice, LA 70535–0391, (337) 457–9331, COUNSEL FOR PLAINTIFFS/APPELLEES: Kodie J. Courville, Brooke H. Courville

Edwin G. Preis, Jr., Edward F. Kohnke, IV, Catherine M. Landry, Preis PLC, P. O. Drawer 94–C, Lafayette, LA 70509, (337) 237–6062, COUNSEL FOR DEFENDANT/APPELLANT: Lexington Insurance Company

C. Shannon Hardy, John W. Penny, Jr., Penny & Hardy, A Professional Law Corporation, P. O. Box 2187, Lafayette, LA 70502, (337) 231–1955, COUNSEL FOR DEFENDANTS/APPELLEES: Allstate Insurance Company, Patricia Francis

L. Clayton Burgess, L. Clayton Burgess, APLC, 605 W. Congress St., Lafayette, LA 70501, (337) 234–7573, COUNSEL FOR DEFENDANT/APPELLEE: Efrem Z. Ross

Patricia J. Delpit, Johnson, Rahman & Thomas, Louisiana Workers' Compensation Corporation, P. O. Box 98001, Baton Rouge, LA 70898–8001, (225) 231–0899, COUNSEL FOR DEFENDANT/APPELLEE: Louisiana Workers' Compensation Corporation

Court composed of John D. Saunders, Elizabeth A. Pickett, and Van H. Kyzar, Judges.

SAUNDERS, Judge.

This case involves an automobile accident wherein two defendant drivers were traveling in the same direction on a two-lane highway. The accident happened when one of the two defendant drivers moved to the right side of the lane of travel while the other attempted to turn into a pharmacy parking lot located on the right. The two defendant drivers' vehicles struck one another and then hit the plaintiffs' vehicle that was occupied in the parking lot.

Prior to trial, a motion in limine was heard regarding the admissibility of pleadings in the plaintiffs' subsequent divorce proceedings. The trial court ruled that the pleadings' probative value was outweighed by the potential prejudice. Thus, it did not allow defendants to present the pleadings as evidence at trial. A writ was taken to this court on this exclusion, which this court denied.

After a jury trial, while deliberating, the jury requested to see plaintiffs' petition for damages. Even though the petition for damages was admitted into evidence at trial, the trial court denied the jury's request because it felt that the original petition without the amended petition would be prejudicial.

The jury found one of the two defendant vehicles involved in the accident to be 100% at fault. The insurance company of the vehicle found to be 100% at fault filed this appeal, requesting review of the trial court's exclusion of the pleadings from the plaintiffs' divorce proceedings, the allocation of fault, and the denial of the jury to view the plaintiffs' petition for damages.

FACTS AND PROCEDURAL HISTORY :

On November 18, 2008, Patricia Francis was driving on Louisiana Highway 89 (the Youngsville Highway) near its intersection with West Pinhook Road in Lafayette, Louisiana. Francis was followed by a truck attached to a gooseneck trailer driven by Efrem Ross who was in the course and scope of his employment with Whitco Supply, LLC.

Francis intended to turn right into a CVS Pharmacy parking lot to deliver her grandchild to the child's mother. The CVS Pharmacy is located at the corner of the Youngsville Highway and West Pinhook Road. Just after where Francis intended to make the right turn, the single lane of travel begins to branch into four lanes of travel.

When Francis attempted to make her right turn, she and Ross struck one another. The impact caused both Francis and Ross to leave the Youngsville Highway and travel into the CVS Pharmacy parking lot. Ross' vehicle then struck a vehicle occupied by Kodie Courville.

Kodie Courville, and his wife, Brooke Courville, filed suit against Francis and her insurer, Allstate Insurance Company. They also named as defendants: Ross, his employer, Whitco, and Whitco's insurer, Lexington Insurance Company. Kodie alleged that he sustained injuries as a result of the accident while Brooke brought a loss of consortium claim.

The Courvilles' petition for damages originally alleged that Francis was partially at fault for the accident. However, they amended their petition to assert that Ross was solely at fault for the accident but did not dismiss Francis and Allstate as defendants.

Prior to a jury trial, several motions were filed and decided by the trial court. Relevant to these proceedings is a motion in limine seeking to exclude allegations made by Brooke Courville in the Courvilles' divorce proceedings. The trial court granted the motion to exclude these divorce proceeding allegations. A writ was filed to this court regarding the exclusion of the evidence. This court denied the writ.

A jury trial began on January 25, 2016. During the trial, the original petition for damages filed by the Courvilles was admitted into evidence, and some testimony and arguments were presented as to why the Courvilles originally alleged that Frances had some fault in causing the accident, later amended their petition to allege that Francis was free from fault, but did not dismiss Francis or Allstate. After conclusion of closing arguments some days later, during deliberations, the jury requested to review the Courvilles' original petition for damages. The trial court denied the request on the basis that the original petition, without also reviewing the amended petition, would be more prejudicial than its probative value.

The jury returned a verdict finding Ross solely at fault for the accident. It awarded Kodie Courville in excess of $3,000,000.00 for his damages and $21,000.00 to Brooke Courville for her loss of consortium.

Lexington filed the appeal now before us. It alleges three assignments of error. The Courvilles answered the appeal and alleged two errors.

LEXINGTON ASSIGNMENTS OF ERROR :

1. The trial court erred in not allowing the jury to view the Petition for Damages when requested during deliberations which document had been admitted into evidence without objection.

2. The jury erred in finding Ross 100% liable for Appellees' alleged damages as Francis was negligent and the cause-in-fact of Appellees' alleged damages when she attempted to execute an improper right turn into the CVS parking lot in violation of Louisiana Revised Statutes 32:104 and 32:58 when she attempted to make a right turn without utilizing her mirrors, while inattentive and on her cell phone causing her to turn her vehicle into the side of the Ross truck located nearly parallel to her vehicle.

3. The trial court erred in not allowing Appellant to present evidence to the jury of the Courvilles' divorce proceedings resulting in excessive loss of consortium damages being awarded.

COURVILLES ASSIGNMENTS OF ERROR :

1. The general damages awarded by the jury for Kodie Courville's injuries were so low as to amount to an abuse of discretion.

2. The trial court erred in its refusal to allow introduction into evidence of other individuals working in the Non–Destructive Testing Industry and the amounts they earned in support of plaintiff's earning capacity loss claim. That legal error caused the plaintiff to suffer a loss in the award for future loss of earnings/and or earning capacity.

LEXINGTON ASSIGNMENT OF ERROR NUMBER ONE :

Lexington asserts that the trial court erred in not allowing the jury to view the Petition for Damages when requested during deliberations. We find no merit to this assertion.

Louisiana Code of Civil Procedure Article 1794 (emphasis added) states:

A. Jurors shall be permitted to take notes. The court shall provide the needed writing implements. Jurors may, but need not, take notes and such notes as are taken may be used during the jury's deliberations but shall not be preserved for review on appeal. The trial judge shall ensure the confidentiality of the notes during the course of the trial and the jury's deliberations. At each recess prior to jury deliberation, the court shall collect and maintain any and all notes made by each juror and upon reconvening, the court shall return to each juror his individual notes and shall cause the notes to be destroyed immediately upon return of the verdict.

B. The court may allow the jury to take with them any object or writing received in evidence, except depositions and except as otherwise provided in the Louisiana Code of Evidence.

"After giving notice to the parties, the court may have the requested testimony read to the jury and may permit the jury to examine the requested materials admitted into evidence." La.Code Civ.P.art. 1795(B)(emphasis added).

The standard of review applicable when determining whether a trial court properly allowed or denied a jury to review evidence while in deliberations is the abuse of discretion standard. Taylor v. Progressive Sec. Ins. Co. , 09-791 (La.App. 3 Cir. 4/7/10), 33 So.3d 1081, writ denied , 10-1024 (La. 9/17/10), 45 So.3d 1044.

This court, in Taylor , 33 So.3d at 1088, concisely addressed this issue, stating the following:

The Louisiana Fourth Circuit Court of Appeal considered a similar issue in Fowler v. Bauman , 95-145 (La.App. 4 Cir. 10/12/95), 663 So.2d 438. In determining that the trial court has discretion as to the items it provides to the jury, that court stated: "Although La.C.C.P. art. 1795(A) does use the mandatory word ‘shall,’ La.C.C.P. art. 1795(B), by use of the word ‘may,’ clearly gives the trial judge discretion to determine whether to provide the jury with requested items." Id. at 443. We agree with the fourth circuit's analysis of this issue.

Here, Lexington argues that the jury had a right to view the Petition for Damages because it was admitted into evidence without objection. This argument is misguided, as a trial court is quite clearly afforded discretion in determining whether to grant a jury's request to view admitted evidence. Moreover, the reasoning of the trial court to deny the request in this case, the potential prejudice of the Petition for Damages...