State Farm Mut. Auto. Ins. Co. v. Lerouge
| Decision Date | 12 November 2008 |
| Docket Number | No. 2007-CA-0919,No. 2007-CA-0918,No. 2007-CA-0920.,2007-CA-0918,2007-CA-0919,2007-CA-0920. |
| Citation | 995 So.2d 1262 |
| Parties | STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY as Subrogee of Yvette Norman v. Gregory R. LeROUGE, Mary J. LeRouge, Hartford Insurance Company, Donnell L. Ducre, Sewerage and Water Board of New Orleans, and National Union Fire Insurance Company. Mary Jane LeRouge and Shirley LeRouge v. New Orleans Sewerage and Water Board, National Union Fire Insurance Company, Donnell L. Ducre, Hartford Insurance Company of the Midwest and Gregory R. LeRouge, Yvette Norman and State Farm Mutual Automobile Insurance Company. Gregory R. LeRouge v. New Orleans Sewerage and Water Board, National Union Fire Insurance Company, Donnell L. Ducre, Hartford Insurance Company of the Midwest, Yvette Norman and State Farm Mutual Automobile Insurance Company. |
| Court | Court of Appeal of Louisiana — District of US |
Robert Angelle, Metairie, LA, Michael G. Gaffney, New Orleans, LA, for Defendants/Appellees, Donnell L. Ducre, the Sewerage and Water Board of New Orleans and National Union Fire Insurance Company.
Timothy A. Jones, Lafayette, LA, for Appellant, Gregory R. LeRouge.
Roger S. Bernstein, Roger Scott Bernstein, APLC, Raceland, LA, for Appellants, Mary Jane LeRouge and Shirley LeRouge.
(Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD and Judge Pro Tempore MOON LANDRIEU).
Mary Jane LeRouge, her husband, Gregory LeRouge, and his mother, Shirley LeRouge, appeal from a judgment of the trial court dismissing their suit against defendants, Sewerage and Water Board of New Orleans (SWB) and Donnell L. Ducre, and allowing Mary Jane LeRouge and Shirley LeRouge to recover thirty-five percent of their damages from Gregory LeRouge.
The litigation arises from a multi-vehicle collision that allegedly occurred in March of 2002, when a vehicle, owned and driven by Yvette Norman allegedly stalled on Highway US-90B near its intersection with Victory Drive in Westwego, Louisiana. As she attempted to exit to the shoulder of the road, Ms. Norman's vehicle was struck from the rear twice, first by a vehicle being driven by Mr. LeRouge and again by the LeRouge vehicle when it was hit in turn from the rear by a truck being driven by Mr. Ducre, an SWB employee in the course and scope of his employment.
State Farm Mutual Automobile Insurance Company (State Farm), as subrogee of Ms. Norman, filed suit against Gregory and Mary Jane LeRouge, Hartford Insurance Company (Hartford) as Mr. LeRouge's insurer, Mr. Ducre, SWB, and National Union Fire Insurance Company (National Union) as SWB's insurer, for sums paid to its insured and her passengers as a result of the accident. On May 15, 2003, State Farm dismissed its claim against Mary Jane LeRouge voluntarily and without prejudice.
Mary Jane and Shirley LeRouge filed suit against SWB, National Union, Mr. Ducre, Hartford, Mr. LeRouge, Ms. Norman, and State Farm, alleging that they suffered injuries as a result of the collision, when they were guest passengers in Mr. LeRouge's vehicle.
Mr. LeRouge filed suit against SWB, National Union, Mr. Ducre, Hartford, Ms. Norman, and State Farm for injuries he claimed to have sustained as a result of the collision. On November 7, 2003, Mr. LeRouge dismissed his claim against Hartford voluntarily and without prejudice.
The three actions were consolidated in the trial court on May 15, 2003.
State Farm filed a Motion for Summary Judgment seeking dismissal of all plaintiffs' claims against both State Farm and its insured, which the trial court denied on January 20, 2004.
On March 22, 2004, Mr. LeRouge filed a supplemental and amending petition against Hartford in its capacity as his uninsured/underinsured motorist carrier.
According to the trial court's Pre-Trial Order signed by the trial court's minute clerk and dated March 15, 2005, the matter was fixed for non-jury trial on the merits on September 19, 2005. The record also contains a Jury Trial Order fixing a jury bond and deposit, signed by the trial court Judge on March 15, 2004.1
On August 5, 2005, Hartford filed an Offer of Judgment to Mr. LeRouge offering to settle his uninsured/underinsured motorist claim for one dollar, reserving all rights, defenses, and objections. Hartford filed identical Offers of Judgment to Mary Jane LeRouge and to Shirley LeRouge.
The trial was continued to September 25, 2006, and was bifurcated, with the liability of the SWB being tried to the court and the liability of the remaining defendants being tried to the jury. Following a three-day trial, the jury entered the following verdict:
1. Was Yvette Norman negligent? NO.
2. [Not applicable]
3. Was Gregory R. LeRouge Negligent? YES
4. Was the negligence of Gregory R. LeRouge a cause in fact of the plaintiffs' injuries? YES
5. Was Donnell L. Ducre negligent? YES
6. Was the negligence of Donnell L. Ducre a cause in fact of the plaintiffs' injuries? YES
7. Please state the percentage of liability, if any, attributable to the following:
Yvette Norman 0%
Gregory R. LeRouge 35%
Donnell L. Ducre 65%
8. Did Shirley LeRouge suffer any damages as a result of the incident of March 21, 2002? YES
9. Please state what sum of money, if any, would reasonably and fairly compensate Shirley LeRouge for the following:
General Damages [pain and suffering] $6500
Past Medical Expenses $ 837
Total Damages for Shirley LeRouge $7337
10. Did Mary Jane LeRouge suffer any damages as a result of the incident of March 21, 2002? YES 11. Please state what sum of money, if any, would reasonably and fairly compensate Mary Jane LeRouge for the following:
General Damages [pain and suffering] $50,000
Past Lost Wages $10,050
Past, Present and Future Medical Expenses $20,200
Total Damages for Mary Jane LeRouge $80,250
12. Did Gregory LeRouge suffer any damages as a result of the incident of March 21, 2002? YES
13. Please state what sum of money, if any, would reasonably and fairly compensate Gregory LeRouge for the following:
General Damages [pain and suffering] $3,000
Past Medical Expenses $4,000
Total Damages for Gregory LeRouge $7,000
The trial court found that Mr. Ducre and SWB were not at fault, and rendered judgment on that basis and on the jury verdict insofar as the latter was not inconsistent with the trial court's findings.
The parties filed post-trial memoranda. Mary Jane LeRouge and Shirley LeRouge, and Gregory LeRouge filed motions for judgment notwithstanding the verdict, or, alternatively, for new trial. State Farm filed a motion for new trial or, in the alternative, to amend the judgment to reflect the award of its subrogation claim. Hartford moved to amend the judgment or, alternatively, for a new trial to reflect the jury verdict of no fault and no liability for Ms. Norman.
Following a hearing on the post-trial motions held on February 23, 2007, the trial court entered judgment on March 21, 2007 as follows:
1. Denying the motions seeking to apportion fault to Ms. Norman;
2. Denying the motions seeking to apportion fault to Mr. Ducre and SWB;
3. Granting the motions seeking to apportion 100% of the fault and liability to Mr. LeRouge;
4. Denying the motions seeking to increase the monetary damage awards to Shirley LeRouge and to Mary Jane LeRouge, and upholding the jury's damage awards to those plaintiffs; and
5. Granting State Farm's and Ms. Norman's motions to amend the judgment to reflect judgment in favor of State Farm in the amount of $9,827.30 against Mr. LeRouge and Hartford as Mr. LeRouge's liability insurance carrier.
On May 17, 2007, Mr. LeRouge filed a Motion for Devolutive Appeal against Mr. Ducre and SWB. On the same day, Mary Jane LeRouge and Shirley LeRouge filed a Motion for Devolutive Appeal against Mr. Ducre and SWB.2 For the reasons that follow, we amend in part and, as amended, affirm the judgment of the trial court.
Mr. Ducre's deposition testimony was read into the record at trial.3 Mr. Ducre testified that he held a commercial driver's license, drove cargo carriers, 109 Howsers, tanks, two-and-a-half ton trucks and dump trucks during his military service, and had been driving SWB trash trucks for about two or three months prior to the accident in question. On the day in question, he was driving from a pumping station to the River Birch Landfill, on the West Bank Expressway toward Highway 90, traveling in the middle lane of traffic. He testified that it had rained earlier in the morning and the street was "a little wet." He had been traveling in that lane for a mile or two, at a speed of thirty-five or forty miles per hour, approximately fifteen feet behind a van, when he saw the van run into the back of a car that he estimated was moving at no more than two or three miles an hour. He hit his brakes in an attempt to avoid hitting the van, slid into the van at an estimated speed of fifteen to twenty miles per hour, and testified that he thought the van hit the car again. Had he attempted to swerve to avoid the van, Mr. Ducre believed he would have hit the vehicles that were on either side of his truck. He stopped, and went to the van to determine if anyone had been hurt. He saw that the only damage to his truck was to the radiator, and that the rear bumper of the van was damaged and the van's rear window was shattered. Mr. Ducre admitted that the investigating police officer issued him a ticket for following too close.4 He went to the Jefferson Parish court where he chose to pay the fine rather than appear before a Judge.
Yvette Norman also testified at trial by deposition.5 She testified that she had routine maintenance performed on her car at Wal-Mart and Pep-Boys, including oil changes about every two months or 3,000 miles. She went to the dealer for extraordinary repairs, such as...
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