Jurado v. State Farm Mut. Ins. Co.
| Citation | 557 So.2d 266 |
| Decision Date | 16 January 1990 |
| Docket Number | No. 89-CA-0420,89-CA-0420 |
| Parties | Aurora JURADO v. STATE FARM MUTUAL INSURANCE COMPANY. 557 So.2d 266 |
| Court | Court of Appeal of Louisiana (US) |
Paul Brian Spurlock, New Orleans, for plaintiff-appellee.
C. Gordon Johnson, Jr., John A. Kopfinger, Jr., William Ryan Acomb, Porteous, Hainkel, Johnson & Sarpy, New Orleans, for defendant-appellant.
Before BARRY, BYRNES and CIACCIO, JJ.
The issue is a judgment which maintains an exception of res judicata and dismisses this suit for personal injuries.
On April 16, 1986 Aurora Jurado was riding her bicycle home from UNO (she was an electrical engineering student) when she was hit by a mirror on Milton Seeger's truck. Seeger was insured by State Farm Mutual Automobile Insurance Company.
On May 2, 1986 Jurado went to State Farm's office and received $968.00 after signing a release.
On March 16, 1987 Jurado sued Seeger and State Farm for personal injuries. The petition does not mention the release or allege any fact which would support a claim that the release was unenforceable. After a hearing on defendants' "Exception of Res Judicata, Motion to Enforce Settlement and Motion for Summary Judgment," judgment was rendered maintaining the exception of res judicata based on the release.
Jurado, a native of Venezuela, testified that she took her first English class in 1980 when she initially came to the United States. She obtained an electrical engineering degree in December, 1986, approximately nine months after the accident.
Jurado said a State Farm agent attempted to reach her following the accident and after the third or fourth effort she returned the call. Jurado saw the agent, Dexter Herbert, on May 2, 1986.
Though she went to the hospital after the accident, Jurado did not seek other medical attention between the time of the accident and signing of the release on May 2.
Jurado acknowledged that she read the document before "freely" signing it, that she knew $500 was for pain and suffering, that there was a clause regarding later medical expenses, and she cashed the checks issued by State Farm. She stated:
Dexter Herbert, State Farm claim agent, testified he usually contacts the insured to verify information, then contacts the other person to advise that the vehicle was insured by State Farm. Herbert called Jurado on April 18 and 22, but got no answer. On the 22nd of April he went to her home, she was not there, so he left his card.
Herbert said Jurado called his office and they discussed her injuries. Jurado said she would settle after another visit to the doctor. Because he did not hear from her, Herbert called and left a message.
On May 2, 1986 Jurado went to the office and was offered a general release. She expressed concern about returning to the doctor, so Herbert offered her an "open-ended release" wherein State Farm agreed to cover certain medical expenses incurred within 180 days from the date of the release, up to $3,000. Jurado signed the open-end release.
Jurado received $35.00 for a knapsack, $50.00 for pants, $150.00 for the bike, $500 for pain and suffering, plus reimbursement for medical and out-of-pocket expenses, a total of $968.00. Additional medical bills were paid pursuant to the release.
Herbert testified that Jurado had no apparent language problem and was very pleasant, understanding and cooperative. He noted that another lady was present when Jurado signed the release.
Elizabeth Ceballes, Jurado's roommate at the time of the accident, testified that she went with Jurado to State Farm's office and the agent told Jurado her injuries were not very serious.
By proffer, Jurado offered evidence that she had an incapacitating injury from the accident which did not develop until about one month after the accident and which has caused her to refrain from the several athletic activities in which she formerly participated.
Jurado urges the release is void due to "mistake of material fact, specifically mutual mistake regarding the injuries sustained", and the proffered evidence should have been admitted.
The release pursuant to La.C.C. Art. 3071 is not disputed. Jurado argues that the release is void under La.C.C. Art. 3079 which provides in pertinent part that ... "[a] transaction...
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