Walley v. Vargas

• Decision Date: 21 September 2012
• Docket Number: No. 2012 CA 0022.,2012 CA 0022.
• Citation: 104 So.3d 93
• Parties: Daniel and Alisa WALLEY v. Regina M. VARGAS and American Family Mutual Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

104 So.3d 93

Daniel and Alisa WALLEY

v.Regina M. VARGAS and American Family Mutual Insurance Company.

No. 2012 CA 0022.

Court of Appeal of Louisiana, First Circuit.

Sept. 21, 2012.

Christopher D. Shows, Baton Rouge, LA, for Plaintiffs/Appellants, Daniel and Alisa Walley.

James W. Hailey, III, John Jerry Glas, Melissa M. Swabacker, James E. Courtenay, New Orleans, LA, for Defendants/Appellees, Regina Vargas and American Family Mutual Insurance Company.

Before WHIPPLE, McCLENDON, and HIGGINBOTHAM, JJ.

WHIPPLE, J.

[1 Cir. 2]In this motorcycle-vehicle collision case, plaintiffs appeal the trial court's judgment dismissing their case with prejudice.For the following reasons, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

On the evening of August 26, 2005, plaintiffs, Daniel and Alisa Walley, were involved in a motor vehicle accident when their 2006Harley Davidson motorcycle, which was being operated by Daniel and on which Alisa was a passenger, was struck by a 2001 Chevrolet truck being driven by Regina Vargas.The Walleys were traveling westbound on Rushing Road in Denham Springs, approaching the intersection of Rushing Road and Range Avenue, an intersection controlled by a traffic signal.Daniel Walley, who intended to turn left onto Range Avenue at the traffic signal, entered the left-turn lane and was then struck by Vargas as she attempted to make a left turn into the eastbound lane of travel on Rushing Road from a private driveway of a shopping center.

Thereafter, on October 11, 2005, plaintiffs filed suit for damages as a result of the accident, naming as defendants Vargas and Vargas's insurer, American Family Mutual Insurance Company(“American Mutual”).¹A bench trial was conducted in this matter on June 29 and 30, 2011.At trial, conflicting testimony was presented as to whether, in an effort to reach the left-turn lane, Daniel had crossed the double-yellow, center dividing line into the oncoming, eastbound traffic lane and passed stationary cars in the westbound lane, whether he had entered the left-turn lane in the yellow lined [1 Cir. 3]area where the left-turn lane was beginning to form, but not yet fully formed, or whether he entered the left-turn lane when it was permissible to do so.

Following trial, by judgment dated October 6, 2011, the trial court, finding that Daniel Walley was the sole cause of the accident, rendered judgment in favor of Vargas and American Mutual.Additionally, the judgment ordered that pursuant to defendants' motion for directed verdict, defendants were to receive a $10,000.00 credit for any damages sustained by plaintiffDaniel Walley.

From this judgment, plaintiffs appeal, contending that the trial court erred in:

(1) Ruling that the investigating officer was not unavailable to testify under LSA–C.E. art. 804(A)(3) and therefore that his deposition testimony could not be introduced into evidence under LSA–C.E. art. 804(B)(1);

(2) ruling that the investigating officer could not have his memory refreshed or be impeached by his deposition after the trial court ruled that the witness was not unavailable under LSA–C.E. art. 804(A)(3);

(3) granting defendants' oral motion for directed verdict on the issue of “No Pay/No Play” pursuant to LSA–R.S. 32:866;

(4) allowing defendant Vargas to elicit speculative testimony, contrary to LSA–C.E. art. 701, as to where plaintiffs' motorcycle was prior to impact, where defendant Vargas testified that she did not know where the motorcycle was prior to impact and where all speculation/opinion testimony was ruled to be excluded in plaintiffs' motion in limine; (5) allowing hearsay statements by a witness to the accident to be introduced at trial despite her absence when she was available as a witness;

[1 Cir. 4](6) failing to place the burden on defendant Vargas to disprove her liability when she was making a left turn out of a private drive that resulted in the accident, pursuant to LSA–R.S. 32:122andLSA–R.S. 32:124; and

(7) finding defendant Vargas without fault when her testimony included multiple inconsistencies, after testifying she was looking in the opposite direction of oncoming traffic and failing to carry her statutory burden of proof.

DISCUSSION

Introduction and/or Use of the Investigating Officer's Deposition(Assignments of ErrorNos. 1 & 2)

In their first assignment of error, plaintiffs contend that the trial court erred in ruling that Officer Matt Martello, the investigating officer, was not “unavailable as a witness” pursuant to LSA–C.E. art. 804(A)(3) due to his memory loss and, thus, in refusing to allow them to introduce Officer Martello's deposition testimony at trial pursuant to LSA–C.E. art. 804(B)(1).Alternatively, in their second assignment of error, plaintiffs argue that, given the trial court's finding that Officer Martello was not “unavailable” due to memory loss, the trial court erred in refusing to allow plaintiffs to use his deposition testimony to either refresh his memory during his trial testimony or for impeachment purposes.

In the years after investigating this accident and completing an accident report, Martello suffered two serious medical situations.Specifically, Martello suffered from gunshot wounds on the job in September of 2006, and, thereafter in April 2009, he suffered from a stroke, which he acknowledged at trial affected his ability to recall past events.Subsequent to his gunshot wound, but prior to his stroke, Martello had given [1 Cir. 5]a deposition in this matter, the attempted use of which is the subject of these assignments of error.

With regard to his memory deficits resulting from his stroke, when asked at trial if he remembered working this accident, Martello responded that he remembered the motorcycle, but that was “about all.”Moreover, although Martello testified that he was familiar with the scene where this accident occurred, during questioning of Martello by plaintiffs' counsel, Martello was clearly confused as to the events of this accident and unable to recall the circumstances of his investigation.He also had no recollection of interviewing either driver involved in the accident.Furthermore, when plaintiffs' counsel questioned Martello as to his previous testimony under oath, Martello responded that he did not remember.Thus, plaintiffs' counsel then sought to introduce Martello's previous deposition into evidence on the basis that Martello's lack of memory rendered him unavailable as a witness.

Defense counsel objected to the introduction of Martello's deposition on the bases that Martello's deposition was a discovery deposition rather than an “evidence deposition” and that the “best evidence” was Martello's accident report, which the parties had jointly offered as an exhibit.Defense counsel further argued that Martello did “recall the motorcycle” and was “here live,” although acknowledging that “his memory here is not good.”²The trial court sustained the defense's objection to the introduction of Martello's previous deposition.Plaintiffs' counsel then proffered the deposition.

[1 Cir. 6]Thereafter, when Martello continued to exhibit difficulty with recalling his prior testimony and opinions, plaintiffs' counsel sought to use Martello's deposition to refresh his memory on this issue.However, defense counsel objected on the basis that Martello did not recall giving his deposition testimony, and the trial court sustained the objection.When plaintiffs' counsel then asked the court if he would be allowed to use the deposition testimony to impeach Martello, the court responded, “If he doesn't recall giving it, how can you impeach him?”³

Plaintiffs assert that because of these erroneous rulings, they were improperly put in a predicament in that they could not introduce Martello's earlier sworn testimony because the trial court refused to find Martello to be “unavailable” due to memory deficits, but, nonetheless, they also were not allowed, due to Martello's inability to recall giving his deposition, to refresh his memory or impeach him with excerpts from that prior testimony if Martello said anything contradictory to that prior testimony at trial.On review, we agree.

Louisiana Code of Civil Procedure article 1450 establishes the parameters for the use of deposition testimony at trial ⁴ and provides in pertinent part as follows:

[1 Cir. 7]A.At the trial ..., any part or all of a deposition, so far as admissible under the Louisiana Code of Evidence applied as though the witnesses were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:

(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.

* * *

(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:

(a) That the witness is unavailable....

Article 804(A) of the Louisiana Code of Evidence defines unavailability, in pertinent part, as follows:

Except as otherwise provided by this Code, a declarant is “unavailable as a witness” when the declarant cannot or will not appear in court and testify to the substance of his statement made outside of court.This includes situations in which the declarant:

* * * (3) Testifies to a lack of memory of the subject matter of his statement[.]

The trial court has much discretion in determining whether to allow the use of deposition testimony at trial, and its decision will not be disturbed upon review in the absence of an abuse of that discretion.State, Department of Social Services Support Enforcement Services in the Interest of Bordelon v. Guichard, 94–1795(La.App. 1st Cir.5/5/95), 655 So.2d 1371, 1378,writ denied,95–1405 (La.9/15/95), 660 So.2d 454.

As detailed above, because of his medical condition at the time of trial, Martello recalled only the...