Opinion
NUMBER 2018 CA 0049
07-03-2018
TRACY BRUMFIELD v. JACOB CURRIER, ET AL.
Jennifer O. Robinson Lafayette, LA Counsel for Plaintiff/Appellant, Tracy Brumfield Willie G. Johnson, Jr. Derek E. Elsey Baton Rouge, LA John A. Keller Madisonville, LA Counsel for Defendant/Appellee, Allstate Insurance Company
NOT DESIGNATED FOR PUBLICATION Appealed from the Twenty-First Judicial District Court In and for the Parish of Tangipahoa State of Louisiana
Docket Number 2014-0001928
Honorable Charlotte H. Foster, Judge Presiding
Jennifer O. Robinson
Lafayette, LA Counsel for Plaintiff/Appellant,
Tracy Brumfield Willie G. Johnson, Jr.
Derek E. Elsey
Baton Rouge, LA John A. Keller
Madisonville, LA Counsel for Defendant/Appellee,
Allstate Insurance Company BEFORE: WHIPPLE, C.J., MCDONALD, AND CHUTZ, JJ. WHIPPLE, C.J.
This matter is before us on appeal by plaintiff, Tracy Brumfield, from a judgment of the trial court granting a motion for involuntary dismissal in favor of defendant, Allstate Insurance Company. For the reasons that follow, the judgment of the trial court is affirmed.
FACTS AND PROCEDURAL HISTORY
On July 12, 2013, Mrs. Brumfield was traveling northbound on U.S. Highway 51 near Independence, Louisiana, operating a 2013 Chevrolet Silverado pickup truck when, as she was slowing to a stop, the rear bumper of her vehicle was struck by the front bumper of a 2006 Ford 500 sedan driven by Jacob Currier. The impact from the Currier vehicle caused the right front door of Mrs. Brumfield's vehicle to collide with the rear left bumper of the vehicle in front of her, despite her attempt to avoid hitting the vehicle in front of her by steering her vehicle to the left.
To the extent that Mrs. Brumfield's testimony differs from the narrative contained in the accident report with regard to whether she was at a complete stop or was slowing to a stop at the time of impact, we note that any such discrepancy was not assigned as error, as liability was not challenged herein.
Mrs. Brumfield filed a petition for damages allegedly suffered as a result of this accident against Mr. Currier and his insurer, National General Assurance Company ("NGAC"), as well as her own UM carrier, Allstate Insurance Company ("Allstate"). As to Allstate, Mrs. Brumfield alleged that it was liable for all relief afforded her pursuant to LSA-R.S. 22:1892 and LSA-R.S. 22:1973, including penalties, attorney fees, and costs, "unless sufficient tenders are made" for damages that exceed Mr. Currier's underlying liability coverage. Mrs. Brumfield ultimately resolved her claims against Mr. Currier and NGAC, and the matter proceeded to trial on June 27, 2017, on her remaining UM claims against Allstate for benefits, penalties, and attorney fees. Allstate stipulated to liability at trial.
Although Allstate initially requested a trial by jury, prior to trial Mrs. Brumfield stipulated that the value of her remaining claims against Allstate did not exceed $50,000.00, and the matter thereafter proceeded to a bench trial. See LSA-C.C.P. art. 1732.
Following the close of Mrs. Brumfield's case-in-chief, Allstate moved for an involuntary dismissal of Mrs. Brumfield's claims for penalties and attorney fees, contending that: (1) Mrs. Brumfield failed to prove that the value of her claim exceeded the underlying limits of Mr. Curriers liability policy; and (2) Allstate was arbitrary and capricious in failing to make a timely UM tender, so as to entitle her to recover penalties and attorney fees. The trial court took the motion under advisement, allowing the parties thirty days to submit briefs on the issue.
On August 8, 2017, the trial court issued written reasons for judgment finding that Mrs. Brumfield did not meet her burden of proving that she sustained damages (special and general) in excess of $50,000.00, which were the underlying limits of Mr. Currier's liability policy. The trial court further determined that Allstate was not arbitrary and capricious in refusing to make a UM tender. In conformity therewith, a written judgment granting Allstate's motion for involuntary dismissal of Mrs. Brumfield's claims for penalties and attorney fees and dismissing Mrs. Brumfield's claims against Allstate with prejudice was signed on October 18, 2017.
Mrs. Brumfield now appeals, contending that the trial court erred in:
(1) granting Allstate's motion for involuntary dismissal;
(2) finding that Allstate's failure to make a reasonable tender was not arbitrary and capricious pursuant to LSA-R.S. 22:1892 and LSA-R.S. 22:1973;
(3) its ruling regarding liability, causation, and damages;
(4) allowing the amount of settlement and the underlying policy limits into evidence before rendering a ruling herein; and
(5) denying Mrs. Brumfield's request to admit the certified medical records of Healing Health Center into evidence.
DISCUSSION
Evidentiary Challenges
At the outset, we note that in her fourth and fifth assignments of error, Mrs. Brumfield contends that the trial court made erroneous evidentiary rulings. If a trial court commits evidentiary error that interdicts its fact-finding process, this court must conduct a de novo review. Thus, any alleged evidentiary errors must be addressed first on appeal, inasmuch as a finding of error may affect the applicable standard of review. Penton v. City of Hammond Police Department, 2007-2352 (La. App. 1st Cir. 5/2/08), 991 So. 2d 91, 95.
Assignment of Error Number Four
In this assignment of error, Mrs. Brumfield argues that she was prejudiced by the trial court's admission of the amount of her settlement of her liability claims against Mr. Currier and NGAC, as well as the underlying liability policy limits, into evidence in violation of LSA-C.E. arts. 408 and 411. Mrs. Brumfield contends that the trial court prejudiced itself by the admission of the settlement amount and underlying policy limits prior to the court ruling on the value of Mrs. Brumfield's claim.
Louisiana Code of Evidence article 408, entitled, "Compromise and offers to compromise," provides in Section A that:
In a civil case, evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, anything of value in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This Article does not require the exclusion of any evidence otherwise admissible merely because it is presented in the course of compromise negotiations. This Article also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
With reference to liability insurance, LSA-C.E. art. 411 provides, as follows:
Although a policy of insurance may be admissible, the amount of coverage under the policy shall not be communicated to the jury unless the amount of coverage is a disputed issue which the jury will decide.
Allstate argues that, as the UM carrier, it has no exposure or liability until or unless Mrs. Brumfield proves that her damages exceed the limits of Mr. Currier's liability insurance; thus, introduction of the amount of the underlying carrier's policy limits was necessary for the trial court to determine Allstate's exposure or potential liability. Allstate further contends that the amount of the settlement was relevant and admissible to determine whether Allstate was in bad faith for failing to make a UM tender. Allstate avers that the fact that Mrs. Brumfield evaluated her claim and settled with the underlying carrier for $43,000.00, namely $7,000.00 less than the liability policy limits, supports its determination that a UM tender was not warranted under the facts presented.
At trial, Allstate sought to introduce Mr. Currier's NGAC liability policy and declaration sheet setting forth the policy limits. An objection to the introduction of the policy by Mrs. Brumfield's counsel was overruled by the trial court and the policy, accompanied with the declaration sheet, was admitted into evidence. Subsequently, during cross-examination of Mrs. Brumfield, counsel for Allstate asked her if she had settled her claim with Mr. Currier, the amount of Mr. Currier's underlying policy limits, and the amount of her settlement. Mrs. Brumfield acknowledged that she had settled her claim against Mr. Currier for $43,000.00, and confirmed that his underlying policy limits were $50,000.00. No contemporaneous objections were made to this line of questioning.
In order to preserve an evidentiary issue for appellate review, it is essential that the complaining party enter a contemporaneous objection to the evidence and state the reasons for the objection. Louisiana State Bar Association v. Carr and Associates, Inc., 2008-2114 (La. App. 1st Cir. 5/8/09), 15 So. 3d 158, 172, writ denied, 2009-1627 (La. 10/30/09), 21 So. 3d 292. The failure to make a contemporaneous objection during the trial waives the right of a party to complain on appeal that the evidence was improperly admitted at trial. Louisiana State Bar Association v. Carr and Associates, Inc., 15 So. 3d at 172.
During Mrs. Brumfield's cross-examination testimony, the following exchange occurred:
Q. Now you recently settled your claim with Mr. Currier [...], correct?
A. Yes, I guess.
Q. And you settled that claim for $43,000, right?
A. Yes.
Q. And his policy limits were $50,000?
A. Yes.
Q. Can you [tell] us, and if you don't know you can say that too, but can you tell us why you settled for $43,000 if the policy limits were fifty?
A. I wasn't there. I don't know.
Q. And that settlement that occurred very recently, correct?
A. Yes.
At this point, there was no formal objection to this line of questioning concerning the underlying policy limits or the amount of Mrs. Brumfield's settlement with Mr. Currier. Because a contemporaneous objection to disputed evidence must be entered on the trial record in order to preserve the objection for appellate review, Harris v. State ex rel. Department of Transportation and Development, 2007-1566 (La. App. 1st Cir. 11/10/08), 997 So. 2d 849, 868, writ denied, 2008-2886 (La. 2/6/09), 999 So. 2d 785, any error predicated on allowing her to be questioned concerning the underlying policy limits and settlement amount is not preserved for review on appeal. See Figeroha v. State Farm Mutual Automobile Insurance Company, 2011-1985 (La. App. 1st Cir. 5/3/12) (unpublished), writ denied, 2012-1231 (La. 9/21/12), 98 So. 3d 342.
As to Mrs. Brumfield's contention that the trial court erred in allowing the introduction of the underlying liability policy and accompanying declaration sheet, we note that even if we were to find error in the trial court's admission of same, where Mrs. Brumfield was questioned and testified, without objection, as to the amount of the underlying policy limits, we find any such error to be harmless. Under such circumstances, the evidence provided by the underlying liability policy and declaration sheet was cumulative of Mrs. Brumfield's testimony.
This assignment lacks merit.
Assignment of Error Number Five
In this assignment of error, Mrs. Brumfield contends that the trial court erred in failing to admit into evidence the certified medical records of Healing Health Center.
At some point after the accident, Mrs. Brumfield apparently began treatment at Healing Health Center. At the pretrial conference on June 26, 2017, the day before the trial commenced, counsel for Allstate indicated that Mrs. Brumfield's treatment at Healing Health Center was not disclosed until a week and a half before trial and that Allstate was not provided with any records of this treatment prior to the discovery deadlines; thus, Allstate objected "to any reference to the treatment" at trial. In response, counsel for Mrs. Brumfield indicated that he was not going to attempt to introduce these records at trial, stating, "we won't attempt to introduce certified records or bills into the record." The trial court then advised the parties that it was "not going to rule at this time" and that "[w]hen we get to that part, if you want to object, then I'll rule on it at that time."
At the commencement of trial on the next day, counsel for Mrs. Brumfield and Allstate each identified and introduced supporting evidence. At this time, counsel for Mrs. Brumfield sought to identify certain certified medical records from Healing Health Center as plaintiff's exhibit number 6, stating, "Now, those are not being admitted in our case-in-chief. We will proffer those to your honor, based upon our agreements in the preliminaries from yesterday." Counsel for Allstate responded, stating, "I don't quite understand that. If [counsel] agreed that he wasn't going to admit those into evidence, I don't know why they would be included as an exhibit even for a proffering." The trial court replied that it was "going to let him proffer them but [the court was] not going to look at them."
When the court rules against the admissibility of any evidence, it shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence. LSA-C.C.P. art. 1636(A). In all cases, the court shall state the reason for its ruling as to the inadmissibility of the evidence, which shall be reviewable on appeal. LSA-C.C.P. art. 1636(C). The purpose of requiring a proffer is to preserve excluded evidence so that the testimony or evidence is available for appellate review of a trial court's erroneous ruling. Williams v. Williams, 2006-2491 (La. App. 1st Cir. 9/14/07), 970 So. 2d 633, 640.
In the instant case, we find from our review of the record that counsel for Mrs. Brumfield did not attempt to offer the medical records into evidence, but merely sought to proffer them. Accordingly, although the trial court allowed the proffer, it was not asked to admit the medical records at issue into evidence, and therefore, never ruled on the admissibility of the medical records. Accordingly, Mrs. Brumfield's assignment of error herein, based on the trial court's denial of her request to admit the Healing Health Center records into evidence lacks merit where, according to the transcript contained in the record, there was no request to admit (and therefore no ruling by the trial court on the admissibility of) these medical records. As such, this assignment of error lacks merit or presents nothing for us to review.
Motion for Involuntary Dismissal
Louisiana Code of Civil Procedure article 1672(B) provides that in an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for an involuntary dismissal at the close of a plaintiff's case, when a plaintiff has shown no right to relief based on the facts and law. In determining whether involuntary dismissal should be granted, the appropriate standard is whether the plaintiff has presented sufficient evidence in its case-in-chief to establish a claim by a preponderance of the evidence, which means taking the evidence as a whole, the fact or cause sought to be proved is more probable than not. Jackson v. Capitol City Family Health Center, 2004-2671 (La. App. 1st Cir. 12/22/05), 928 So. 2d 129, 131. When considering a motion for involuntary' dismissal, a plaintiff is entitled to no special inferences in his favor. However, absent circumstances in the record casting suspicion on the reliability of the testimony and sound reasons for its rejection, uncontroverted evidence should be taken as true to establish a fact for which it is offered. Lakeshore Chrysler Dodge Jeep, Inc. v. Windstream Communications, Inc., 2017-0841 (La. App. 1st Cir. 12/21/17), ___ So. 3d ___, ___.
The trial court's grant of an involuntary dismissal is subject to the manifest error standard of review. Broussard v. Voorhies, 2006-2306 (La. App. 1st Cir. 9/19/07), 970 So. 2d 1038, 1041-1042, writ denied, 2007-2052 (La. 12/14/07), 970 So. 2d 535. Accordingly, in order to reverse the trial court's grant of involuntary dismissal, the reviewing court must find that there is no factual basis for the trial court's finding or that the finding is clearly wrong. Broussard v. Voorhies, 970 So. 2d at 1042. See also Stobart v. State through Department of Transportation and Development, 617 So. 2d 880, 882 (La. 1993).
Because an involuntary dismissal of an action pursuant to Article 1672(B) is based on the "facts and law," consideration of the substantive law applicable to the plaintiff's case is necessary. In an action to recover damages allegedly caused by another's negligence, the plaintiff has the burden of proving negligence on the part of the defendant by a preponderance of the evidence. Hanks v. Entergy Corporation, 2006-477 (La. 12/18/06), 944 So. 2d 564, 578. Most negligence cases are resolved by employing the duty-risk analysis, which entails five separate elements: (1) whether the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) whether the defendant's conduct failed to conform to the appropriate standard (the breach element); (3) whether the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element); (4) whether the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of liability or scope of protection element); and (5) whether the plaintiff was damaged (the damages element). Hanks v. Entergy Corporation, 944 So. 2d at 579.
Assignments of Error Numbers One, Two, and Three
In her remaining assignments of error, Mrs. Brumfield contends that the trial court erred: (1) in its rulings regarding liability, causation, and damages; (2) in granting Allstate's motion for involuntary dismissal; and (3) in finding that Allstate's failure to make a reasonable tender was not arbitrary and capricious pursuant to LSA-R.S. 22:1892 and LSA-R.S. 22:1973.
At the outset, we note that to the extent that Mrs. Brumfield challenges the trial court's ruling on liability, the record reflects that Allstate stipulated that Mr. Currier was at fault for the accident herein. Thus, given the parties' agreement, the trial court was not asked to determine liability.
Moreover, with reference to Mrs. Brumfield's contention that the trial court erred in its ruling on causation, we note that in its reasons for judgment, the trial court found as follows:
[P]laintiff did not meet her burden of proof that damages (special and general) she sustained in the accident giving rise to this lawsuit exceed $50,000.00, the underlying limits of [Mr. Currier's] insurance policy.
Accordingly, the trial court expressly found that the accident caused some injuries to Mrs. Brumfield, but concluded that the value of those damages did not exceed the threshold $50,000.00 amount necessary to expose Allstate, as the UM carrier, to liability for an award of damages. After carefully reviewing the record herein, we find no manifest error in the trial court's factual findings or in its conclusion that Mrs. Brumfield failed to meet her burden of proving that her damages resulting from the instant accident exceeded $50,000.00.
Mrs. Brumfield claimed that she sustained injuries to her back and right leg as a result of the accident herein. The record establishes, however, that before the instant accident, Mrs. Brumfield had been treated at Lallie Kemp Regional Medical Center ("Lallie Kemp") for back pain since 1993. Mrs. Brumfield testified that she was involved in several prior automobile accidents, one of which necessitating that she undergo a circumferential fusion vertebrectomy at T-10 and a T8-12 fusion. Mrs. Brumfield conceded that she continued to have muscle spasms in her back after the surgery, she sought treatment for same, and testified that her doctor told her that her back would never be 100% again. She testified that she was unable to work due to her back injuries and further applied for social security disability benefits, which were denied. The record further shows that Mrs. Brumfield presented at Lallie Kemp with complaints of "back pain" in the lumbar spine from "lift[ing] heavy boxes" on June 19, 2013, less than one month before the accident. At the time, she reported that she had been in pain for a week and that the severity of the pain was a nine out of ten. Examination of the lumbar back revealed "tenderness, pain, and spasm," and she was diagnosed with "low back strain." Mrs. Brumfield also presented at Lallie Kemp on February 2, 2012, with complaints of "joint pain to knee," indicated that she "was told at a young age [that she] had arthritis," and her medical history indicated that she had been prescribed medication for her arthritic pain.
After the instant accident, Mrs. Brumfield indicated at the scene that she did not need medical attention and that she was "okay." Although Mrs. Brumfield testified that two days after the accident she sought medical attention at Lallie Kemp for swelling in her leg and back pain, she conceded that she was unable to produce any records from Lallie Kemp to substantiate this visit. In fact, the first record of her seeking treatment after the accident was not until nearly four months later, on November 5, 2013, when she was seen by Dr. Barrett Johnston at the Advanced Pain Institute, where she presented with complaints of right knee and back pain. On her first visit with Dr. Johnston, Mrs. Brumfield relayed that she had no "previous knee pain." Mrs. Brumfield attended a total of eight visits over an eighteen-month period with Dr. Johnston through March 24, 2015. After x-raying her right knee, Dr. Johnston noted that Mrs. Brumfield had degenerative changes and osteoarthritis in her right knee and administered a steroid injection, which resulted in "significant improvement" of her knee pain. He further prescribed pain and anti-inflammatory medications, including Meloxicam, which had previously been prescribed for her arthritic condition prior to the accident herein. Although Dr. Johnston opined that Mrs. Brumfield's underlying disease was exacerbated by the accident, he conceded that the degenerative changes and arthritis in her right knee would have taken "years" to develop. Although he concluded that Mrs. Brumfield would benefit from physical therapy and an orthopedic evaluation, both of which he recommended, he was not aware whether she followed through with such treatment. On her last visit, Dr. Johnston recommended a second steroid injection to her right knee and continued to prescribe Meloxicam.
Mrs. Brumfield's certified medical and billing records that were subpoenaed and subsequently produced by Lallie Kemp did not include any medical or billing records evidencing that she received medical treatment at Lallie Kemp over the days following the July 12, 2013 accident.
Allstate points out in brief that after four visits, there was an eight-month gap in Mrs. Brumfield's treatment with Dr. Johnston between January 4, 2014 and September 2, 2014. Then, after two visits, there was a four-and-a-half month gap in treatment from September 30, 2014 to February 19, 2015.
Mrs. Brumfield conceded that she did not follow through with the second injection. Moreover, the record establishes that in her deposition, Mrs. Brumfield testified that the pain she was having in her back after the 2013 accident was in the same area where she was experiencing pain before the 2013 accident.
After a thorough review, we find that the record is replete with conflicts in Mrs. Brumfield's testimony. As the trier of fact, the trial court was required to consider and weigh all of the evidence in making its factual determinations and evaluations of credibility in determining whether, based on the evidence presented, she has shown a right to relief. On review, we find that the trial court's determination that she had shown no right to relief is reasonable and supported by the record. Thus, absent a finding of manifest error or an abuse of discretion, we find no error in these determinations. See Stobart v. State through Department of Transportation and Development, 617 So. 2d at 882.
Considering the testimony in the record herein, we are unable to say the trial court erred in concluding that Mrs. Brumfield failed to meet her burden of proving that her damages resulting from the instant accident exceeded $50,000.00. Moreover, because we find no error in the trial court's finding that Mrs. Brumfield failed to establish that her claims exceeded the underlying carrier limits of $50,000.00 or in the trial court's subsequent grant of involuntary dismissal, we find no merit to Mrs. Brumfield's contention that Allstate was arbitrary and capricious in failing to make a reasonable tender.
These assignments of error also lack merit.
CONCLUSION
For the above and foregoing reasons, the October 18, 2017 judgment of the trial court, granting Allstate Insurance Company's motion for involuntary dismissal and dismissing Mrs. Brumfield's claims against Allstate with prejudice, is hereby affirmed. Costs of this appeal are assessed to the plaintiff/appellant, Tracy Brumfield.
AFFIRMED.