Summary
In Smith v. Direct General Insurance Company of Louisiana, 12-1018 (La.App. 1 Cir. 4/29/13), 2013 WL 1799990 (unpublished opinion), a driver who, after having stopped at a stop sign, proceeded into an intersection and attempted to turn left, was involved in an intersectional collision with an oncoming driver who had come from the opposite side of the intersection and was attempting to proceed straight across.
Summary of this case from Pete v. BarronOpinion
2012 CA 1018
04-29-2013
ALLISON SMITH AND JEFFREY MICHELLI v. DIRECT GENERAL INSURANCE COMPANY OF LOUISIANA AND DEREK HAYES
John B. Lambremont, Sr. Baton Rouge, LA Attorney for Plaintiff-Appellee Jeffrey Michelli Kimberly R. Louper Matthew W. Bailey Walsh & Bailey, L.L.C. Baton Rouge, LA Attorneys for Defendant-Appellant Direct General Insurance Company of Louisiana
NOT DESIGNATED FOR PUBLICATION
On Appeal from the 19th Judicial District Court
Parish of East Baton Rouge, Louisiana
Docket No. 563,768, Section 27
Honorable Todd Hernandez, Judge Presiding
John B. Lambremont, Sr.
Baton Rouge, LA
Attorney for
Plaintiff-Appellee
Jeffrey Michelli
Kimberly R. Louper
Matthew W. Bailey
Walsh & Bailey, L.L.C.
Baton Rouge, LA
Attorneys for
Defendant-Appellant
Direct General Insurance Company
of Louisiana
BEFORE: PARRO, WELCH, AND KLINE, JJ.
Judge William F. Kline, Jr., retired, is serving as judge ad hoc by special appointment of the Louisiana Supreme Court.
PARRO , J.
In this appeal, a defendant automobile liability insurer appeals from a judgment awarding damages to a plaintiff injured in an automobile accident. The judgment is based on the trial court's assessment of 50% fault to the insurer's policyholder in causing the accident in which that plaintiff was injured. We affirm the judgment and issue this opinion in accordance with Uniform Rules of Louisiana Courts of Appeal, Rule 2-16.2(A)(8).
The following facts are taken from the evidence introduced by the parties at the trial. On the afternoon of February 6, 2007, a two-car accident occurred in the intersection of Florida Boulevard and Windsor Drive, in Baton Rouge, Louisiana. Florida Boulevard is an east-west, four-lane thoroughfare divided by a median and is bounded by service roads to the north and south. Windsor Drive is a north-south, two-lane street, which is perpendicular to Florida Boulevard and dead-ends at the service road on the north side of Florida Boulevard.
At the time of the accident, the plaintiff, Jeffrey Michelli, was a passenger in a 2002 Honda Accord vehicle being driven by Allison Smith. Immediately before the accident, Ms. Smith was traveling eastbound on the service road north of Florida Boulevard, when she apparently decided to continue her eastbound route on Florida Boulevard itself, rather than on the service road, Ms. Smith turned right onto Windsor Drive from the service road, and stopped at a stop sign to wait for westbound traffic on Florida Boulevard to clear, so that she could cross the westbound lanes of traffic, and make a left-hand turn into an eastbound lane of traffic on Florida Boulevard. When traffic cleared, Ms. Smith crossed the westbound lanes of Florida Boulevard and entered a break in the median. While attempting to execute the left-hand turn, Ms. Smith struck a 1999 Chevrolet Cheyenne truck being driven northbound on Windsor Drive by Derek Hayes. Immediately before the accident, Mr. Hayes had stopped at a stop sign on the service road south of Florida Boulevard. As he proceeded from the stop sign, attempting to continue northbound across all four lanes of Florida Boulevard, the collision occurred in the left, or inside, eastbound lane of Florida Boulevard. Ms. Smith's vehicle was damaged across the front bumper and on the left front driver's side fender; Mr. Hayes' vehicle was damaged behind the driver's side door, where the cab of the truck met the bed of the truck.
Officer Brian Harrison, a Baton Rouge Police Department motorcycle officer, was dispatched to the accident scene. He took statements from both drivers and observed the location of the vehicles, which remained in their wrecked positions in the roadway. Based on the drivers' statements and the location of damage to their vehicles, Officer Harrison concluded Ms. Smith caused the accident and ticketed her for failure to yield on a left turn.
Ms. Smith and Mr. Michelli filed this personal injury suit against Mr. Hayes and his automobile liability insurer, Direct General Insurance Company of Louisiana (Direct General). Ms. Smith's claim was eventually dismissed for failure to attend her scheduled depositions. Mr. Michelli's claim ultimately proceeded to a bench trial. Although subpoenaed, Officer Harrison was not present at the trial, and the trial court denied Mr. Michelli's counsel's motion to continue the trial on this basis. The parties presented no live witnesses, but they introduced documentary evidence, and the trial court took the matter under advisement.
Before filing this suit, Mr. Michelli settled his claim against Ms. Smith and her insurer, State Farm Mutual Automobile Insurance Company (State Farm), for $10,000, reserving his right to pursue claims against State Farm for uninsured/underinsured motorist (UM/UIM) coverage and medical payments. After filing this suit, Mr. Michelli later filed a supplemental and amending petition adding State Farm as a defendant in its capacity as Ms. Smith's UM/UIM insurer. The trial court ultimately signed a judgment dismissing Mr. Michelli's claim against State Farm.
Mr. Michelli was not present at the trial, and Mr. Hayes passed away before the trial was held.
The evidence submitted by the parties at trial included Officer Harrison's deposition, to which the crash report, his diagram of the accident scene, and Ms. Smith's written statement were attached as exhibits; photographs of the two vehicles taken at an unknown time after having been removed from the accident scene; Mr. Michelli's medical records; pertinent insurance policies; a receipt and release agreement; and documents verifying Mr. Hayes' death. All exhibits were introduced into the record without objection. To the extent any of the evidence was hearsay, a failure to object to hearsay evidence when admitted at trial constitutes a waiver of the right to object to its admissibility, and such evidence may be considered and given probative effect. See Walley v. Vargas, 12-0022 (La. App. 1st Cir. 9/21/12), 104 So 3d 93 104.
Later, after considering the pleadings, evidence, and argument of counsel, the trial court issued written reasons for judgment stating: (1) Ms. Smith was 50% at fault for failing "to see and observe [what] she obviously could and should have seen as a prudent and careful driver[;]" and (2) Mr. Hayes was 50% at fault for "[entering] the intersection when it was apparently not safe to do so." The trial court also determined the accident caused injuries to Mr. Michelli's shoulder, neck, and back, and that his damages totaled over $19,000. On March 28, 2012, the trial court signed a judgment in favor of Mr. Michelli and against Direct General for $9,534.16, representing 50% of Mr. Michelli's damages. Direct General appeals from the judgment, contending the trial court erred in failing to assess 100% of the fault to Ms. Smith.
Under applicable Louisiana traffic laws, Mr. Hayes and Ms. Smith each had a statutory duty to fulfill in this case. Mr. Hayes was proceeding from a stopped position at a stop sign, and Ms. Smith was a left-turning driver at an intersection. Pursuant to LSA-R.S. 32:123(B), after having stopped, a driver proceeding from a stop sign "shall yield the right-of-way to all vehicles which have entered the intersection from another highway or which are approaching so closely on said highway as to constitute an immediate hazard." Further, pursuant to LSA-R.S. 32:122, "[t]he driver of a vehicle within an intersection intending to turn to the left shall yield the right of way to all vehicles approaching from the opposite direction which are within the intersection or so close thereto as to constitute an immediate hazard." These duties give a frame of reference within which to analyze the trial court's allocation of fault.
Before the amendment of LSA-R.S. 32:123(B) by 2012 La. Acts, No. 811, §9, "right-of-way" read "right of way."
As with other factual determinations, the fact finder is vested with much discretion in its allocation of fault. Therefore, an appellate court should only disturb the fact finder's allocation of fault when it is clearly wrong or manifestly erroneous. See Hebert v. Rapides Parish Police Jury, 06-2001, 06-2164 (La. 4/11/07), 974 So.2d 635, 654-56 (on rehearing). The allocation of fault is not an exact science or the search for one precise ratio, but rather an acceptable range, and any allocation by the fact finder within that range cannot be clearly wrong. Foley v. Entergy Louisiana. Inc., 06-0983 (La. 11/29/06), 946 So.2d 144, 166; Smegal v. Gettys, 10-0648 (La. App. 1st Cir. 10/29/10), 48 So.3d 431, 439. In other words, where two or more permissible views of the evidence exist, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. See Walley v. Vargas, 12-0022 (La. App. 1st Cir. 9/21/12), 104 So.3d 93, 112; Wainwright v. Leary, 623 So.2d 233, 237 (La. App. 2nd Cir.), writ denied, 629 So.2d 1127 (La. 1993).
Having reviewed the entire record, we find no manifest error in the trial court's determination that Ms. Smith and Mr. Hayes were equally at fault in causing the accident. Despite Officer Harrison's opinion that Ms. Smith caused the accident, the trial court, as the trier of fact, was free to accept, in whole or in part, the testimony of any witness. See Walley, 104 So.3d at 112. In fact, when deposed, Officer Harrison admitted that he had no information as to which driver left his/her stop sign first, their respective speeds when crossing Florida Boulevard, or whether there was any oncoming traffic from either direction on Florida Boulevard before the impact. After reviewing all of the evidence, the trial court could have reasonably concluded that Ms. Smith's statement that Mr. Hayes "pulled out in front of" her after she began her left-hand turn, a statement given immediately after the accident, was credible proof that Mr. Hayes entered the intersection "when it was apparently not safe to do so." See LSA-R.S. 32:123(B). After reading Officer Harrison's deposition and Ms. Smith's written statement and reviewing the crash report, photographs of the damaged vehicles, and other documentary evidence submitted at trial, we conclude that the trial court's allocation of fault is based on a permissible view of the evidence, falls within an acceptable range, and is not clearly wrong.
A police officer who responds to an automobile accident is qualified to give an opinion as to who caused the accident based on his police report, where his opinion is rationally based on his perceptions of the accident scene and the parties' accounts of what occurred, and his opinion is helpful to the determination of a fact at issue. See Short v. Terminix Pest Control, Inc., 11-2293 (La. App. 1st Cir. 9/21/12), 104 So.3d 119, 121-22; also see LSA-C.E. art. 701.
In her statement, handwritten and given to Officer Harrison at the accident scene, Ms. Smith described the accident as follows:
Myself and my passenger, Jeff Michelli, had pulled on to Florida Blvd[.] when traffic was clear, where we crossed the [w]est bound lanes. I observed traffic to be dear from the east bound on Florida and I pulled across and entered the east bound lanes of travel when a white and blue Chevy truck pulled out in front of me from the opposite side of Florida, where our vehicles made initial contact.
Accordingly, we affirm the trial court's March 28, 2012 judgment, assess all costs of this appeal to Direct General Insurance Company of Louisiana, and issue this opinion in accordance with Uniform Rules of Louisiana Courts of Appeal, Rule 2-16.2(A)(8).
AFFIRMED.