Thongsavanh v. Schexnayder

• Decision Date: 07 May 2010
• Docket Number: No. 2009 CA 1462.,2009 CA 1462.
• Citation: 40 So. 3d 989
• Parties: Phouthone THONGSAVANH and Southone Thongsavanhv.Martha W. SCHEXNAYDER, Louisiana Farm Bureau Casualty Insurance Company, Robert Groome and State Farm Fire and Casualty Company.
• Court: Court of Appeal of Louisiana — District of US

40 So.3d 989

Phouthone THONGSAVANH and Southone Thongsavanhv.Martha W. SCHEXNAYDER, Louisiana Farm Bureau Casualty Insurance Company, Robert Groome and State Farm Fire and Casualty Company.

No. 2009 CA 1462.

Court of Appeal of Louisiana First Circuit.

May 7, 2010.

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William C. Rowe, Jr., David C. Bolton, Baton Rouge, Louisiana, for Defendant/Appellant, Martha W. Schexnayder.

Harley M. Brown, Baton Rouge, Louisiana, for Plaintiff/Appellee, Phouthone Thongsavanh.

Before DOWNING, GAIDRY, and McCLENDON, JJ.

GAIDRY, J.

A driver involved in a motor vehicle accident appeals a judgment against her for personal injury damages awarded to a passenger in another vehicle, and the passenger answers the appeal, seeking modification of the allocation of fault and an increase in the damages awarded.For the following reasons, we affirm the trial court's judgment and deny the answer to the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

The plaintiff, Phouthone Thongsavanh, and her husband, Southone Thongsavanh, are natives of Laos and residents of Ascension Parish.Plaintiff, who is presently 58 years old, has unfortunately been quadriplegic and totally disabled since 1998.

This action arose from a motor vehicle accident that occurred shortly after 5:00 p.m. on December 5, 2005 in Ascension Parish, near the City of Gonzales.The accident occurred at the intersection of U.S. Highway 61(Airline Highway) and Louisiana Highway 431 (which becomes Louisiana Highway 30 on the western side of Airline Highway).Airline Highway is a four-lane highway with two northbound lanes and two southbound lanes, with additional right and left turning lanes in both directions at the intersection at issue.Louisiana Highway 431 is a two-lane highway, with a right turning lane for entry into the right or outer northbound lane of Airline Highway.The intersection is controlled by traffic lights.

Immediately prior to the accident, Robert Groome was operating his pickup truck in the right northbound lane of Airline Highway, approaching the intersection.At the same time, Martha W. Schexnayder was operating her automobile in the opposite, southbound direction, in the left turn lane.Plaintiff's husband was operating their Volkswagen Beetle automobile in the right turning or outer lane of Louisiana Highway 431, preparing to turn right onto Airline Highway northbound.Mr. Groome proceeded through the intersection pursuant to a green traffic signal.The traffic signal facing Ms. Schexnayder was also green, but there was no green turn arrow granting turning traffic the right of way.After Ms. Schexnayder initiated a left turn, her automobile struck Mr. Groome's pickup truck on the driver's side, causing it to rotate clockwise.The pickup truck then struck the driver's side of the Volkswagen occupied by plaintiff and her husband.As the result of the impact between Mr. Groome's pickup truck and the Volkswagen, plaintiff sustained significant injuries.

Plaintiff and her husband filed suit on December 5, 2006, naming as defendants Ms. Schexnayder and her liability insurer, Louisiana Farm Bureau Casualty Insurance Company(Farm Bureau), and Mr. Groome and his liability insurer, State Farm Mutual Automobile Insurance Company(State Farm).¹The defendants filed answers, denying liability and affirmatively alleging the comparative fault of each other and plaintiff's husband.

The case was tried before a jury on May 13 and 14, 2008.Following the trial, the jury returned a verdict in favor of plaintiff and against Ms. Schexnayder (defendant) and her insurer, finding defendant 90% at fault, Mr. Thongsavanh 10% at fault, and Mr. Groome free from fault.The jury awarded plaintiff $150,000.00 in total damages, itemized as follows:

The trial court signed a judgment in accordance with the jury's verdict on October 15, 2008, adjudging defendant and Farm Bureau in judgment in solido for $13,674.71 and defendant solely liable for the balance of $121,325.29.²All court costs were assessed to Farm Bureau, and legal interest on the judgment was apportioned to defendant and Farm Bureau according to the terms of Farm Bureau's policy.

On October 29, 2008, defendant and Farm Bureau filed a motion for judgment notwithstanding the verdict(JNOV) and an alternate motion for new trial.Those post-trial motions were heard on January 30, 2009, and denied by the trial court by judgment signed on March 2, 2009.

Defendant now appeals, and plaintiff has answered the appeal.

ASSIGNMENTS OF ERROR

We summarize defendant's assignments of error as follows:

1.The trial court committed legal error by excluding from evidence a recorded statement of one of the defendant drivers.

2.The trial court committed legal error by excluding from evidence diagrams of the accident scene prepared by an accident reconstruction expert.

3.The trial court committed legal error in its qualification of the interpreter used to translate testimony at trial, as the interpreter was not certified and was acquainted socially with plaintiff and her husband.

4.The jury was clearly wrong or manifestly erroneous in its apportionment of only 10% fault for the accident to plaintiff's husband.

5.The jury abused its discretion by awarding excessive amounts for elements of general damages.

In her answer to the appeal, plaintiff contends that the jury was clearly wrong in finding and apportioning 10% of the fault for the accident to her husband and that the jury abused its discretion in awarding her inadequate damages.

DISCUSSION

Written Statement of Defendant Driver

Following the accident at issue, Mr. Groome, the driver of the pickup truck, prepared a brief written statement describing what he observed, and his statement was made part of the investigating state police trooper's accident report.In that written statement, Mr. Groome explained that “[there] was no place to swerve because there was a car pulling onto Hwy 61 [Airline Highway] North bound [ sic ],” and that he“tried to miss the white car but hit it and slammed into the black car.”Defendant's automobile was white; the Volkswagen occupied by plaintiff and her husband was black.The basis of defendant's contention that plaintiff's husband, Mr. Thongsavanh, was negligent was his alleged intrusion into or toward Mr. Groome's lane of travel.

Defendant contends that the written statement was properly admissible in evidence as a “present sense impression” under La.C.E. art. 803(1), which provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(1) Present sense impression.A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

We disagree.Although Mr. Groome acknowledged preparing and signing his written statement on the day of the accident, there was no evidentiary foundation laid to satisfy the critical requirement of immediacy following the perceived event.The supreme court has explained the phrase “immediately thereafter” as “allowing only for ‘the time needed for translating observation into speech.’ ”Buckbee v. United Gas Pipe Line Co., Inc.,561 So.2d 76, 84(La.1990).

We likewise reject defendant's argument that the statement was properly admissible as a prior inconsistent statement to impeach Mr. Groome.Our review of Mr. Groome's trial testimony does not reveal that Mr. Groome actually testified inconsistently with the content of his statement; he simply did not mention the presence or location of the Volkswagen prior to the occurrence of the accident because the questions posed to him did not elicit such information.More importantly, the contents of Mr. Groome's written statement were provided to the jury through his trial testimony.At the request of defendant's counsel, he read his written statement verbatim, acknowledged preparing it on the day of the accident, and conceded that his memory of the described events at that time was more precise than at trial.Under these circumstances, the trial court did not abuse its discretion in excluding the written statement's introduction into evidence.SeeLa.C.E. art. 613andBoutte v. Kelly, 02-2451, p. 24(La.App. 4th Cir.9/17/03), 863 So.2d 530, 548writ denied, 04-0071 (La.5/21/04), 874 So.2d 172.This assignment of error has no merit.

Diagrams of Accident Reconstruction Expert

Andrew J. McPhate was accepted by the trial court as an expert witness in mechanical engineering, vehicle dynamics, and accident reconstruction.He was called to testify on behalf of defendant and Farm Bureau.In addition to reviewing the police accident report, photographs of the involved vehicles, recorded statements of the defendant drivers, and other evidence, he personally inspected and measured the intersection and prepared scale engineering diagrams of it.

As previously noted, a major point of dispute between the parties is the issue of whether Mr. Thongsavanh had begun to move the Volkswagen for a right turn onto Airline Highway immediately before the accident.Based upon the drivers' accounts, the locations of damage on the vehicles, and the final stopped positions of the vehicles, it was Mr. McPhate's opinion that the Volkswagen was in motion and past the “stop bar” or line designating the proper stopping position for a vehicle in the turn lane.Mr. McPhate testified in detail regarding his opinions as to the relative movements and locations of the three vehicles, and his scale diagrams were exhibited to the jury during the course of his testimony to illustrate and elucidate those opinions.We have reviewed the diagrams at issue in light of his trial testimony, and conclude that the trial court did not abuse its discretion in refusing to allow their introduction into evidence.And even if the trial court could be said to have committed any error in refusing to admit the diagrams into evidence, such error was harmless...