Jaffarzad v. Jones Truck Lines, Inc.

• Decision Date: 14 March 1990
• Docket Number: No. 88-378,88-378
• Citation: 561 So.2d 144
• Parties: Bahrooz JAFFARZAD, Plaintiff-Appellee, v. JONES TRUCK LINES, INC., et al., Defendants-Appellants. 561 So.2d 144
• Court: Court of Appeal of Louisiana — District of US

Page 144

561 So.2d 144

Bahrooz JAFFARZAD, Plaintiff-Appellee, v. JONES TRUCK LINES, INC., et al., Defendants-Appellants.

No. 88-378.

561 So.2d 144

Court of Appeal of Louisiana Third Circuit.

March 14, 1990.

Rehearing Denied April 23, 1990.

Writ Denied June 29, 1990.

Edwards, Stefanski, Barousse, Cunningham, Stefanski & Zaunbrecher, Stephen Stefanski, Homer E. Barousse, Crowley, for Bahrooz Jaffarzad.

Harvey Lee Hall, Baton Rouge, for the State.

Gibbens & Blackwell, J. Louis Gibbens, New Iberia, Thomas Masterson, Jr., Philadelphia, Pa., for Jones Truck Lines and Travelers Ins. Co.

Before DOMENGEAUX, C.J., and LABORDE and KING, JJ.

KING, Judge.

The issues presented by these two consolidated appeals are whether the jury was clearly wrong in its percentage allocation of fault between the parties, in fixing plaintiff's general damages in the sum of $250,000.00, in denying a consortium claim asserted by plaintiff's wife, and in awarding intervenors their claim from the plaintiff's damage award. A subsequent motion to apportion attorney's fees and unreimbursed litigation costs between plaintiff, on his damage award, and his employer and worker's compensation insurer, on their intervention award, present the issue of whether the trial judge erred in apportioning 65% of the attorney's fees and unreimbursed litigation costs to plaintiff's employer and worker's compensation carrier.

On May 1, 1985, Bahrooz Jaffarzad (hereinafter Jaffarzad) filed suit seeking damages for personal injuries received in a two vehicle collision which occurred on January 30, 1985 in Vermilion Parish, Louisiana. On that date, Jaffarzad was driving a van owned by his employer, Shop-Rite, Inc. (hereinafter Shop Rite), when it collided with a tractor trailer rig. The tractor trailer rig was owned by Jones Truck Lines, Inc. (hereinafter Jones), was insured by Travelers Insurance Company (hereinafter Travelers), and was being driven for Jones by David R. Lalande (hereinafter Lalande). The tractor trailer rig jackknifed and entered Jaffarzad's lane of travel where the collision occurred. Farah Samauti Jaffarzad, the wife of Jaffarzad, was not involved in the accident, but joined in the suit in her individual capacity, claiming damages for loss of love, affection, society, and consortium for herself.

Plaintiffs sued Jones, Travelers, and Lalande as defendants. Shop-Rite and its worker's compensation insurer, the Louisiana Employers Safety Association Self Insurers Fund (hereinafter the Self Insurers Fund) intervened to recover worker's compensation benefits and medical expenses paid to Jaffarzad.

Defendants answered the suit denying liability and alternatively pled comparative negligence as a defense. Defendants subsequently asserted a third party demand against the Louisiana Department of Transportation and Development (hereinafter the DOTD), claiming that defects in the highway rendered the tractor trailer rig's braking system ineffective and caused Lalande to lose control of the rig. Plaintiffs thereafter joined the DOTD as an additional defendant.

All claims were tried before a jury during a six day trial, beginning April 7, 1987. At the conclusion of the trial, the jury rendered judgment in favor of Jaffarzad and against Jones, Travelers, Lalande, and the DOTD in the sum of $250,000.00. The jury assessed Jaffarzad with 9% negligence, Jones, Lalande, and Travelers with 81% negligence and DOTD with 6% negligence. The jury further attributed 4% negligence to some person not a party to the lawsuit. The jury entirely rejected the consortium claim of Mrs. Jaffarzad.

On May 12, 1987, the court rendered and signed a written judgment, in accordance with the jury verdict except that the DOTD was assessed by the court with 10% of the fault. The judgment recognized the claim of Shop-Rite and the Self Insurers Fund and ordered the sum of $119,714.85 ¹ paid to them from plaintiff's award. The defendants' third party demand was also recognized and an award of $22,750.00 was rendered in favor of Jones, Travelers, and Lalande and against the DOTD.

After rendition of the judgment, plaintiffs filed post-trial Motions For Judgment Notwithstanding The Verdict, New Trial, and, Alternatively For Additur. These motions were denied by the trial judge and dismissed at plaintiffs' costs.

Thereafter, plaintiffs appealed, complaining of an inadequate award of damages, the allocation of 9% comparative negligence to Jaffarzad, and rejection of the consortium claim of Mrs. Jaffarzad. The defendants, Jones, Travelers, and Lalande, appealed. The DOTD appealed. The Self Insurers Fund also appealed.

A dispute subsequently arose as to the apportionment of attorney's fees and litigation costs between the awards recovered by Jaffarzad and intervenors. Jaffarzad filed a Motion To Apportion Judgment seeking to recover from intervenors a percentage of the attorney's fees and costs of litigation incurred in bringing this matter to trial. Intervenors filed an opposition to that motion. Following a contradictory hearing, the trial court granted plaintiffs' motion and assessed intervenors 65% of the litigation costs and attorney's fees. This effectively reduced intervenors' recovery from $131,554.78 to $69,463.35. An amended judgment was rendered and signed on December 30, 1988. Intervenors, Shop Rite and the Self Insurers Fund, then filed an appeal seeking a reversal of the trial court judgment which reduced the amount they recovered on their intervention. This later appeal was consolidated by this Court with the prior pending appeals in this matter. ²

After reviewing the record, we find clear error. Accordingly, we reverse the judgment in part, affirm the judgment in part, amend the judgment in part, and render judgment based on our own independent review of the record and law. On the consolidated supplemental appeal we reverse and render judgment.

FACTS

On January 30, 1985, Jaffarzad was traveling in a southerly direction on U.S. Highway 167, about four miles north of the City of Abbeville in Vermilion Parish, Louisiana. Lalande was driving north on the same highway at approximately 50-55 miles per hour. Lalande had been employed by Jones as a driver for approximately four years before the accident, and was assigned a delivery route generally located within a 50 mile radius of Lafayette. On that day, Lalande had completed his deliveries for the day and was returning to Jones' truck terminal in Lafayette.

Several automobiles preceded Lalande's truck as he approached an intersection near the site of the collision. The automobile immediately in front of his truck was operated by Donna Mahfouz. Belinda Bearb was a passenger in the Mahfouz vehicle. Just before the accident, Donna Mahfouz applied her brakes as one of the automobiles in front of her attempted to make a left turn at the intersection. When Lalande realized the vehicles in front of him were braking, he applied the trailer brakes and then the tractor brakes. The tractor trailer rig skidded 138 feet in the northbound lane and then the tractor jackknifed several feet into the southbound lane. Jaffarzad, who was traveling in the opposite lane, did not have time to apply his brakes and struck the tractor trailer rig on the passenger door of the cab of the tractor. Lalande did not see the van until the "time of impact."

The accident occurred on a level bridge without shoulders located near the intersection. The force of the impact knocked both vehicles partially over the edge of the bridge which crossed a deep drainage canal.

Lalande's version of the accident is the only one available because Jaffarzad lost consciousness after the collision and has no recollection of the events that occurred just prior to impact. Jaffarzad was extracted from his vehicle by an emergency unit and immediately transported to the emergency room of Lafayette General Hospital for treatment.

After Jaffarzad received initial treatment in the emergency room and his condition stabilized, he was transferred to the intensive care unit for four days. He returned for another three days when he experienced respiratory distress. Jaffarzad's initial hospital confinement was from January 30, 1985 through May 8, 1985. He was subsequently hospitalized on two other occasions for additional surgical procedures and has undergone five separate surgical procedures as a result of his injuries.

ALLOCATION OF FAULT

A. Mr. Jaffarzad's Liability

Plaintiffs argue on appeal that the jury's assessment of negligence to Jaffarzad was contrary to the evidence and testimony adduced during the trial. On the other hand, defendants allege the trial testimony establishes that the erratic movements of the Jones truck attempting to slow down were visible at a great distance; therefore, the jury could reasonably have concluded plaintiff was negligent in failing to keep a proper lookout and in failing to take evasive action to avoid hitting the tractor-trailer rig.

Under Louisiana's comparative fault principles set forth in LSA-C.C. Art. 2323, a plaintiff's recovery is reduced by the degree or percentage of fault attributed to him by the trier of fact.

LSA-C.C. Art. 2323 provides:

"When contributory negligence is applicable to a claim for damages, its effect shall be as follows: If a person suffers injury, death or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the claim for damages shall not thereby be defeated, but the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death or loss."

At the outset we note that a trier's finding as to degree of fault under LSA-C.C. Art. 2323 is a factual matter and should not be disturbed on appeal unless the record establishes that the finding was clearly wrong or an abuse of discretion. Courmier v. Travelers Ins. Co., 486 So.2d 243 (La.App. 3 Cir.1986), writ...