Touchard v. Williams

• Decision Date: 06 October 1992
• Docket Number: No. 91-515,91-515
• Parties: Mary TOUCHARD, Plaintiff-Appellant, v. Brenda WILLIAMS, et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 927

606 So.2d 927

Mary TOUCHARD, Plaintiff-Appellant, v. Brenda WILLIAMS, et al., Defendants-Appellees.

No. 91-515.

Court of Appeal of Louisiana,

Third Circuit.

Oct. 6, 1992.

Writ Granted Dec. 21, 1992.

Pucheu & Pucheu, John N. Pucheu, Eunice, for plaintiff/appellant in No. 91-515.

Sam N. Gregorio, Shreveport, for plaintiff/appellant in No. 91-516.

Roy & Hattan, L. Lane Roy, Lafayette, for Martha Causey and Allstate Ins. Co.

Voorhies & Labbe, Robert A. Lecky, Lafayette, for Steven L. Lege and Texas Farmers Ins. Co.

Dauzat, Falgoust, Caviness, Bienvenu & Stipe, Steven J. Bienvenu, Opelousas, for Brenda Williams and State Farm Ins. Co.

Cooper, Ortego & Woodruff, John E. Ortego, Abbeville, for State Farm Ins. Co.

Before STOKER, KNOLL and MARCANTEL, ^* JJ.

BERNARD N. MARCANTEL, Judge Pro Tem.

The issues on appeal are whether the jury erred in its allocation of fault; whether the lump sum award by the jury is too low; and, whether the trial court erred in its interpretation and application of La.C.C. art. 2324, as amended effective September 1, 1987.

This suit for damages arises out of a multi-car pile-up on Interstate 10 on September 17, 1987. Plaintiff, Mary Touchard, filed suit against Brenda Williams, Williams' insurer, State Farm Mutual Insurance Company, Steven L. Lege, his insurer, Texas Farmers Insurance Company (hereinafter defendants), and Vernon Causey d/b/a Cafi & Company.

Plaintiff's lawsuit was consolidated for trial with the suit of James H. Minter who was also injured in the accident. The consolidated cases were tried on April 23, 1990, through April 30, 1990. The jury found that plaintiff's injuries were caused by the joint negligence of Brenda Williams, Martha Causey and Steven Lege, and awarded her a lump sum of $100,000.00. The jury also ruled in favor of James H. Minter, awarding him the sum of $250,000.00.

Judgment was signed on September 7, 1990, and plaintiff timely appealed. State Farm Mutual Automobile Insurance Company filed an answer to the appeal in its position as uninsured/underinsured motorist insurer of plaintiff.

Plaintiff in the consolidated case, James H. Minter, appeals on the issue of judicial interest. ¹

FACTS

This action arises out of two separate but related collisions that occurred in the eastbound lane of Interstate 10 near the Duson-Mire exit on September 17, 1987. Four vehicles were involved. The vehicles and their respective drivers were: (1) a 1976 Oldsmobile Cutlass driven by Brenda Williams; (2) a 1976 Pontiac Grand Prix driven by James H. Minter; (3) a 1985 Chrysler Fifth Avenue driven by Martha Causey; and (4) a 1986 Buick Skylark driven by Steven L. Lege. Plaintiff, Mary Touchard, was a passenger in the Williams vehicle and Daviona Lege was a passenger in the Lege vehicle.

None of the drivers or passengers were able to witness the entire sequence of events but the results were that one collision occurred between the Cutlass driven by Williams and the Buick driven by Lege. The other collision was between the Pontiac driven by Minter and the Chrysler driven by Causey.

The drivers all agreed to the fact that it was raining at the time of the accident. Also, there seems to be no serious dispute over the fact that Williams, who was driving the lead car, lost control of the Cutlass, spun around on the highway, and came to rest facing North with its back half partially blocking the left eastbound lane. The Cutlass stalled and Williams was unable to start the car and move it from the path of any cars approaching in her lane.

Minter testified that he saw the Cutlass in his lane of travel when he was a considerable distance from it and was aware that he had time to slow down and stop without hitting it. But, Minter said, before he was able to completely stop, he saw in his rear view mirror the Chrysler, being driven by Causey, approaching him and not stopping. As the Chrysler struck Minter's car, he was able to turn his wheels to the left so that his car went into the median instead of hitting the Cutlass.

Causey admitted to striking Minter from behind but stated that she was the last car involved in the accident. She testified that she was traveling down the interstate, driving between 50 and 55 miles per hour, when she suddenly saw the brake lights of the Minter vehicle. She reacted by slamming on her brakes but, because of her speed and the wet pavement, she was unable to avoid crashing into Minter's Pontiac.

Steven Lege testified that he was traveling down the interstate in the left lane and he saw the car in front of him, the Chrysler, swerve to the right. At that point, he saw another car in front of him, the vehicle occupied by Williams and Touchard, and he applied his brakes but slid and struck it.

James L. Simon, a Senior Trooper with the Louisiana State Police, testified as to the positioning of the vehicles. He stated that the Cutlass was first, the Pontiac second, the Chrysler third, and the Buick fourth. Martha Causey disagreed, stating that the Buick was second, the Pontiac third, and the Chrysler was fourth.

Plaintiff brought this action seeking damages for personal injuries sustained in the accident. She presented medical testimony regarding her injuries, the most severe being a damaged disc at L5-S1 level, which began pinching on a nerve root and required surgery. Other injuries included a ligamentous injury to the cervical spine, a bad contusion of her left shoulder and clavicle joint, muscle spasms, bruises over her entire torso, a concussion, and bruises on her forehead and temple.

Also, plaintiff presented evidence of lost income, as a result of her injuries and treatment, in the amount of $17,530.44 from her primary job as manager of a housing development and $2,000.00 a year from a second job as a cashier, which she can no longer perform. Medical bills incurred from the time of the accident up until trial were presented in the amount of $53,829.94.

Contradictory testimony was presented regarding plaintiff's long history of back problems which included an operation in 1979 for a lumbar spine problem at L4-5 level and a reinjury of her lower back in 1987.

After all the evidence was presented and the jury was instructed by the court, the jury returned a verdict holding Brenda Williams 63% at fault, Martha Causey 30% at fault and Steven Lege 7% at fault. Plaintiff's total award was in the amount of $100,000.00.

Plaintiff now appeals the percentages of fault assigned to the different defendants, the amount of the award, and the interpretation of La.C.C. art. 2324 B.

LAW

Allocation of Fault

Plaintiff contends that the jury erred when it assigned fault in the amount of 63% to Brenda Williams, in light of the evidence presented at trial, and that the jury should have assessed defendants, Mary Causey and Steven Lege, with greater percentages of fault.

It is well settled that an appellate court may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong," and, where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell, supra.

After a thorough review of the record, we do not find that the jury's verdict in its assignment of fault was manifestly erroneous. Therefore, this assignment of error is without merit.

Damage Award

Plaintiff contends that, in light of the evidence presented, the jury award of $100,000.00 was too low and should be increased to $130,000.00.

It is well settled that an appellate court may not disturb an award made by a trial court absent an abuse of discretion by the trier of fact. Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Matthias v. Brown, 551 So.2d 821 (La.App. 3 Cir.1989), writ denied 556 So.2d 1263 (La.1990). Since we find no abuse of discretion by the trier of fact, we affirm the jury award.

Interpretation and Application of La.C.C. Art. 2324 B

La.C.C. art. 2324 reads in pertinent part:

"B. If liability is not solidary pursuant to Paragraph A, or as otherwise provided by law, then liability for damages caused by two or more persons shall be solidary only to the extent necessary for the person suffering injury, death, or loss to recover fifty percent of his recoverable damages. ... Under the provisions of this Article, all parties shall enjoy their respective rights of indemnity and contribution. Except as described in Paragraph A of this Article, or as otherwise provided by law, and hereinabove, the liability for damages caused by two or more persons shall be a joint, divisible obligation, and a joint tortfeasor shall not be solidarily liable with any other person for damages attributable to the fault of such other person, including the person suffering injury, death, or loss, regardless of such other person's insolvency, ability to pay, degree of fault, or immunity by statute or otherwise."

Because there is a lack of jurisprudence interpreting and applying art. 2324 B, we have looked to writings of legal scholars on the subject. One such scholar is David W. Robertson, A.W. Walker Centennial Chair in Law, University of Texas, whose article, ...