Snearl v. Mercer

• Decision Date: 16 February 2001
• Docket Number: No. 1999 CA 1738.,No. 1999 CA 1739.,1999 CA 1738.,1999 CA 1739.
• Citation: 780 So.2d 563
• Parties: Jerrod SNEARL and Ellouise Stewart v. Gary T. MERCER, Mercer Construction Services, Bituminous Ins., Co., Succession Representative of the Estate of Benny L. Frank, ABC Ins. Co., and State of Louisiana Through the Department of Transportation and Development Dalton Olinde v. Gary T. Mercer, Mercer Construction Services, Bituminous Ins., Co., Succession Representative of the Estate of Benny L. Frank, ABC Ins., Co., and State of Louisiana Through the Department of Transportation and Development
• Court: Court of Appeal of Louisiana — District of US

Page 563

780 So.2d 563

Jerrod SNEARL and Ellouise Stewart v. Gary T. MERCER, Mercer Construction Services, Bituminous Ins., Co., Succession Representative of the Estate of Benny L. Frank, ABC Ins. Co., and State of Louisiana Through the Department of Transportation and Development

Dalton Olinde v. Gary T. Mercer, Mercer Construction Services, Bituminous Ins., Co., Succession Representative of the Estate of Benny L. Frank, ABC Ins., Co., and State of Louisiana Through the Department of Transportation and Development

No. 1999 CA 1738.

No. 1999 CA 1739.

Court of Appeal of Louisiana, First Circuit.

February 16, 2001.

Rehearing Denied April 2, 2001.

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Joseph J. McKernan, Kirby Guidry, Baton Rouge, Patrick Pendley, Plaquemine, Counsel for Plaintiffs-Appellees Jerrod Snearl and Ellouise Stewart.

Lewis O. Unglesby, Baton Rouge, Allen J. Myles, Plaquemine, Counsel for Plaintiff-Appellee Dalton Olinde.

Roy Maughan, Sr., Baton Rouge, Counsel for Plaintiff-Appellee Rhonda Frank.

Henry Salassi, Jr., Keith C. Armstrong, Baton Rouge, Counsel for Defendant-Appellant State of Louisiana.

Gregory Di Leo, New Orleans, Counsel for Intervenor LA Safety Assn. of Timbermen.

Before LeBLANC, KUHN and MOORE,¹ JJ.

D. MILTON MOORE, III, J. Pro Tern.

The State of Louisiana, through the Department of Transportation and Development, (DOTD) appeals an adverse judgment entered on a jury verdict. The jury found DOTD 90% at fault in this personal injury case. The remaining 10% of fault was attributed to the driver of the dump truck, Benny Frank, in which the plaintiffs, Jerrod Snearl and Dalton Olinde, were passengers. Following post-trial proceedings, the District Court entered judgment in accordance with the verdict, decreeing that DOTD was 90% at fault, and thus liable for the damages, which totaled in excess of $9 million for Snearl and in excess of $1 million for Olinde. Snearl's mother, Ellouise Stewart, was awarded $300,000 for loss of consortium. The trial court imputed the 10% fault of the driver, Frank, to the plaintiffs' employer, Gary Mercer Construction Services, Inc. and reallocated the employer fault to DOTD. DOTD appeals.

FACTS

On November 16, 1994, Snearl, Olinde and Frank, all employees of Mercer Construction, left Brusly, Louisiana, around 6:30 a.m. in a company dump truck to travel to a job site on Airline Highway where they were scheduled to cut and clear trees. Frank was driving while Snearl sat in the front seat between Frank and Olinde. As the unloaded dump truck approached the Interstate Highway 12 (I-12) overpass at Jefferson Highway, Frank suddenly swerved into the left lane. Because the dump truck's bed was empty, the truck's brakes locked, causing the truck to rotate and skid. When the brakes were released the truck careened into the bridge rail along the overpass and vaulted over the railing to the ground below.

The bridge rail on the I-12 overpass at Jefferson Highway was comprised of a safety walk, parapet and aluminum handrail. The safety walk is a curb in front of the railing wall, 10 inches high by 18 inches wide. The curb and parapet together form the barrier wall. The aluminum handrail on top is for ornamental purposes only, providing no structural benefit.

The truck slid along the top of the railing before falling approximately 30 feet onto the banks of Ward's Creek. The truck hit the ground nose first and then flipped over, crushing the passenger compartment. The truck caught fire sometime after landing on the creek bank. Mark McInnis, an LSU student on his way to classes, dragged Olinde from the truck, probably saving his life. Snearl was caught in the cab after the fire started, unable to move because of significant injuries, including a broken pelvis. Frank was burned to death in the accident.

Snearl sustained severe burns; both of his legs and his penis were later amputated. Olinde sustained a broken left pelvic bone, left arm and nose, a crushed chest, burns and abrasions. He initially spent four months in a hospital and later returned for shoulder surgery.

The case was tried before a jury in Iberville Parish between October 5-14, 1998. By special interrogatories the jury found that the bridge railing in question presented an unreasonable risk of harm, that DOTD should have known of the unreasonable risk of harm, and that DOTD had a reasonable opportunity to remedy the unreasonable risk of harm. The jury found that the unreasonable risk of harm was a proximate cause of the damages suffered by the plaintiffs. The jury also found Frank negligent and found that his negligence was a proximate cause of the damages. The jury made a further finding that the driver of a gold Volvo, which was alleged to have suddenly pulled in front of Frank prior to Frank losing control of the dump truck, was not negligent. The jury assigned 90% fault to DOTD and 10% fault to Frank.

The jury awarded Snearl damages as follows: $475,104.67 for medical expenses; $3 million for future medical costs and future life care; $41,698 for actual lost earnings to date of trial; $536,074 for future impairment of earnings; $1 million for past and future pain and suffering; $1 million for past and future mental pain and anguish; $1 million for loss of enjoyment of life; $1 million for permanent disability; $1 million for permanent disfigurement; for a total award of $9,352,826.67.

The jury awarded damages to Olinde as follows: $151,145.38 for medical expenses; $25,000 for future medical costs and future life care; $119,099 for future impairment of earnings; $200,000 for past and future pain and suffering; $200,000 for past and future mental pain and anguish; $200,000 for loss of enjoyment of life; $200,000 for permanent disability; $15,000 for permanent disfigurement; for a total award of $1,110.244.38.

The jury found that Ellouise Stewart, mother of Snearl, suffered a loss of consortium and awarded her $300,000.

DOTD appeals, urging 5 assignments of errors, to-wit:

I. The verdict and judgment finding that the bridge railing presented an unreasonable risk of harm are legally and manifestly erroneous.

II. The verdict and judgment finding Benny Frank only 10% at fault in causing the plaintiffs' damages are manifestly erroneous.

III. The trial erred as a matter of law in requiring DOTD to pay 100% of plaintiffs' damages.

IV. The trial court prejudicially erred in permitting plaintiff to testify regarding the alleged "defect".

V. The jury's damage awards are excessive.

Before addressing the appellant's assignments of error, a number of related and preliminary procedural matters must be addressed by the court. Discussion of these matters follows.

MOTION TO INTERVENE

Judgment was signed and filed on December 4, 1998. DOTD timely filed a motion and order for suspensive appeal on December 14, 1998. On April 11, 2000, a "Motion for Intervention and Incorporated Memorandum in Support" on behalf of the American International Group Technical Services, Inc. (AIG) was filed with this court. AIG's motion noted that it wished to intervene in the instant appeal, representing that AIG was the excess insurer of the State. AIG further averred that it may be liable for payment as the State's excess insurer of all amounts above the limits of the State's self-insured policy of $1 million. AIG further alleged its potential liability to be in excess of $10 million.

AIG wished to intervene by filing an attached brief, which AIG alleged would assist the court in its consideration of the matter on appeal. The motion for intervention alleged that the attached brief raised no new issues or error for consideration on appeal, but rather "only focuses the Court upon the proper standard of review to employ in this matter," as well as replying to the plaintiffs' supplemental brief filed March 1, 2000. On April 26, 2000, in a "Supplemental and Amended Motion for Intervention and Incorporated Memorandum in Support," National Union Fire Insurance Company of Pittsburgh, Pennsylvania (National Union), sought to file a similar motion for intervention, alleging that it was erroneously identified as AIG in the previously filed motion for intervention. The supplemental and amended motion sought only to correct the name of the would-be intervenor.

On May 26, 2000, Snearl filed an opposition memorandum opposing the filing of an intervention and/or appeal by MG and/or National Union. Snearl notes that the motion for intervention "is for all practical purposes an appeal by AIG and/or National Union", noting that neither AIG nor National Union had posted a bond for its appeal, nor did AIG or National Union file a notice of appeal, motion for appeal or any other pleading within the time delays prescribed by articles 2087 and 2123 of the Louisiana Code of Civil Procedure. Snearl urges that while DOTD is exempt by statute from posting a bond, no such exemption exists for the State's insurer. Snearl argues that the would-be intervenors knew or should have known that the jury verdict in the case had been rendered December 4, 1998, or some 16 months prior to the date it filed its motion for intervention. Snearl urges this court to dismiss the motion to intervene by MG and/or National Union.

The motion to intervene was referred to the panel considering the merits of the appeal. Thereafter, on June 14, 2000, counsel for National Union filed another memorandum entitled "Reply to Plaintiffs' Opposition to Motion for Intervention". In its reply memo, National Union frames the issue in the following manner: "whether [a] person with an interest in the judgment, but who has not been made a party, is obliged to make himself a party to the proceedings by filing its own appeal." National Union contends the answer to this threshold question is "No", citing several cases which purport to grant it the right to intervene in a pending appeal in which an intervenor...