Rodriguez-Zaldivar v. Leggett

• Decision Date: 28 September 2022
• Docket Number: 2021-CA-0478
• Parties: JOSE RODRIGUEZ- ZALDIVAR AND DYLCIO RODRIGUEZ CRUZ v. CHARLES LEGGETT AND PROGRESSIVE CASUALTY INSURANCE COMPANY
• Court: Court of Appeal of Louisiana — District of US

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JOSE RODRIGUEZ- ZALDIVAR AND DYLCIO RODRIGUEZ CRUZ
v.
CHARLES LEGGETT AND PROGRESSIVE CASUALTY INSURANCE COMPANY

No. 2021-CA-0478

Court of Appeals of Louisiana, Fourth Circuit

September 28, 2022

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-12246, DIVISION "C" Honorable Sidney H. Cates, Judge

Miguel A. Elias Paula J. Ferreira Graham Brian LAW OFFICES OF MIGUEL A. ELIAS COUNSEL FOR PLAINTIFFS/APPELLEES

Christopher M. Short Nat G. Kiefer, Jr. Megan C. Kiefer Amanda G. Morse KIEFER & KIEFER COUNSEL FOR DEFENDANT/APPELLANT

Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins, Judge Paula A. Brown, Judge Dale N. Atkins

JOY COSSICH LOBRANO, JUDGE

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This is a motor vehicle accident case. Defendant/appellant, Progressive Security Insurance Company ("Progressive"), appeals the March 10, 2021 judgment of the district court, which awarded plaintiffs/appellees, Jose Rodriguez-Zaldivar ("Zaldivar") and Dylcio Rodriguez Cruz ("Cruz") (collectively, "Plaintiffs"), $15,000 and $65,000, respectively, in damages. For the reasons that follow, we vacate the judgment and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

This litigation arises from a vehicle collision in the French Quarter on January 15, 2015, wherein Charles Leggett ("Leggett") backed his Chevrolet Tahoe into a parked utility van. On December 29, 2015, Zaldivar and Cruz filed suit against Leggett and his automobile insurer, Progressive, alleging personal injuries sustained in the collision. On November 7, 2016, Progressive took Zaldivar's and Cruz's discovery depositions. Plaintiffs' attorneys represent that, subsequently, in 2017, Zaldivar and Cruz were both deported to Honduras and have since been unable to return to the United States.

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Meanwhile, on June 5, 2017, Progressive filed a motion to compel an independent medical examination ("IME") of Cruz, which the district court granted on August 25, 2017. When Cruz failed to attend the IME appointment scheduled on October 25, 2017, Progressive filed a motion to dismiss, or, alternatively, lesser discovery sanctions under La. C.C.P. art. 1471, for failure to comply with the court order. On March 13, 2018, the district court granted the motion and dismissed Cruz's claims. On appeal, however, this Court found an "absence of evidence to support a finding of willfulness, bad faith, or fault," reversed the judgment of dismissal, and remanded the case for further proceedings. Rodriguez-Zaldivar v. Leggett, 18-0410, p. 5 (La.App. 4 Cir. 1/23/19), 318 So.3d 859, 862 (quotation omitted). Thereafter, on April 1, 2019, Progressive filed a new motion to dismiss, or, in the alternative, motion for sanctions. On June 25, 2019, the district court denied that motion and declined to impose any lesser discovery sanctions. Cruz has not undergone an IME.

On October 2, 2020, Plaintiffs filed a motion to testify via Zoom in lieu of personal appearance at trial, which was denied. The district court, however, permitted Plaintiffs' depositions to be used at trial on the basis that plaintiffs were "unavailable."

This matter proceeded to a bench trial on October 21, 2020, where Plaintiffs did not appear, but were represented by counsel. Because Leggett was never served with Plaintiffs' petition for damages, during trial, the district court orally dismissed all claims against Leggett. Plaintiffs' depositions were admitted into evidence,

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along with their medical records and the Progressive policy. Plaintiffs did not call any live witnesses. Progressive moved for involuntary dismissal after the close of Plaintiffs' case in chief, and the district court took the motion under advisement. Progressive called Leggett as its only witness. During Leggett's testimony, he admitted that he backed his Chevrolet Tahoe into the utility van, but Leggett denied that anyone was inside the van at the time of the collision. At the close of trial, the district court denied involuntary dismissal, found Leggett 100% at-fault for the accident, found Progressive liable for insurance coverage, and rendered judgment against Progressive awarding Zaldivar $15,000 in damages and Cruz $65,000 in damages.

ASSIGNMENTS OF ERROR

Progressive brought the instant suspensive appeal, wherein it raises the following six assignments of error:

1. The trial court erred in allowing Plaintiffs to submit their discovery depositions in lieu of testifying live and without establishing their unavailability in accordance with La. C.C.P. art. 1450 and depriving Defendant of its right to cross-examine them at trial.

2. The trial court erred [in] denying Defendant's Motion for Involuntary Dismissal where the Plaintiffs failed to prove insurance coverage in their case.

3. The trial court erred in failing to apportion any fault to Plaintiff(s) where they/he were negligent per se based on having illegally parked in a fire lane.

4. The trial court erred in awarding Cruz $65,000 in damages, which was more than his non-jury stipulation that his damages did not exceed $50,000.

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5. Even if Cruz's damages are reduced to $50,000, the trial court still erred, since he did not prove with expert medical evidence that his right knee injury or arthroscopy were related to the subject accident.

6. The trial court erred in not requiring Cruz to appear for his Court ordered IME and for not sanctioning him when he refused to appear for same.

DISCUSSION

Evidentiary Rulings

The primary issue on appeal is the first assignment of error. Progressive argues that the district court erred in permitting Zaldivar and Cruz to use their depositions in lieu of appearing at trial. We agree.

"A ruling on the admissibility of evidence is a question of law and is not subject to the manifest error standard of review." Trascher v. Territo, 11-2093, p. 4 (La. 5/8/12), 89 So.3d 357, 362 (citing Frank L. Maraist, Louisiana Civil Law Treatise: Evidence and Proof, Vol. 19, § 2.10, p. 36). "A party may not complain on appeal about an evidentiary ruling in the trial court unless the trial judge was given the opportunity to avoid the perceived error, and the ruling 'affected' a 'substantial right' of the party." Id. (quoting Maraist, supra, and citing La. C.E. art. 103(A)(1)). "The trial court has much discretion in determining whether to allow the use of deposition testimony at trial, and its decision will not be disturbed upon review in the absence of an abuse of that discretion." Boutte v. ABC Ins. Companies, 00-0649, p. 8 (La.App. 4 Cir. 2/6/02), 811 So.2d 30, 35 (citation omitted).

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Admissibility of Depositions in Lieu of Trial Testimony - Unavailability

Use of depositions is governed by Article 1450 of the Louisiana Code of Civil Procedure. The...