Soileau v. LaFosse
| Decision Date | 14 March 1990 |
| Docket Number | No. 88-1241,88-1241 |
| Citation | 558 So.2d 294 |
| Parties | Charles Mitchell SOILEAU, Plaintiff-Appellant, v. Thomas J. LaFOSSE, III, et al., Defendants-Appellees. 558 So.2d 294 |
| Court | Court of Appeal of Louisiana — District of US |
Richard Vidrine, Ville Platte, for plaintiff-appellant.
Dauzat, Falgoust, Caviness & Bienvenu, Steven Bienvenu, Opelousas, for defendants-appellees.
Before FORET, STOKER and KING, JJ.
This suit arises from a two-vehicle collision which occurred on March 28, 1984. Plaintiff, Charles Soileau, filed suit claiming damages for loss of income, property damage and the rental cost of a motor vehicle against Thomas J. LaFosse, III (driver of the other vehicle), Sandra LaFosse (owner of the vehicle driven by Thomas LaFosse) and Republic Vanguard Insurance Company (Sandra LaFosse's liability insurer). The trial court held in favor of plaintiff, finding defendant, Thomas LaFosse, 65% at fault in causing the accident and awarding plaintiff damages for the cost of repairs to his truck and vehicle rental costs. The trial court denied plaintiff's claim for loss of income on the basis of plaintiff's failure to mitigate his damages.
Plaintiff appeals the trial court's judgment contending the trial court erred in finding plaintiff comparatively negligent and in failing to award damages for loss of income.
Defendants answered the appeal contending the trial court erred in awarding damages to plaintiff because plaintiff made a complete assignment of his litigious rights to Pitre Ford Mercury, Inc.
At about 9:30 p.m. on March 28, 1984 plaintiff was driving his 1981 Ford one-half ton pickup truck east on West Main Street in Ville Platte, Louisiana. As plaintiff drew near the Sonic Drive-In he noticed defendant drive a 1979 Chevrolet Impala up the Sonic driveway and slow down as defendant neared West Main Street. Plaintiff removed his foot from the accelerator when he observed defendant drive toward the street but replaced it as he saw defendant's vehicle slow down. As plaintiff proceeded to drive past the Sonic driveway, defendant attempted to enter and make a left-hand turn onto West Main Street. Defendant ran into the side of plaintiff's truck.
The parties have assigned several charges of error on the part of the trial court. The record establishes that the plaintiff made a partial assignment of his claim to Pitre Ford Mercury, Inc. The trial court found that the amount of the property damages sustained by plaintiff's automobile was $3012.90. The trial court also found that plaintiff suffered damages as a result of the necessity of renting a substitute vehicle while plaintiff's vehicle was being repaired, and this figure was fixed at $890.18. The assignment issue will be discussed below.
The trial court found that plaintiff, Charles Mitchell Soileau, was guilty of negligence to the extent of 35% compared with LaFosse's negligence of 65%. Consequently, the trial judge gave judgment in favor of plaintiff in the sum of $2537 ($3012.90 plus $890.18 equals $3903.08 multiplied by 65% equals $2537).
As noted above plaintiff-appellant complains in this appeal asserting two errors on the part of the trial judge: (1) finding plaintiff comparatively negligent, and (2) failing to award damages for loss of income.
We attach to this opinion as Appendix I a copy of Plaintiff's Exhibit P-3 consisting of a partial assignment of plaintiff's claim against the defendants.
Defendants answered the appeal contending the trial court erred in awarding damages to plaintiff because he made a complete assignment of his litigious rights against defendants to Pitre Ford Mercury, Inc. in payment of the repairs to his truck. The evidence does not support defendants' contention that plaintiff assigned his entire claim; the assignment was only partial.
The assignment of claim document introduced into evidence clearly shows that plaintiff made a partial assignment of the damages he hoped to recover as a result of this lawsuit. The assignment of damages excludes any damages recovered for medical expenses, excludes any amount plaintiff owes in attorney's fees and is limited to the sum of $8065.55. In spite of the fact that plaintiff has not recovered any damages for personal injuries and has not been awarded any damages in excess of $8065.55, plaintiff has still reserved for himself an amount sufficient to discharge his attorney's fees. Therefore, plaintiff did not make a complete assignment of his claim and was a proper party plaintiff to enforce the claim under LSA-C.C.P. art. 698.
Article 698 provides that where an incorporeal right has been partially assigned it shall be enforced judicially by the assignor and the assignee. If the entire right is assigned, the assignee alone is the proper party to bring the suit. Paragraph (d) of the Official Revision Comments under Article 698 explains the effect of the article, depending on whether the assignment is of the entire right or a partial assignment:
Defendants raised the assignment issue for the first time in their answer to the appeal to this court. We find that Pitre Ford Mercury, Inc. was a necessary party, not an indispensable party. The defendants did not object to the nonjoinder of the necessary party, Pitre Ford Mercury, Inc. No doubt the reason defendants made no objection by way of exception of nonjoinder is that the assignment only came to light during the trial when plaintiff referred to the assignment in response to the charge that Soileau never paid Pitre Ford Mercury, Inc. and would not have to pay. Plaintiff took the position that the assignment was an acknowledgment of the debt and the assignment of an interest was payment of a sort. The plaintiff also relies on a provision in the assignment which we now consider. The assignment was introduced in evidence as P-3.
In order to complete our holding on the assignment question, we must consider a provision in the assignment contract itself. But for one provision in the assignment document the defendants might prevail on their argument that plaintiff may not recover damages because he had assigned all of his rights. At least it might be valid as to items of damage plaintiff did not reserve to himself, medical expenses and attorney's fees which plaintiff might owe.
Page two of the assignment contains the following provision:
"IT IS UNDERSTOOD AND AGREED by and between assignor and assignee that payment of the sum of $8,086.55 will be made to assignee, PITRE FORD MERCURY, INC., at the time of the disposition of assignor's claim, whether it be by compromise or after judgment is rendered and payment therefor is made."
There is a clear implication from this language that Pitre Ford Mercury, Inc. has authorized plaintiff to pursue recovery in this case. As we see it, Pitre Ford Mercury, Inc. has contracted to await payment of the assigned amount until plaintiff makes a recovery. For these reasons the defense of assignment of plaintiff's rights must fall. Under the paragraph quoted above, payment to Pitre Ford Mercury, Inc. of any sum which may be due it is strictly between it and plaintiff. We reject the assignment defense.
With this analysis in mind we will consider plaintiff's assignments of error consisting of the finding that he was comparatively negligent and the failure of the trial judge to award plaintiff a sum for loss of income.
We have considered the merits of the plaintiff's claim for loss of income and we affirm the trial court's denial of the claimed items of damage.
The trial court held that plaintiff was not entitled to damages for loss of income because he failed to mitigate his damages. Plaintiff's welding rig was bolted to the bed of his truck through holes he had made in the truck frame, and plaintiff apparently worked from his truck. Plaintiff did not inform defendants that he needed a vehicle which would accommodate his welding rig and did not attempt to rent one himself. Had plaintiff informed defendants of his need for a truck which could accommodate this welding equipment, they could have arranged to supply his need.
The doctrine of unavoidable consequences bars recovery of those damages which occurred after the initial injury and which might have been averted by reasonable conduct on the part of the plaintiff. The standard is that of a reasonable man under like circumstances. Philippe v. Browning Arms Co., 395 So.2d 310 at 318, n. 12 (La.1981); see also Till v. Delta School of Commerce, Inc., 487 So.2d 180 (La.App.3d Cir.1986).
We find that plaintiff failed to act as a reasonable man in not attempting to obtain a replacement vehicle for his welding rig either...
To continue reading
Request your trial
-
95-271 La.App. 3 Cir. 10/4/95, Cobb v. Kleinpeter
...contention, for even those aggrieved by the actions of others have a duty to mitigate or ameliorate damages. Soileau v. LaFosse, 558 So.2d 294 (La.App. 3 Cir.1990). 3 Our law seeks to fully repair injuries which arise from a legal wrong. However, an accident victim has a duty to exercise re......
-
Loveday v. Travelers Ins. Co.
...and to desist from entering until it is apparent to a reasonably prudent person that such can be done in safety. Soileau v. LaFosse, 558 So.2d 294 (La.App. 3d Cir.1990); Wells v. Allstate Insurance Co., 510 So.2d 763 (La.App. 1st Cir.) writ denied, 514 So.2d 463 (La.1987); Hardee v. St. Pau......
-
Starnes v. Caddo Parish School Bd.
...reasonable conduct on the part of the plaintiff. The standard is that of a reasonable man under like circumstances. Soileau v. LaFosse, 558 So.2d 294 (La.App.3d Cir.1990). An accident victim is obligated to exercise reasonable diligence and ordinary care to minimize his damages after the in......
-
Daniels v. Burridge
...safety. (Emphasis added.) Corvers v. Acme Truck Lines, 95-925 (La. App. 5 Cir. 4/16/96), 673 So.2d 1088, 1090 (citing Soileau v. LaFosse, 558 So.2d 294 (La.App. 3 Cir.1990)). Defendants argue that the trial court erred by not finding that Plaintiff's conduct contributed to the accident in q......