Meshell v. Lovell, 98-1192.
| Decision Date | 17 March 1999 |
| Docket Number | No. 98-1192.,98-1192. |
| Citation | 732 So.2d 83 |
| Parties | Sandra Sue MESHELL, Plaintiff-Appellant, v. Horace J. LOVELL, et al., Defendants-Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
Otis Edwin Dunahoe, Jr., for Secondary Plaintiff Sandra Sue Meshell, et al.
Tracy L. Oakley, Ruston, for Defendant/Appellee Horace J. Lovell, et al.
Bradley John Gadel, for Defendant/Appellant Agricultural Ins. Co.
Earl Pitre, Jr., Baton Rouge, for Defendant/Appellee State of La., DOTD.
Raymond L. Brown, Jr., Alexandria, for Defendant/Appellee New Hampshire Ins. Co.
BEFORE: COOKS, SAUNDERS and GREMILLION, Judges.
This matter arises out of an accident that occurred on July 23, 1996, at the intersection of U.S. Highway 171 and Topsey Bell Road, just north of Lake Charles, Louisiana. Sandra Sue Meshell was operating an eighteen-wheeler truck owned by TransAmerican Waste Industries. Meshell was employed by TransAmerican to drive two loads of garbage each day from Lake Charles to Many, Louisiana. Meshell traveled to Lake Charles, picked up a load, and dropped the load at the dump in Many and was returning to Lake Charles to pick up her second load. She was traveling in a southerly direction on U.S. 171, approaching the intersection of Topsey Bell Road. U.S. 171 curves to the right as it nears Topsey Bell Road from the north. On this date, there was road construction ongoing in this area. According to Meshell, as she approached the intersection she noticed a red pickup truck pulling off from the side road in front of her. Meshell attempted to stop but was unable to do so before her vehicle collided with the truck operated by Horace J. Lovell.
Prior to the accident, Lovell was traveling in a westerly direction on Topsey Bell Road. According to Lovell, he stopped at the intersection of Topsey Bell Road and U.S. 171. Lovell told the investigating officer he looked north and south for traffic, did not see any, and proceeded to turn left onto U.S. 171 when the collision occurred. He testified, his vehicle's rate of speed was approximately 10 to 15 miles per hour when the accident occurred.
Lovell had liability insurance with Safeway Insurance Company on his pickup truck with limits of $10,000.00 per person and $20,000.00 per accident. Meshell had her truck insured by Agricultural Insurance Company, with limits of $1,000,000.00. At the time of the accident, Meshell was engaged in the course and scope of her employment with TransAmerican Waste. Subsequently, she received workers' compensation benefits.
As a result of the accident, Meshell suffered injuries to her right shoulder and neck. Initially, she was treated by Dr. Garland Miller, who referred her to Dr. Gordon Mead, an orthopaedic surgeon. After a period of conservative treatment, Dr. Mead concluded Meshell required surgery on her right shoulder to relieve an impingement. Dr. Mead also found Meshell had a cervical strain superimposed upon a degenerative cervical disc disease.
Meshell filed suit for personal injuries against Horace J. Lovell and his liability insurer, Safeway Insurance Company. In addition, she named as defendants the State of Louisiana, through the Department of Transportation and Development (DOTD) and the uninsured motorist insurer for her employer's truck, Agricultural Insurance Company. New Hampshire Insurance Company intervened to recover workers' compensation benefits paid to the plaintiff. The matter was tried before a jury.
On the morning of the trial, a stipulation was entered into by all counsel of record agreeing that New Hampshire Insurance Company (the workers' compensation carrier of TransAmerican) paid medical expenses to or on behalf of Sandra Meshell in the amount of $36,617.82 and indemnity benefits in the amount of $20,935.00. The parties also stipulated, at the time of the accident, Meshell was acting within the course and scope of her employment. All matters were submitted to the jury, except New Hampshire Insurance Company's workers' compensation subrogation claims. The jury rendered a verdict finding Lovell 75% at fault in causing the accident and Meshell 25% at fault. The jury found DOTD was not at fault. The jury awarded the following damages totaling $136,206.23:
A. Pain, Suffering, Mental and Physical $25,000.00 Anguish B. Past Medical Expenses $36,206.23 C. Past Lost Wages $32,000.00 D. Future Lost Wages and Earning $18,000.00 Capacity E. Loss of Fringe Benefits $ 0.00 F. Permanent Disability, Loss of $25,000.00 Enjoyment of Life
The jury also found the failure of Agricultural Insurance Company to make an unconditional UM tender to the plaintiff was reasonable. The trial judge, ruled on New Hampshire's claims and found it had no right of recovery against Agricultural. The trial judge requested the parties prepare a judgment in accordance with the jury's verdict and his ruling. After all counsel were unable to concur on the judgment's content, Agricultural and Meshell submitted separate judgments for the court's consideration. The court signed the judgment submitted by Meshell. Agricultural filed a motion to have the judgment amended in conformance with the law and the jury verdict. Meshell filed a Motion for Judgment Notwithstanding the Verdict, contending the damage award was inadequate or, alternatively, urging the trial court to grant it a new trial. All motions were denied by the trial court. Both Meshell and Agricultural Insurance Company appealed the jury's verdict. Meshell asserted the following assignments of error:
Agricultural contends that the jury's verdict is supported by the evidence, but that the judgment signed by the court is incorrect as a matter of law.
An appellate court may not set aside a trial court's findings of fact in the absence of clear or manifest error. Lewis v. State, Through DOTD, 94-2370 (La.4/21/95), 654 So.2d 311; Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). To reverse a trial court's factual determinations, a court of appeal must find, based on the record, that no reasonable factual basis for the findings exists and that the findings are clearly wrong or manifestly erroneous. Mart v. Hill, 505 So.2d 1120 (La.1987). The issue which an appellate court should resolve is not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. Lewis v. State, Through DOTD, supra; Stobart v. State, Through DOTD, supra.
The fact finder's choice between two conflicting permissible views of the evidence "cannot be" manifestly wrong. Stobart v. State, Through DOTD, supra. The duty of the fact finder is to evaluate the credibility when testimony is conflicting and to accept or reject any part of a witness' credibility. Welch v. Winn-Dixie Louisiana, Inc., 94-2331 (La.5/22/95), 655 So.2d 309. Where the testimony conflicts, the fact finder's reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review by the appellate court. Rosell v. ESCO, supra; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).
Meshell argues she should not be apportioned any fault in causing the accident. In support of this argument, she relies strongly on the fact that she was traveling on a favored highway. She also asserts, as she approached the construction zone, she disengaged her cruise control (which she stated was set at 55 miles per hour) and slowed her vehicle.
Even though Meshell was traveling on a favored road she is not relieved of the duty to exercise ordinary care. When a superior motorist realizes that an inferior motorist will continue his approach and obstruct the superior motorist's passage across the intersection, she is guilty of negligence should she fail to take every precaution to avoid a collision. Randall v. Baton Rouge Bus Company, 240 La. 527, 124 So.2d 535 (1960); Petersen v. State Farm Auto. Ins. Co., 543 So.2d 109 (La.App. 3 Cir.1989); Audubon Ins. Co. v. Knoten, 325 So.2d 624 (La.App. 4 Cir.1976).
The evidence established Meshell was driving unreasonably fast in a construction zone; and, after seeing Lovell enter her lane of travel she failed to apply her brakes, use her horn or take evasive action. The evidence, thus, supports the jury's finding that Meshell's actions, or lack thereof, contributed to the accident. The jury's decision to assign her 25% fault in causing the accident was not manifestly erroneous.
In reviewing general damage awards, an appellate court must accord much deference to the trial judge or jury. Andrus v. State Farm Mutual Automobile Insurance Company, 95-0801 (La.3/22/96), 670 So.2d 1206, 1210. The role of an appellate court in reviewing awards of general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trial court. Andrus, 670 So.2d at 1210; Reck v. Stevens, 373 So.2d 498, 501 (La.1979). Because the discretion vested in the trier of fact is great, and even vast, an appellate court should only disturb an award of general damages if there is a clear abuse of that discretion. Andrus 670 So.2d at 1206; Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).
Meshell was awarded $50,000.00 as general damages. This included pain and suffering, both mental and physical, permanent disability and loss of enjoyment of life. Meshell, in brief, compares the jury's award with that given in "similar cases," and concludes the award was inadequate in light of these...
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