Dickens v. Commercial Union Ins. Co.

• Decision Date: 23 June 2000
• Docket Number: No. 99/CA/0698.,No. 99/CA/0699.,99/CA/0698.,99/CA/0699.
• Citation: 762 So.2d 1193
• Parties: Sylvia M. DICKENS, Girlie Sims Warren and Gennie L. Warren v. COMMERCIAL UNION INSURANCE COMPANY, Ordia Byrd Johnson, City of Baton Rouge, Parish of East Baton Rouge, Through East Baton Rouge Housing Authority and Willie Collins. Willie Collins, Melvin Dixon, Elice Parker, Sr., and Patsy Pittman v. Ordia Byrd Johnson, East Baton Rouge Parish Housing Authority, and Commercial Union Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

Page 1193

762 So.2d 1193

Sylvia M. DICKENS, Girlie Sims Warren and Gennie L. Warren v. COMMERCIAL UNION INSURANCE COMPANY, Ordia Byrd Johnson, City of Baton Rouge, Parish of East Baton Rouge, Through East Baton Rouge Housing Authority and Willie Collins.

Willie Collins, Melvin Dixon, Elice Parker, Sr., and Patsy Pittman v. Ordia Byrd Johnson, East Baton Rouge Parish Housing Authority, and Commercial Union Insurance Company.

No. 99/CA/0698.

No. 99/CA/0699.

Court of Appeal of Louisiana, First Circuit.

June 23, 2000.

COPYRIGHT MATERIAL OMITTED

Alan L. Schwartzberg, Baton Rouge, Counsel for Plaintiffs/Appellees, Willie Collins, Melvin Dixon, Elice Parker, Sr. and Patsy Pittman.

Donald R. Smith, Danny Atkinson, Jr., Baton Rouge, Counsel for Plaintiffs/Appellees, Sylvia M. Dickens, Girlie Sims Warren and Gennie L. Warren.

Paul H.F. Baker, Lafayette, Counsel for Defendants/Appellants, American Central Insurance Company, Ordia Byrd Johnson and East Baton Rouge Housing Authority.

Nan M. Landry, Lafayette, Counsel for Defendants/Appellants, East Baton Rouge Parish Housing Authority and Commercial Union Insurance Company.

Before: YELVERTON, THIBODEAUX and GREMILLION, JJ.^*

THIBODEAUX, Judge.

This case involves two consolidated suits for damages arising from a 1995 vehicular collision. American Central Insurance Company¹ (hereinafter "American Central") appeals the trial court's rulings pertaining to a party's failure to appear at trial and to review the allocation of fault and award of damages. We find that the trial court properly denied American Central's motion to dismiss based on the party's absence but erred in permitting the introduction of her deposition testimony under these facts. We amend that party's damages to exclude those only evidenced in the inadmissible deposition. We affirm the allocation of fault and affirm the other damage awards. We also deny American Central's claim for subrogation.

I. FACTS

The accident spawning this litigation occurred at the intersection of Plank Road and Sumrall Avenue in Baton Rouge, Louisiana on October 27, 1995. A van driven by Ms. Ordia Johnson, owned by the East Baton Rouge Housing Authority and insured by American Central, was proceeding in a northerly direction on Plank Road approaching the intersection with Sumrall Avenue. Ms. Johnson was driving the van in the course of her employment. Also in the van were Ms. Sylvia Dickens, Mrs. Girlie Sims Warren and the Rev. Gennie L. Warren. Mr. Willie Collins was approaching the intersection from the East on Sumrall Avenue in a car owned by Ms. Patsy Pittman. The passengers in his car were Mr. Melvin Dixon and Mr. Elice Parker. A third vehicle driven by Ms. Marjorie White was following Mr. Collins. Mrs. Marjorie Kerry was a passenger in that vehicle.

The driver and passengers in the van testified that they were engaged in conversation as they approached the intersection. Ms. Johnson testified that she had the green light when she reached the intersection. She stated that she saw the car driven by Mr. Collins approaching, deduced that it was not going to stop at the intersection, but was unable to avoid the collision. The passengers in her vehicle testified, generally, that the light was green as they approached the intersection, but that they were not paying close attention to the light as they proceeded through the intersection.

Mr. Collins was attempting to make a left turn from Sumrall Avenue onto Plank Road. He and his passenger testified that the light was green as they proceeded through the intersection. With minor variations, Ms. White and Mrs. Kerry confirmed this.

There were several contradictions in the witnesses' accounts of the events. The trial judge determined that Ms. Johnson negligently proceeded through the intersection on a red light and attributed one hundred percent of the fault to her. He concluded that the drivers and passengers had sustained injuries in the accident and awarded damages.

Ms. Dickens did not attend the trial. Over the defendants' objections, the court permitted the introduction of her deposition testimony in lieu of her live testimony. The trial judge awarded damages to her based, in part, on her deposition.

American Central brought this appeal.

II.

LAW AND DISCUSSION

Failure of Party to Appear

American Central argues that the trial court erred in denying its motion to dismiss Ms. Dickens' claim due to her failure to appear at trial. In support of this argument, American Central cites La.Code Civ.P. art. 1672(A)(1) and Jackson v. Royal Ins. Co., 97-723 (La.App. 3 Cir. 12/17/97); 704 So.2d 424 to substantiate their claim that the trial court was required to dismiss the action upon their motion because Ms. Dickens failed to appear at trial.

Addressing involuntary dismissal upon a party's failure to appear, La.Code Civ.P. art. 1672(A)(1) states: "A judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial." In Jackson, 704 So.2d 424, the Third Circuit upheld the trial court's dismissal of an action where both the plaintiff and her attorney failed to appear at trial.

We agree that the trial court has discretion to dismiss an action upon the application of any party when the plaintiff fails to appear. However, an appearance may be made either personally or through an attorney. La.Code Civ.P. art. 1672 cmt. (g); Cf. La.Code Civ.P. art. 6; Spencer v. Children's Hosp., 432 So.2d 823 (La.1983). Although Ms. Dickens was not present at trial, she was represented by her attorney. Because her attorney made an appearance at trial, Jackson is inapplicable here.

Generally, a trial court is not required to dismiss proceedings due to the absence of a party. A party who makes an appearance through his counsel is not "absent" under Article 1672. The plaintiffs physical presence in court is not essential in all cases. Spencer, 432 So.2d 823.

An appellate court reviews a trial court's decision regarding dismissal pursuant to a manifest error or clearly wrong standard. Crowell v. Alexandria, 558 So.2d 216 (La.1990); Liberto v. Rapides Parish Police Jury, 95-456 (La.App. 3 Cir. 11/2/95); 667 So.2d 552. After conducting such a review, we find no error in the trial court's refusal to grant the motion for dismissal.

Use of Deposition Testimony

In its next assignment of error, American Central asserts that it was error for the trial court to permit the introduction of Ms. Dickens' deposition testimony in evidence because she was not "unavailable" under La.Code Civ.P. art. 1450. Ms. Dickens counters that the trial court has great discretion in determining the use of deposition testimony at trial when the witness is out of state or exceptional circumstances make admissibility of the deposition desirable.

Article 1450 establishes the parameters for the use of deposition testimony at trial:

A. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the Louisiana Code of Evidence applied as though the witnesses were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:

....

(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:

(a) That the witness is unavailable;

[or]

(b) That the witness resides at a distance greater than one hundred miles from the place of trial or hearing or is out of the state, unless it appears that the absence of the witness was procured, by the party offering the deposition[.]

Thus, the requirements for the admissibility of the deposition of a witness are twofold: (1) the deposition must be admissible under the Louisiana Code of Evidence and (2) the witness must be either (a) unavailable; (b) residing over one hundred miles from the place of trial; or (c) in another state without provocation by the party offering the deposition. The issue presented is whether the trial court properly found that Ms. Dickens was unavailable to testify at trial or that her absence from the state was not self-procured.

Ms. Dickens explains that she was not present at trial because she was attending a national conference of the National Association of Community Action Agencies of which she is a member of the Board of Directors of the Baton Rouge Chapter. Her counsel explained her activities to the trial judge who found that Ms. Dickens was unavailable and permitted Ms. Dickens' deposition to be admitted in evidence over Defendants' objections.

A party is not legally "unavailable" as a witness simply because he eschews the trial. Hoy v. Gilbert, 98-1565 (La.3/2/99); 754 So.2d 207. Additionally, a party whose absence from trial is attributable to his choice to be out of state on the date of trial is considered to have procured his own absence. Bruins v. United States Fleet Leasing, Inc., 430 So.2d 386 (La.App. 3 Cir.1983); Wehbe v. Waguespack, 98-475 (La.App. 5 Cir. 10/28/98); 720 So.2d 1267, writs denied, 98-2907 (La.1/15/99); 736 So.2d 211 and 98-2970 (La.1/15/99); 736 So.2d 213. A party who is not legally unavailable or who is intentionally absent from trial due to his choice to be out of state may not submit his deposition testimony in lieu of live testimony.

"The trial court has much discretion in determining whether to allow the use of deposition testimony at trial, and its decision will not be disturbed upon review in the absence of an abuse of that discretion." State in the Interest of Bordelon v. Guichard, 94-1795, p. 10 (La.App. 1 Cir. 5/5/95); 655 So.2d 1371, 1378, writ denied, 95-1405 (La.9/15/95); 660 So.2d 454. Our review of the record clearly shows that Ms. Dickens was absent because she chose to attend a conference in Florida rather than attend the trial of her claim. She was legally available...