Tunstall v. Stierwald
| Decision Date | 26 February 2002 |
| Docket Number | No. 2001-C-1765.,2001-C-1765. |
| Citation | 809 So.2d 916 |
| Parties | Terrance TUNSTALL v. Elvin STIERWALD and Travelers Insurance Company. |
| Court | Louisiana Supreme Court |
Angela M. Heath, Marc G. Shachat, Campbell E. Wallace, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, Counsel for Applicant.
Robert G. Harvey, Sr., Mark P. Glago, Maria Del Carmen Calvo Broce, Harvey, Jacobson & Glago, New Orleans, Counsel for Respondent.
In this personal injury suit, we are called upon to review the ruling of the court of appeal, affirming the trial court's amended judgment. After a review of the record and the applicable law, we find the court of appeal erred in affirming the trial court's judgment. Accordingly, for reasons set forth herein, we reverse the judgment of the court of appeal and reform the trial court's judgment.
The underlying facts are undisputed. On February 11, 1996, plaintiff Terrance Tunstall, was driving a taxi cab on Toulouse Street at the intersection of Toulouse Street and North Rampart when his vehicle was struck by a Chevrolet Suburban, driven by defendant, Elvin Stierwald.
As a result of the accident, on August 29, 1996, plaintiff filed suit against Elvin Stierwald and Travelers Insurance Company, alleging that Travelers provided liability coverage for the vehicle operated by Stierwald. Specifically, paragraph five of plaintiffs petition states:
At all times relevant Travelers Insurance Company provided liability coverage for the vehicle operated by Elvin Stierwald on the date of this accident, for the types of damages sought herein, and Travelers Insurance Company is made a party defendant. [emphasis in original]
Thereafter, on October 31, 1996, Phoenix Insurance Company filed an answer to plaintiffs petition, stating:
The parties then conducted discovery, in which dozens of deposition notices and pleadings were filed into the record. It is worthy to note that Travelers was never listed as a party defendant on any of the pleadings, rather all notices listed counsel for "Phoenix Insurance Company."
On February 13, 1998, plaintiff filed a "Motion to Set for Trial on the Merits." The motion, which required the mover to list the name of each party to the lawsuit, listed as defendants only Elvin Stierwald and the Phoenix Insurance Company.1 Ultimately, the matter proceeded to trial on August 19th and September 20, 1999. The judgment, rendered on November 5, 1999, listed the following parties as present:
The trial court found in favor of plaintiff, awarding him $1,006,674.00 in damages. In the judgment, the trial court named as defendants, "Elvin Stierwald and Phoenix/Travelers Insurance Company." In the court's reasons for judgment, the trial judge focused primarily on the gravity of damages suffered by plaintiff as well as his loss of earnings. The court also rejected defendant's theory that plaintiff's injuries were called primarily by the second accident rather than by this accident.2 The reasons for judgment never stated that Phoenix acted in bad faith nor did it indicate that there was a question as to the identity of Mr. Stierwald's insurer.
On November 15, 1999, defendants filed a motion for new trial, specifically contending (1) the judgment was contrary to law; (2) the judgment was excessive; and (3) the judgment was in excess of the policy limits. On December 3, 1999, the trial court denied defendants' motion for new trial.3 That same day, an amended judgment was issued, stating:
Based on the amended judgment, specifically naming Travelers as a party, both Phoenix and Travelers appealed the decision.
The court of appeal affirmed the trial court's judgment. Tunstall v. Stierwald, et al., 00-0823 (La.App. 4th Cir.5/16/01), 796 So.2d 937, (Not Designated for Publication). The court found that the trial court did not err in casting both Travelers and Phoenix in judgment. In reaching this conclusion, the court determined that the trial court found ambiguities in the Phoenix and Travelers policies, policy limits and terms regarding prejudgment interest. The court further pointed out that "considerable confusion" existed concerning the connection between the Travelers policy booklet and the Phoenix Declarations Page.
We granted Travelers and Phoenix's writ to review the correctness of the lower courts' judgments. Tunstall v. Stierwald, et al., 01-1765 (La.10/5/01), 798 So.2d 953.
It is well recognized that it is the duty of the appellate court to "do more than just simply review the record for some evidence which supports or controverts the trial court's findings; it must instead review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous." Lasyone v. Kansas City Southern R.R., 00-2628 (La.4/3/01), 786 So.2d 682. The case before the court raises several issues, many of which did not arise until after the trial on the merits. Thus, we must consider entire record and the applicable law to determine the correctness of the lower courts' rulings.
The trial judge amended the original judgment, noting that he was only making a correction to a "typographical" error in the judgment. La.Code Civ. P. art.1951 allows amendments to a judgment only when the amendment is made to correct calculation errors or to alter phraseology. Thus, a judgment may be amended by the court only when the amendment takes nothing from or adds nothing to the original judgment. Villaume v. Villaume, 363 So.2d 448 (La.1978); Baptiste v. Southall, 157 La. 333, 102 So. 420 (1924). Accordingly, we must determine whether the changes in the amended judgment affected the original judgment.
The original judgment, rendered on November 5, 1999, was against Elvin Stierwald and Phoenix/Travelers Insurance Company. Although the judgment names Phoenix/Travelers as the party cast in judgment, Phoenix/Travelers is, in fact, a non-existent legal entity. The record reflects that the only defendant answering plaintiff's petition as the insurer for Elvin Stierwald was Phoenix Insurance Company. Based on the record, the only defendant/insurer capable of being cast in judgment in this matter was Phoenix. Moreover, once Phoenix answered, pointing out that Travelers was improperly named, plaintiff was on notice as to the true identity of Stierwald's insurer, i.e. Phoenix. Plaintiff never sought a default judgment against Travelers and did not object to Phoenix's participation as the insurer of Stierwald. Although the court of appeal found the trial court did not err in finding both Travelers and Phoenix liable to plaintiff, we see no authority in the record which would support finding Travelers liable to plaintiff for two reasons. First, Travelers never answered plaintiffs petition. Second, Phoenix was the only insurer answering plaintiff suit and accepting liability for Stierwald.4 Thus, we conclude the only insurer of Elvin Stierwald at the time of judgment in this matter was Phoenix.
Although the record does not contain a motion for new trial to correct the name of the insurance company, on December 3, 1999, the district court rendered an amended judgment, in which Phoenix/Travelers was replaced by Phoenix Insurance Company and Travelers Insurance Company. Changing the name of a party cast in the judgment is a change of substance and not of phraseology. Davenport v. Amax Nickel, Inc., 569 So.2d 23 (La.App. 4th Cir.1990). The trial judge in this matter added the name of a party who never answered plaintiff's petition. Furthermore, the record is void of any indication that a default judgment was taken against Travelers. Although the error may have appeared obvious to the parties and the court, the change should not have been accomplished by the court's own motion, but should have been done contradictorily. Mitchell v. Zeringue, 497 So.2d 19 (La.App. 5 Cir.1986); Levy v. Stelly, 230 So.2d 774 (La.App. 4th Cir.1970). While the usual remedy of the appellate court in such a case is to vacate the amended judgment and reinstate the original judgment, the instant case will not be resolved by such a remedy. See Schexnayder v. Schexnayder, 503 So.2d 104 (La.App. 5 Cir.1987); Levy, supra. To reinstate the original judgment would be to allow a judgment to stand that holds a non-entity, i.e. Travelers/Phoenix in judgment. La. Code Civ.P. art. 2164 allows this court to "render any judgment which is just, legal and proper upon the record on appeal." Howard v. Allstate Ins. Co., 520 So.2d 715, (La.1988). Phoenix answered plaintiffs lawsuit, not Travelers. Accordingly, based on the record on appeal, we deem it just, legal and proper not only to vacate the amended judgment and reinstate the original judgment, but also to revise the original judgment to delete Travelers Insurance Company, adding in its place the proper party defendant, Phoenix Insurance Company.
Phoenix contends that only one policy was introduced and that the limits of that policy were clearly established at $50,000. Plaintiff disagrees, arguing that defendan...
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