Richard v. Artigue

• Citation: 87 So.3d 997
• Decision Date: 04 April 2012
• Docket Number: No. 11–1471.,11–1471.
• Parties: Margaret Montalvo RICHARD v. Harold ARTIGUE, et al.
• Court: Court of Appeal of Louisiana (US)

87 So.3d 997

Margaret Montalvo RICHARD
v.
Harold ARTIGUE, et al.

No. 11–1471.

Court of Appeal of Louisiana,
Third Circuit.

April 4, 2012.

[87 So.3d 999]

Kenneth Winslow Benson Jr., Attorney at Law, Baton Rouge, LA, for Defendant Appellee, Harold Artigue, Louisiana Services, L.L.C., Liberty Mutual Fire and Casualty Co.

Barry J. Heinen, Attorney at Law, Lafayette, LA, for Plaintiff Appellant, Margaret Montalvo Richard, Frank Richard.

Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.

SAUNDERS, Judge.

[3 Cir. 1]This case involves an automobile accident wherein a jury awarded the plaintiff driver, inter alia: (1) $225,000.00 for future wages lost or loss of earning capacity; (2) $555,833.00 for future medical expenses; (3) $10,000.00 in past wages lost; and (4) $325,000.00 in general damages. The jury allocated forty (40) percent of the fault to sudden emergency/fault of third party. Thus, these awards were reduced accordingly.

The plaintiff driver appealed. We reverse the allocation of fault and render that the defendant driver was one hundred (100) percent at fault. We affirm the jury's award of $225,000.00 for future lost wages, $10,000.00 in past wages lost, and $325,000.00 in general damages. We amend the judgment to reflect that the plaintiff driver is awarded $637,888.00 in future medical expenses.

FACTS AND PROCEDURAL HISTORY:

On October 18, 2007, a three-car automobile accident occurred on Interstate (although currently an Intrastate) 49 at the Gloria Switch Road overpass in Lafayette

[87 So.3d 1000]

Parish, Louisiana. Traffic that morning was congested due to a combination of normal morning traffic, a wet roadway due to rain and dew that morning, and an automobile accident that occurred prior to the one at issue in the case before us.

The three automobiles were southbound in the left lane of travel. The lead automobile was driven by plaintiff, Margaret Richard (hereinafter “Richard”), the second by Seth Menard, and the third by defendant, Harold Artigue. The automobiles driven by Richard and Seth Menard stopped for a different accident that occurred on the roadway before them. The automobile driven by Harold Artigue failed to stop, struck the Menard automobile, and pushed it into the automobile driven by Richard.

[3 Cir. 2]On September 26, 2008, Richard filed a petition for damages against Harold Artigue, Louisiana Service, L.L.C., Artigue's employer for whom Harold Artigue was driving within the course and scope of his employment, and Liberty Mutual Fire and Casualty Company (collectively defendants hereinafter referred to as “Artigue”). Richard amended her petition on January 18, 2011, to add the damages of her husband, Frank Richard for loss of consortium

Artigue asserted in their amended answer the affirmative defense of sudden emergency. Richard filed a motion to strike the amended answer on March 9, 2011. The trial court denied the motion.

The parties stipulated that Harold Artigue was the employee of Louisiana Services, L.L.C., that Liberty Mutual Fire and Casualty insured Louisiana Services, L.L.C. and Harold Artigue on the day of the accident, and that the Harold Artigue and Louisiana Services, L.L.C. were additionally insured by Chartis as an excessive carrier.

A jury trial was held from March 28, 2011, through April 1, 2011. Prior to submitting the matter to the jury, Richard moved for a directed verdict that Artigue was one hundred (100) percent at fault for the accident. The trial court denied the motion. Thereafter, prior to submission of the jury interrogatories, Richard objected to them allowing the jury to assign fault to anyone other than Artigue. The trial court overruled the objection.

On April 1, 2011, the jury rendered a verdict awarding Richard various amounts for particular items, including but not limited to, $225,000.00 for future lost wages, $555,833.00 for future medical expenses, $10,000.00 for past lost wages, and $325,000.00 for general damages. Further, the jury allocated sixty (60) percent of the fault for the accident to Harold Artigue and forty (40) percent of the fault for the accident to sudden emergency/third party fault.

[3 Cir. 3]Richard timely filed the appeal before us asserting seven assignments of error. The first three assignments relate to the jury's allocation of fault. The final four relate to the jury's damage awards. They are as follows:

ASSIGNMENTS OF ERROR:

1. The trial court committed reversible error by providing a jury verdict form over plaintiff's objection that included interrogatories regarding the existence of a sudden emergency, third party fault or the fault of Margaret Richard.

2. The trial court committed reversible error by denying plaintiff's Motion for a Directed Verdict against defendant regarding the lack of evidence introduced by defendant regarding the issue of third party fault or sudden emergency.

3. The jury committed manifest error when it assessed forty (40%) percent

[87 So.3d 1001]

of the fault in this accident to sudden emergency or third party fault.

4. The jury committed manifest error when it awarded plaintiff, Margaret Richard, future wages loss or loss of earning capacity of only $225,000.00, when the evidence at trial supported a much higher award.

5. The jury committed manifest error when it awarded to plaintiff, Margaret Richard, $555,833.00 in future medical when the evidence at trial supported by the experts was a much higher award.

6. The jury committed manifest error when it awarded to plaintiff, Margaret Richard, only $10,000.00 in past wage loss when the evidence at trial supported a much higher award.

7. The jury committed manifest error when it awarded plaintiff, Margaret Richard, only $325,000.00 in general damages for the extreme injuries suffered by Margaret Richard.

ASSIGNMENT OF ERROR NUMBERS ONE TWO, AND THREE:

Richard contends in her first two assignments of error that the trial court committed reversible error by providing a jury verdict form over her objection that included interrogatories regarding the existence of a sudden emergency, third party fault, or the fault of Margaret Richard and by denying her Motion for a Directed Verdict against defendant [3 Cir. 4]regarding the lack of evidence introduced by defendant regarding the issue of third party fault or sudden emergency. In her third assignment of error, Richard contends that the jury committed manifest error when it assess forty (40%) percent of the fault in this accident to sudden emergency or third party fault.

Each of these three assignments of error has a different standard of review. A trial court has discretion in determining the contents of a jury form, thus, the standard of review on the first asserted assignment of error is whether the trial court abused that discretion. Kelly–Williams v. AT&T, 11–1179 (La.App. 3 Cir. 2/1/12), ––– So.3d ––––. In the second assignment of error, the applicable standard of review on a motion for directed verdict is whether the evidence in the record is such that a reasonable person could not reach a verdict to the contrary. Hebert v. BellSouth Telecommunications, Inc., 01–223 (La.App 3 Cir. 6/6/01), 787 So.2d 614,writ denied,01–1943 (La.10/26/01), 799 So.2d 1145. Finally, in the third assignment of error, it is well-settled that a jury's allocation of fault is a finding of fact that is subject to the manifest error standard of review. Duncan v. Kansas City Southern Railway Co., 00–66 (La.10/30/00), 773 So.2d 670.

Although these assignments of error have three different standard of review, they have a common denominator, to question whether the record supports a finding of fault by anyone other than Artigue. Accordingly, we will combine these three assignments and review the record on this issue.

Louisiana Revised Statutes 32:81(A) states, “[t]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.”

[3 Cir. 5]This court, in Cox v. Shelter Ins. Co., 09–958 (La.App. 3 Cir. 4/7/10), 34 So.3d 398,writ denied,10–1041 (La.9/17/10), 45 So.3d 1044, dealt with a situation similar to the case before us. In Cox, we stated the following:

If a following motorist strikes the forward vehicle from the rear, he or she is presumed to have breached the duty

[87 So.3d 1002]

imposed by La. R.S. 32:81(A). Mart v. Hill, 505 So.2d 1120 (La.1987).

A following motorist may, however, rebut the presumption by demonstrating that he or she had his car under control, closely observed the preceding vehicle, and followed at a safe distance under the circumstances, or by proving that the driver of the lead car negligently created a hazard which the following motorist could not reasonably avoid. McCullin v. U.S. Agencies Cas. Ins. Co., 34,661 (La.App. 2 Cir. 5/9/01), 786 So.2d 269. The following motorist bears the burden of showing he was not negligent. Wheelis v. CGU Ins., 35,230 (La.App. 2 Cir. 12/7/01), 803 So.2d 365.

Menard v. Federated Mut. Ins. Co., 05–85, pp. 3–4, (La.App. 3 Cir. 6/22/05), 906 So.2d 746, 750,writ denied,05–1925 (La.3/10/06), 925 So.2d 506.

Cox, 34 So.3d at 408.

There is no dispute that Artigue's truck struck the Menard automobile, which, in turn, struck the Richard automobile from the rear. Further, there is no dispute that Artigue is presumed to be in breach of the duty imposed by La.R.S. 32:81(A). Thus, Artigue had the burden to prove that, “he [ ] had his car under control, closely observed the preceding vehicle, and followed at a safe distance under the circumstances, or by proving that the driver of the lead car negligently created a hazard which the following motorist could not reasonably avoid.” Cox, 34 So.3d at 408 ( citing McCullin v. U.S. Agencies Cas. Ins. Co., 34,661 (La.App. 2 Cir. 5/9/01), 786 So.2d 269).

After thoroughly reviewing the record, we find a complete absence of any evidence that Artigue carried his...