Stokes v. Stewart

• Decision Date: 22 December 2000
• Docket Number: No. 99 CA 0878.,99 CA 0878.
• Parties: Richard L. STOKES, and Genia C. Stokes v. Darrell W. STEWART, Tommy Perkins, Jr., Sphere Drake Insurance, Safeway Insurance Company, UnionAmerica Insurance Company, and Credit General Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

774 So.2d 1215

Richard L. STOKES, and Genia C. Stokes v. Darrell W. STEWART, Tommy Perkins, Jr., Sphere Drake Insurance, Safeway Insurance Company, UnionAmerica Insurance Company, and Credit General Insurance Company.

No. 99 CA 0878.

Court of Appeal of Louisiana, First Circuit.

December 22, 2000.

Mary Heck Barrios, Denham Springs, for Plaintiffs-Appellees Richard L. and Genia C. Stokes.

Keith M. Borne, Lafayette, for Defendants-Appellants Safeway Insurance Company and Tommy Perkins, Jr.

John Culotta, Metairie, for Defendant Sphere Drake Insurance Co.

James A. Prather, New Orleans, for Defendant Credit General Insurance Co.

Before: LeBLANC, FOIL, GONZALES, WHIPPLE, and GUIDRY, JJ.

GUIDRY, J.

In this personal injury suit, appellants, Tommy Perkins, Jr. and Safeway Insurance Company (Safeway), appeal the trial court's judgment in favor of appellees, Richard L. Stokes and Genia C. Stokes. We affirm in part, reverse in part, and render.

FACTS AND PROCEDURAL HISTORY

On the morning of April 9, 1995, Mr. Stokes' dump truck was struck head-on by a 1985 Cadillac Deville which left its lane of travel, crossed two traffic lanes and a turning lane, and entered the lane in which Mr. Stokes was driving. The Cadillac was driven by Darrell Stewart and was owned by Mr. Perkins. Mr. Stewart was killed in the collision. Urine samples taken from Mr. Stewart by the coroner were later tested and cocaine was detected in the urine. Additionally, analysis of blood samples taken from Mr. Stewart revealed that he had a blood "ethyl alcohol level of .10 grams percent."

On July 26, 1995, appellees filed suit, naming as defendants the estate of Mr. Stewart; Mr. Perkins; Safeway, Mr. Perkins' insurer; Sphere Drake Insurance and UnionAmerica Insurance Company (collectively, "property insurance carriers"), Mr. Stokes' property damage insurers, and Credit General Insurance Company (Credit General), Mr. Stokes' uninsured/underinsured motorist carrier.¹ A bench trial was held September 9-10, 1996. A judgment was rendered in favor of appellees on November 4, 1996. Notice of the judgment was mailed November 18, 1996.

Motions for new trial were filed by appellees and Credit General on November 20, 1996. Likewise, Safeway filed a motion for new trial on November 25, 1996. Additionally, Safeway and Mr. Perkins filed an oral motion to recuse Judge M. Douglas Hughes from the case. The motions were heard on February 24, 1997, and an order granting the motions for new trial and recusal was issued at the hearing and signed on March 18, 1997.

The case was re-allotted to Judge Robert H. Morrison. A new trial was held on April 2, 1998. All the evidence from the original trial was reintroduced at the new trial. In addition, new testimony of Sergeant Darrell Arceneaux, the investigating officer, and Mr. Stokes was taken.

A judgment in favor of appellees and against Credit General and appellants was rendered on July 21, 1998, and signed October 27, 1998.² Pursuant to this judgment, Mr. Stokes was awarded $10,000.00 in general damages, $10,757.78 for property damage, $600.00 for towing expenses, and $10,000.00 for loss of income, subject to a credit of $10,000.00 in favor of Safeway for the amount previously paid to Mr. Stokes by Safeway. Mr. Stokes was also awarded $25,000.00 in punitive damages, and Mrs. Stokes was awarded $2,500.00 for loss of consortium.

ASSIGNMENTS OF ERROR

Mr. Perkins and Safeway now appeal from this judgment and assert the following assignments of error:

I. The Honorable Trial Court erred in concluding that Tommy Perkins, Jr. was vicariously liable for damages emanating from the negligent acts of Darrell Stewart, both from a compensatory, as well as a punitive standpoint.

II. The Honorable Trial Court erred in awarding plaintiff, Richard Stokes, $10,000 in general damages and plaintiff, Genia C. Stokes, $2,500 for loss of consortium.

III. The Honorable Trial Court erred in awarding plaintiff, Richard Stokes, $10,000 in lost income.

IV. The Honorable Trial Court erred in concluding that plaintiffs were entitled to an award of punitive damages in the amount of $25,000.

Liability

At trial, Sergeant Darrell Arceneaux, the officer that investigated the accident, testified that he called Mr. Perkins the afternoon of the accident. The purpose of the call was to determine if Mr. Perkins owned the Cadillac and to get some background information as to how Mr. Stewart obtained the car. According to Sgt. Arceneaux, Mr. Perkins informed him that between 9:00 and 9:30 a.m., he awakened Mr. Stewart to go to Payless Cashways to pick up some building materials for Mr. Perkins. According to Sgt. Arceneaux, Mr. Perkins said that he gave Mr. Stewart money for the materials and for gas and loaned him the Cadillac. Sgt. Arceneaux also testified that Mr. Perkins voluntarily informed him that Mr. Stewart was a crack cocaine user.

Mr. Stokes' testimony corroborated that Mr. Perkins had knowledge of Mr. Stewart's substance abuse problem before loaning him the car. According to Mr. Stokes, he spoke with Mr. Perkins by telephone a day or two after the accident. Mr. Stokes testified that during this conversation, Mr. Perkins said that he knew Mr. Stewart and that Mr. Stewart did odd jobs for him. According to Mr. Stokes, Mr. Perkins said that he sent Mr. Stewart on an errand, and although he knew Mr. Stewart was a heavy drug user, he did not know he was in such bad shape.

Mr. Perkins, however, testified that he loaned the car to Mr. Stewart when Mr. Stewart asked to borrow his truck to go get something to eat. According to Mr. Perkins, Mr. Stewart did not appear to be under the influence of alcohol at the time. He further testified that he had no knowledge of any prior illegal drug or alcohol use by Mr. Stewart. Finally Mr. Perkins testified that he never told anyone that Mr. Stewart was a drug addict. He, however, admitted that he had seen Mr. Stewart hanging around with individuals that he heard were drug users.

Generally, an owner of a vehicle is not personally liable for damages which occur while another is operating the vehicle. Harris v. Hamilton, 569 So.2d 1, 3 (La.App. 4th Cir.1990). Exceptions to this rule occur only when the driver is on a mission for the owner of the vehicle, when the driver is an agent or employee of the owner, and when the owner is himself negligent in entrusting the vehicle to an incompetent driver. Jones v. Western Preferred Casualty Company, 633 So.2d 667, 669 (La.App. 1st Cir.1993), writ denied, 94-0273 (La.4/4/94), 635 So.2d 1123.

Under the agent and/or employee theory, a master or employer is liable for the tortious conduct of a servant or employee which is within the scope of authority or employment, but a principal is not liable for the physical torts of a non-servant agent. Rowell v. Carter Mobile Homes, Inc., 500 So.2d 748, 751 (La.1987). Only when the relationship of the parties includes the principal's right to control physical details of the actor as to the manner of his performance which is characteristic of the relation of master and servant does the person in whose service the act is done become subject to liability for the physical tortious conduct of the actor. Lasseigne v. American Legion, Nicholson Post No. 38, 543 So.2d 1111, 1114 (La.App. 1st Cir.1989). Thus, the determination of whether a party may be held vicariously liable for the torts of another depends on whether the tortfeasor is characterized as a servant. Whetstone v. Dixon, 616 So.2d 764, 770 (La.App. 1st Cir.), writs denied, 623 So.2d 1333 (La.1993).

A servant has been defined as one employed to perform services in the affairs of another and who is subject to the other's control or right to control with respect to the physical conduct in the performance of the services. Ermert v. Hartford Insurance Company, 559 So.2d 467, 476 (La.1990). In contrast, a non-servant agent, although a contributor to the business of his master, is not such a part of his master's business that his physical acts and the time to be devoted to the business are subject to control. Blanchard [v. Ogima, 253 La. 34, 215 So.2d 902, 907 (1968).]

Whetstone, 616 So.2d at 770.

Under the negligent entrustment theory, the lender of a vehicle is not responsible for the negligence of the borrower, unless he had or should have had knowledge that the borrower was physically or mentally incompetent to drive. Barnett v. Globe Indemnity Company, 557 So.2d 300, 301 (La.App. 4th Cir. 1990); Reuther v. Landreneau, 480 So.2d 376, 379 (La.App. 4th Cir.1985), writ denied, 482 So.2d 628 (La.1986). However, an owner of an automobile who knowingly entrusts it to an intoxicated, or otherwise incompetent, driver is responsible for the harm resulting from the incompetent operation of the vehicle. Pereira Enterprises, Inc. v. Soileau, 551 So.2d 39, 40 (La.App. 1st Cir.1989); Danos v. St. Pierre, 383 So.2d 1019, 1021 (La.App. 1st Cir.1980), affirmed, 402 So.2d 633, 636-37 (La.1981). We note, however, that we can find no authority which places a duty on an owner or lender of an automobile to make an inquiry into one's driving habits or record when no reason exists to place the lender on notice of the borrower's disability or incompetence. Reuther v. Landreneau, 480 So.2d at 379.

In Pereira Enterprises, Inc. v. Soileau, 551 So.2d at 40-42, this court determined that, absent testimony or other evidence to indicate that an owner of an automobile knew or should have known that the driver was intoxicated or incompetent, the owner could not be held negligent for allowing her to drive his automobile. In Pereira Enterprises, the owner of an automobile met the operator in a lounge for the first time. The two were present in the lounge together for approximately forty-five minutes during which time the owner consumed one or two cans of beer. The owner did not know whether the driver had been drinking before he arrived at the lounge; the driver did not appear to be intoxicated in that her...