Fontenot v. Patterson Ins., 06-1624.

• Decision Date: 05 December 2007
• Docket Number: No. 06-1624.,06-1624.
• Citation: Fontenot v. Patterson Ins., 972 So.2d 401 (La. App. 2007)
• Parties: Randy FONTENOT, et al. v. PATTERSON INSURANCE, et al. Germaine Brooks, et al. v. City of Lafayette, et al.
• Court: Court of Appeal of Louisiana

972 So.2d 401

Randy FONTENOT, et al. v. PATTERSON INSURANCE, et al.

Germaine Brooks, et al. v. City of Lafayette, et al.

No. 06-1624.

Court of Appeal of Louisiana, Third Circuit.

December 5, 2007.

Rehearing Denied January 23, 2008.

Lawrence N. Curtis, Lawrence N. Curtis, Ltd., Lafayette, LA, for Plaintiffs/Appellants/Appellees, Randy Fontenot and Susanne Fontenot.

Rickey W. Miniex, Clyde R. Simien, Todd M. Swartzendruber, Holli K. Yandle, Simien & Miniex, Lafayette, LA, for Defendant/Appellee/Appellant, Lafayette City-Parish Consolidated Government.

Colleen McDaniel, Assistant Attorney General, Louisiana Department of Justice, Division of Risk Litigation, Lafayette, LA, for Defendant/Appellee/Appellant, The State of Louisiana Through The Department of Transportation and Development.

Court composed of Chief Judge ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS, JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.

PETERS, J.

These consolidated personal injury, wrongful death, and property damage actions arise from an automobile accident which occurred in Broussard, Louisiana, on March 23, 2001. The trial court judgments rendered therein have resulted in three appeals which are now before us. The first appeal is by the personal injury plaintiffs, Randy and Susanne Fontenot and their minor child. The merits issues in the Fontenot appeal are the respective fault and degrees of fault of the drivers of the two vehicles involved in the collision and the State of Louisiana, Department of Transportation and Development (DOTD). In the second appeal, DOTD appeals the issues of fault and degrees of fault, as well as the amount of the trial court's general damage award to Randy Fontenot rendered through a judgment notwithstanding the verdict (JNOV) of the jury. The third appeal arises from the efforts of the third-party plaintiff, Lafayette City-Parish Consolidated Government (City-Parish), to recover its claim for the property damage to the police car being driven by Mr. Fontenot at the time of the accident. In its appeal, the City-Parish also argues DOTD's degree of fault in causing the accident.

DISCUSSION OF THE RECORD

The accident giving rise to this litigation occurred a few minutes after 11:00 p.m. on March 23, 2001, at the intersection of Morgan Street and Main Street in Broussard, Louisiana. At the time of the accident, Randy Fontenot was employed by the City-Parish as a policeman, had just responded to a domestic disturbance call, was driving a police vehicle owned by the City-Parish, and was attempting to locate the vehicle of an individual involved in the domestic disturbance. In searching for the vehicle, he proceeded east on Main Street in the direction of the Morgan Street intersection. At the same time, Germaine Brooks was driving his vehicle south on Morgan Street and was also approaching the same intersection. Charlotte Phillips was a guest passenger in the Brooks vehicle. The collision between the two vehicles resulted in Ms. Phillips's death, in personal injuries to both Mr. Fontenot and Mr. Brooks, and in substantial damage to both vehicles.

Mr. and Mrs. Fontenot filed the first of the two consolidated suits involved in this appeal. During the course of the litigation, they named Mr. Brooks; his liability insurer, Patterson Insurance Company; and DOTD as defendants and sought recovery for the damages they sustained as a result of the accident. The City-Parish intervened against the same defendants seeking, among other relief, recovery of the property damages associated with loss of its patrol car.¹ After Patterson Insurance Company became insolvent, the Fontenots and the City-Parish added the Louisiana Insurance Guaranty Association (LIGA) as a defendant.²

Mr. Brooks and Leona Phillips, the mother of Charlotte Phillips, filed the second action, naming Mr. Fontenot and the City-Parish as defendants. In this action, Mr. Brooks sought to recover the damages he sustained, and Ms. Phillips pursued a wrongful death action for the loss of her daughter. The Fontenots reconvened against Mr. Brooks, and the City-Parish filed a third-party demand against DOTD. The two plaintiffs in this second suit settled the principal demands before trial. Thus, when the two consolidated suits came to trial, the only remaining party plaintiffs (both principal and third-party) were the Fontenots and the City-Parish. The remaining defendants were Mr. Brooks, LIGA, and DOTD.³ At trial, the claims of the Fontenots were decided by a jury and the claims of the City-Parish were decided by the trial court.

After a four-day trial in which liability was the main factual dispute,⁴ the jury answered the propounded interrogatories, assessing Mr. Brooks with ninety percent of the fault causing the accident and assessing Mr. Fontenot with the remaining ten percent. The jury concluded that Mr. Fontenot sustained $255,000.00 in past medical expenses and $176,512.00 in loss of past wages, and would sustain $250,000.00 in lost future wages and earning capacity. However, it awarded Mr. Fontenot no general damages. The jury also concluded that Susanne Fontenot sustained $10,000.00 for loss of consortium and that their minor daughter sustained $5,000.00 in damages. The trial court, on the other hand, concluded that the City-Parish was entitled to recover $19,994.87 for the property damage to its patrol car,⁵ but apportioned fault for that damage equally between Mr. Brooks and DOTD. Thus, the jury found no fault on the part of DOTD and the trial court found no fault on the part of Mr. Fontenot.

Mr. Fontenot responded to the jury verdict by filing a motion for a JNOV, or in the alternative a motion for a new trial. In doing so, he challenged the jury's allocation of fault and its failure to award him any general damages. The trial court granted the motion for a JNOV as to the general damages complaint, awarding Mr. Fontenot $500,000.00 in general damages. However, the trial court denied the motions in all other respects. Thereafter, the trial court executed three separate judgments—one with regard to its judgment on the City-Parish's claim, and two with regard to the jury verdict and its subsequent grant of the JNOV. The three appeals now before us were then timely filed.

OPINION

Standard of Review

Our initial inquiry on appeal is the appropriate standard of review for conflicting verdicts arising from a bifurcated trial. In addressing this inquiry, we must first acknowledge that the methodology for resolving such conflicts is disputed among the state's courts of appeal and indeed within this circuit.

The Louisiana Supreme Court, in several of its opinions, has indicated its awareness that the procedures for reconciling conflicting decisions by the jury and the judge in bifurcated trials vary in the courts of appeal. See Powell v. Reg'l Transit Auth., 96-0715 (La.6/18/97), 695 So.2d 1326; Davis v. Witt, 02-3102, 02-3110 (La.7/2/03), 851 So.2d 1119; and Hebert v. Rapides Parish Police Jury, 06-2001, 06-2164 (La.4/11/07), ___ So.2d. ___, 2007 WL 1108851. However, it has chosen not to provide any instruction in this unsettled area save its original statements in Thornton v. Moran, 343 So.2d 1065 (La.1977).

Left to their own devices, the circuits have tried different approaches since the Thornton decision. In this circuit, our latest effort resulted in two panels rendering opinions on the same day in July of 2006, with each suggesting a different review methodology. These opinions were in Hebert v. Rapides Parish Police Jury, 05-471 (La.App. 3 Cir. 7/12/06), 934 So.2d 912, rev'd on other grounds, 06-2001, 06-2164 (La.4/11/07), ___ So.2d. ___, and McDaniel v. Carencro Lions Club, 05-1013 (La.App. 3 Cir. 7/12/06), 934 So.2d 945, writ denied, 06-1998 (La.11/3/06), 940 So.2d 671.

In Hebert, the opinion's author suggested that a de novo review was the appropriate approach in part because the other procedures employed by the various circuits in the past were too cumbersome and unwieldy to survive objective application.⁶ A majority of the panel in McDaniel proposed a more complicated review process of fault findings which would: (1) ignore the jury's finding regarding the public defendant; (2) with regard to "the other defendants" choose the "more reasonable" finding of fact if neither of the conflicting findings was manifestly erroneous; (3) adopt the finding that was not manifestly erroneous if the other was; and (4) go to a de novo review if the judge and jury findings were both manifestly erroneous.⁷ Id. The opinions in Hebert and McDaniel both began the standard of review analysis with reference to the supreme court decision in Thornton, 343 So.2d 1065, and documented their reasoning by review of the jurisprudence from this and other circuits which arose after that decision.

The decision in Thornton remains the supreme court's only direct instruction to the courts of appeal concerning the handling of conflicting judgments in bifurcated trials. In Thornton, the jury and the trial court had reached contradictory results and rendered conflicting judgments. The first circuit reviewed the judgments separately, found no manifest error in either decision, and essentially affirmed each judgment. Thornton v. Moran, 341 So.2d 1136 (La.App. 1 Cir.1976). The supreme court remanded the matter to the first circuit with instructions "to resolve the differences in the factual findings between the jury and the judge ... and to render a single opinion based upon the record." Thornton, 343 So.2d at 1065. In so instructing the first circuit, the supreme court cited La. Const. Art. 5, § 10(B), which expressly extends the jurisdiction of appellate courts in civil cases to the review of facts as well as law.

Thus, while the supreme court has shown a present-day unwillingness to specifically instruct the courts of appeal with regard to the appropriate standard of review, it has not been entirely silent on the subject. Because Thornton remains the...