Opinion
NO. 12-CA-795
04-02-2013
KATHLEEN DUHÉ v. ALLSTATE INSURANCE COMPANY AND MARIE GUILLOT
CHARLES C. WILSON Attorney at Law COUNSEL FOR APPELLEE, KATHLEEN Duhé RANDALL STEVEN BEARD Attorney at Law COUNSEL FOR APPELLANT, MARIE GUILLOT
NOT DESIGNATED FOR PUBLICATION
ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT
PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA
NO. 61,109, DIVISION "C"
HONORABLE J. STERLING SNOWDY, JUDGE PRESIDING
SUSAN M. CHEHARDY
CHIEF JUDGE
Panel composed of Judges Susan M. Chehardy,
Marc E. Johnson, and Hans J. Liljeberg
CHARLES C. WILSON
Attorney at Law
COUNSEL FOR APPELLEE,
KATHLEEN Duhé
RANDALL STEVEN BEARD
Attorney at Law
COUNSEL FOR APPELLANT,
MARIE GUILLOT
AFFIRMED IN ACCORDANCE WITH
U.R.C.A. 2-16.2 A(2), (5), (6), (8) AND (10)
On September 12, 2010, Kathleen Duhé was involved in a motor vehicle accident with Marie Guillot. The matter was tried in a bench trial on March 27, 2012. On April 27, 2012, the trial judge issued judgment in favor of Kathleen Duhé finding that Marie Guillot was 100% at fault in the accident and awarding general and special damages of $15,058.17 to plaintiff-appellee, Kathleen Duhé , for injuries resulting from the motor vehicle accident in question.
At trial, the parties stipulated that Allstate Insurance Company had in effect a policy of insurance covering Marie Guillot at all times relevant to this matter. Further, the parties stipulated to the authenticity of plaintiff's medical records introduced at trial.
In its Judgment, the trial court presented extensive and comprehensive written reasons for judgment that more than adequately explain its decision. After a careful review of the record and an evaluation of the relevant jurisprudence, we find no manifest error, legal error, or abuse of discretion in the trial court's factual findings and conclusions of law. We agree with the trial court's conclusions and adopt as our own the written reasons for judgment signed by the trial court on April 27, 2012, because we find that those reasons effectively discuss the factual and procedural background of this case and provide an excellent analysis of the applicable law.
A copy of the trial court's Judgment is attached to this opinion as Appendix "A."
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At trial and on appeal, Mrs. Guillot, who was the overtaking or following driver, argued that she was not at fault in this accident because Mrs. Duhé was executing a left turn when the accident occurred. Mrs. Guillot, citing Plaisance v. Epherson, 466 So.2d 485, 487 (La.App. 5th Cir. 1985), maintained that, if a collision occurs during an attempted left turn, the left-turning driver has the burden of proving freedom from negligence.
Mrs. Duhé responds, as she did at trial, that, under Coleman v. Parret, 98-121 (La.App. 5 Cir. 7/28/98), 716 So.2d 463, the overtaking motorist failed in her duty to ascertain that her passing maneuver could be completed safely under the circumstances and the trial court correctly apportioned 100% fault to the overtaking vehicle.
In the case at bar, the testimony of Mrs. Duhé and Mrs. Guillot were contradictory, but the trial court apparently found Mrs. Duhe's statements, and that of her witness, more credible than that of Mrs. Guillot and her witness. Credibility determinations are subject to the strictest deference and the manifest error-clearly wrong standard demands great deference for the findings of the trier of fact. Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305, 1313. After thorough review of the record in this matter, we find no error on the part of the trial court.
Therefore, this matter is affirmed in accordance with U.R.C.A. 2-16.2 A(2), (5), (6), (8) and (10). Costs are assessed to the appellant, Marie Guillot and Allstate Insurance Company.
AFFIRMED IN ACCORDANCE WITH
U.R.C.A. 2-16.2 A(2), (5), (6), (8) AND (10)
FORTIETH JUDICIAL DISTRICT COURT
IN AND OF THE PARISH OF ST. JOHN THE BAPTIST
STATE OF LOUISIANA
DIVISION "C
KATHLEEN DUHE
VERSUS
ALLSTATE INSURANCE COMPANY AND MARIE GUILLOT
________________
DEPUTY CLERK
JUDGMENT
This matter came before the court for a Bench Trial on March 27, 2012.
PRESENT: CHARLES WILSON, for Plaintiff
STEVEN BEARD, for Defendants
On September 12, 2010 Kathleen Duhe ("Ms. Duhe"), the plaintiff in this matter, was involved in a car accident while traveling north on Central Avenue in Reserve, Louisiana. Ms. Duhe claims that the defendant, Marie Guillot ("Ms. Guillot"), struck her vehicle as Ms. Guillot attempted to bypass her on the left side of her vehicle. Ms. Duhe claims that she was attempting to turn left (or west) off of Central Avenue onto her private driveway at the time of the collision.
Ms. Duhe contends that as a direct result of the car accident, she was physically injured and sustained damages to her 2001 Saturn vehicle. On September 13, 2010, Ms. Duhe sought medical attention with Dr. Paul Villian at Ochsner Medical Center in Kenner, Louisiana. At that time, she was diagnosed with a neck and cervical strain. A week later, Ms. Duhe began treating at Provance Chiropractic Clinic ("Provance"). While treating at Provance, she was diagnosed with Cervical Stenosis, Cervical Disc Degeneration, Cervical Strain/Sprain, Lumbar Sarasin/Sprain, Lumbar Disc Degeneration, Cervical Segmental Dysfunction, Lumbar Intersegmental Dysfunction, and Idiopathic Scoliosis Lumbar. The plaintiff treated at Provance for a two month period.
Ms. Duhe accuses the defendant of failing to stop when required to do so, careless operation of a vehicle, and general negligent operation of a vehicle. Ms. Duhe further asserts that she is free from fault in this accident. The defendants deny liability and argue that Ms. Duhe was wholly, or in part, the proximate cause in the collision due to her failure to see what she should have seen under the circumstance, failure to use due care, driving in a careless and reckless manner, failing to avoid the collision, and failing to maintain proper control over her vehicle.
LAW
La. Civil Code Art. 2315 provides that every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. The Code states that every person is responsible for the damage he occasions, not merely by his act, but by his negligence, his imprudence or his want of skill. La. C.C. Art. 2316. Plaintiffs bear the burden of proving every element of their case by a preponderance of the evidence, that is, whether it is more likely than not, that the harm was caused by the tortuous conduct of the Defendant. Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La. 1993). In determining whether a Defendant's conduct is negligent, the courts apply the duty/risk analysis. Todd v. State Through Dept. of Social Services, Office of Community Services, 685 So.2d 313, 317 (La. App. 5 Cir. 1996). This requires the following findings: that the conduct was a cause in fact of the resultant harm; that a defendant owed plaintiff a duty; that the duty owed was breached by a defendant; that the risk of harm was within the scope of the breached duty. Negligent conduct is a cause-in-fact of harm to another if it was a substantial factor in bringing about that harm. Socorro v. City of New Orleans, 579 So.2d 931, 939 (La. 1991).
ANALYSIS
The court finds that under the circumstances, the defendant, Marie Guillot, failed to ascertain whether bypassing Ms. Dune's vehicle on the left side could be completed with safety. Ms. Duhe claims that Ms. Guillot caused the collision when she failed to maintain a safe distance behind Ms. Duhe's vehicle and failed to make a safe maneuver when attempting to bypass her vehicle. Louisiana law provides that "the driver of following or overtaking vehicle must be alert to actions of motorist preceding him on highway." Furthermore, Louisiana courts have found that "the driver of overtaking or passing vehicle has duty to ascertain before attempting to pass preceding vehicle that from all circumstances of traffic, lay of land, and condition of highway passing can be completed with* safety." Duncan v. Safeway Ins. Co,. 799 So.2d 1161, 1163 (La. App. 2 Cir. 2001). In judging whether a left turn can be made in safety, the turning motorist has the right to assume that the following motorist will observe all duties imposed upon him by law and common sense. Id. at 1164. Ms. Duhe testified that she was unaware that Ms. Guillot was attempting to bypass her vehicle on the left until her vehicle was struck by Ms. Guillot on the front driver's side. Ms. Duhe testified that at no time did Ms. Guillot illuminate her turn signal before attempting to bypass her vehicle and argues Ms. Guillot failed to exercise reasonable caution when attempting to overtake her vehicle. Ms. Guillot admitted that she did not illuminate her turn signal when she changed lanes to overtake Ms. Duhe from the left.
However, Ms. Guillot contends that Ms. Duhe's car was veering off of the highway toward a parking lot on the right side (east) of Central Avenue when she attempted to pass on the left of her vehicle. Ms. Guillot argues that her inference that Ms. Duhe was turning right was reasonable because Ms. Duhe did not illuminate her turn signal in either direction and her front-end tires were "off of the road" toward the right shoulder of the street. Ms. Duhe refutes this testimony. Ms. Guillot also stated that she made a reasonable check for onward coming traffic before attempting to pass the plaintiff on the left side. Ms. Guillot's sister, Tara Wheeler, was a passenger in the vehicle with Ms. Guillot at the time of the accident. Ms. Wheeler testified that she observed Ms. Duhe's vehicle veering to the right of the road and that her tires were over the white striping on side of the road. Ms. Wheeler testified that she did not notice Ms. Duhe's left turn signal illuminated when Ms. Guillot attempted to bypass Ms. Duhe's vehicle.
Furthermore, Ms. Guillot asserts that Ms. Duhe's vehicle made a sudden an unexpected left turn and crashed into her vehicle as she was attempting to pass Ms. Duhe. The Fifth Circuit has held that if a collision occurs during attempted left turn, person attempting to make turn has tthe burden of proving freedom from negligence. Plaisance v. Epherson, 466 So.2d 485, 487 (La. App. 5 Cir. 1985). Ms. Duhe attempted to prove that she was free of negligence by offering testimony that she always uses her turn left signal and checks her rear view mirror before making the turn into her driveway off of Central Avenue. To corroborate her testimony, Ms. Duhe's son, Dennis Landry, offered that he has been a passenger in a vehicle while his mother was driving and that she is a cautious driver and that she always uses her turn signals when turning onto her driveway. However, Mr. Landry was not present with the plaintiff at the time of the accident.
Also, the defendants point out that case law has creates a duty for motorist attempting to turn left to make certain that the turn can be made without danger to normal overtaking or oncoming traffic and that the turning motorist must yield right-of-way to such vehicles. Id. Ms. Duhe testified that she was not aware that Ms. Guillot was attempting to overtake her vehicle until the collision occurred. Ms. Duhe testified that no time did she observe Ms. Guillot's turn signal illuminated and that she was not aware of Ms. Guillot changing lanes to bypass her vehicle. As previously stated, Ms. Guillot does not contest that she did not have her turn signal illuminated. Therefore, the court finds that Ms. Duhe did not have an affirmative duty to make certain that her turn could be made without danger to overtaking traffic because she was unaware that her vehicle was being overtaken.
The court is of the opinion that following motorists must use an abundance of caution while attempting to overtake or bypass a preceding vehicle. Here, Ms. Guillot testified that she observed Ms. Duhe's vehicle slowing down and traveling a reduced speed, but that she was not certain of what action Ms. Duhe was readying to make. Ms. Guillot testified that she assumed Ms. Duhe was preparing to turn right off of Central Avenue into an abandoned parking lot because her vehicle appeared to be veering toward the right shoulder. Ms. Guillot assumed that Ms. Duhe was turning right off of the highway, and instead of waiting for Ms. Duhe to safely complete her turn, Ms. Guillot attempted to proceed around Ms. Duhe's vehicle without adequate warning, thereby causing the collision. The court believes that Ms. Guillot was in the best position to assess whether or not her maneuver could have been completed safely and she failed to do so. At no point did Ms. Guillot, by her own admission, give any indication that she was readying to change lanes to bypass Ms. Duhe's vehicle and we find that to be a breach of her duty as an overtaking motorist. Therefore, based on the findings of the court, with further consideration of applicable law, the record, the testimony, and exhibits, the court finds in favor of the plaintiff, and makes the following awards:
+---------------------------------------------------------------------+ ¦General Damages ¦$6,000.00¦ +-----------------------------------------------------------+---------¦ ¦Special damages: ¦ ¦ +-----------------------------------------------------------+---------¦ ¦Property damage to Saturn automobile, repairs by Ray Brandt¦$2401.17 ¦ +-----------------------------------------------------------+---------¦ ¦Expenses for plaintiff rental vehicle ¦$1634.95 ¦ +-----------------------------------------------------------+---------¦ ¦Medical expenses the treatment of plaintiff ¦$3549.70 ¦ +-----------------------------------------------------------+---------¦ ¦Court costs and expenses ¦$1472.35 ¦ +---------------------------------------------------------------------+ The awards include legal interest from date of judicial demand until paid. Court costs are also awarded to plaintiff.
Judgment rendered this ___ day of April, 2012 in Edgard Louisiana.
________________
J. STERLING SNOWDY
JUDGE, 40th JUDICIAL DISTRICT COURT
SUSAN M. CHEHARDY
CHIEF JUDGE
FREDERICKA H. WICKER
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON
ROBERT M. MURPHY
STEPHEN J. WINDHORST
HANS J. LIUEBERG
JUDGES CHERYL Q. LANDRIEU
CLERK OF COURT
MARY E. LEGNON
CHIEF DEPUTY CLERK
SUSAN BUCHHOLZ
FIRST DEPUTY CLERK
TROY A. BROUSSARD
DIRECTOR OF CENTRAL STAFF
FIFTH CIRCUIT
101 DERBIGNY STREET (70053)
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054
www. fifthcircuit. org
NOTICE OF JUDGMENT AND
CERTIFICATE OF MAILING
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN MAILED ON OR DELIVERED THIS DAY MARCH 27, 2013 TO THE TRIAL JUDGE, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
________________
CHERYL Q. LANDRIEU
CLERK OF COURT
12-CA-795
RANDALL S. BEARD ATTORNEY AT LAW 3900 NORTH CAUSEWAY BOULEVARD SUITE 405 METAIRIE, LA 70002 CHARLES C. WILSON TREGG C. WILSON ATTORNEYS AT LAW 133 SHAW STREET HAHNVILLE, LA 70057