Opinion
NUMBER 2016 CA 1015
03-08-2017
CLARK NIXON v. TERREBONNE LEVEE & CONSERVATION DISTRICT, ARCH INSURANCE COMPANY AND DAVID DANOS
Michael D. Lonegrass Scott M. Raney, Sr. New Orleans, LA Attorneys for Appellants Defendants - Terrebonne Levee & Conservation District, Arch Insurance Company and David Danos Damon J. Baldone Thomas E. Dunn Houma, LA Attorneys for Appellee Plaintiff - Clark Nixon
NOT DESIGNATED FOR PUBLICATION
Appealed from the 32nd Judicial District Court In and for the Parish of Terrebonne, Louisiana
Trial Court Number 166888 Honorable Juan W. Pickett, Judge Michael D. Lonegrass
Scott M. Raney, Sr.
New Orleans, LA Attorneys for Appellants
Defendants - Terrebonne Levee &
Conservation District, Arch Insurance
Company and David Danos Damon J. Baldone
Thomas E. Dunn
Houma, LA Attorneys for Appellee
Plaintiff - Clark Nixon BEFORE: WELCH, HIGGINBOTHAM, CRAIN, HOLDRIDGE, AND CALLOWAY, JJ. WELCH, J.
Calloway, J., serving as judge pro tempore of the Court of Appeal, First Circuit, by special appointment of the Louisiana Supreme Court.
The defendants, Terrebonne Levee & Conservation District ("TLCD"), Arch Insurance Company, and David Danos, appeal a judgment in favor of the plaintiff, Clark Nixon, which awarded Mr. Nixon damages from an accident that occurred between him and Mr. Danos, an employee of TLCD who was acting in the course and scope of his employment at the time of the accident. The defendants also challenge a subsequent judgment casting them with costs. For reasons that follow, we affirm the trial court judgment awarding the plaintiff damages and we affirm in part and vacate in part the subsequent judgment assessing the defendants with costs and remand with instructions. We issue this memorandum opinion in compliance with Uniform Rules—Courts of Appeal, Rule 2-16.1(B).
According to the allegations of Mr. Nixon's petition, on June 1, 2011, he was employed by The Merlin Group, Inc. ("Merlin") as a dump truck operator and was working at a job site known as the Houma Canal Levee Project ("the job site") in Montegut, Terrebonne Parish. At the same time, Mr. Danos was operating a bulldozer at the same job site. Mr. Nixon asserted that he was in a parked position waiting to unload a truck load of dirt, when suddenly and without warning, Mr. Danos backed the bulldozer and struck the dump truck that Mr. Nixon was operating. Mr. Nixon alleged that as a result of the accident, he sustained bodily injuries, and therefore, he filed the petition seeking to recover damages from the defendants. Mr. Nixon claimed that the accident was caused by the negligence of Mr. Danos, who at the time of the accident was in the course and scope of his employment with TLCD, and that TLCD was vicariously liable for the negligent acts of its employee, and that Arch Insurance Company had issued a policy of liability insurance to TLCD, which afforded coverage for the damages sustained by Mr. Nixon.
Mr. Nixon filed his original petition on May 29, 2012; however, he subsequently amended that petition on November 12, 2014.
Louisiana Workers' Compensation Corporation ("LWCC"), the workers' compensation insurer of Mr. Nixon's employer, Merlin, intervened in this suit seeking indemnification, recovery, or reimbursement for workers' compensation benefits it paid to or on behalf of Mr. Nixon, and pursuant to a stipulation by the parties, judgment was entered in favor of LWCC with respect to its claims. There are no issues on appeal with respect to LWCC's claims.
The defendants filed an answer generally denying the allegations of Mr. Nixon's petition and asserting that they were not liable for Mr. Nixon's damages because the accident was caused solely by Mr. Nixon's negligent actions or by the actions of persons for whose conduct the defendants are not responsible. After a trial on the merits, the trial court issued written reasons for judgment finding that the accident was caused by the fault or negligence of Mr. Nixon, Mr. Danos, and TLCD and allocating 50% fault to Mr. Nixon and 50% fault to Mr. Danos and TLCD. In the written reasons for judgment, the trial court further determined that Mr. Nixon's total damages were $343,740.94, but in accordance with its apportionment of fault, reduced Mr. Nixon's damages by 50%. A judgment in accordance with the trial court's reasons for judgment was signed on December 28, 2015. Thereafter, by judgment signed on February 18, 2016, the trial court granted the plaintiff's motion to tax all costs to the defendants and awarded the plaintiff costs in the total amount of $39,542.01. The defendants have appealed both the December 28, 2015 and February 18, 2016 judgments, challenging the trial court's determinations regarding liability and allocation of fault, and assessment of costs.
Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under the general negligence principles of La. C.C. art. 2315. For liability for damages to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard of care (the breach of duty element); (3) the defendant's substandard conduct was a cause in fact of the plaintiff's injuries (the cause in fact element); (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of protection element); and (5) actual damages (the damage element). Pinsonneault v. Merchants & Farmers Bank & Trust Co., 2001-2217 (La. 4/3/02), 816 So.2d 270, 275-276. Duty is a question of law; however, breach of duty, cause in fact, and actual damages are all factual issues. Bowman v. City of Baton Rouge/Parish of East Baton Rouge, 2002-1376 (La. App. 1st Cir. 5/9/03), 849 So.2d 622, 627, writ denied, 2003-1579 (La. 10/3/03), 855 So.2d 315; Snearl v. Mercer, 99-1738 (La. App. 1st Cir. 2/16/01), 780 So.2d 563, 574, writs denied, 2001-1319 and 2001-1320 (La. 6/22/01), 794 So.2d 800 and 801.
The two-part test for the appellate review of a factual finding is: (1) whether there is a reasonable factual basis in the record for the finding of the trial court; and (2) whether the record further establishes that the finding is not manifestly erroneous. See Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987). Even though an appellate court may feel its own evaluations and inferences are as reasonable as the fact finder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989); Barham & Arceneaux v. Kozak, 2002-2325 (La. App. 1st Cir. 3/12/04), 874 So.2d 228, 240, writ denied, 2004-0930 (La. 6/4/04), 876 So.2d 87.
The allocation of fault is likewise a factual finding within the discretion of the trier of fact and should not be disturbed on appeal in the absence of manifest error. See Dickens v. Commercial Union Insurance Company, 99-0698, 99-0699 (La. App. 1st Cir. 6/23/00), 762 So.2d 1193, 1198. An appellate court may only reallocate fault if it finds the trial court was clearly wrong or manifestly erroneous in its allocation of fault. See Clement v. Frey, 95-1119, 95-1163 (La. 1/16/96), 666 So.2d 607, 611. The allocation of fault is evaluated under the following factors: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and (5) any extenuating circumstances that might require the actor to proceed in haste without proper thought. Watson v. State Farm Fire & Casualty Insurance Company, 469 So.2d 967, 974 (La. 1985)
In this case, the record establishes that on June 1, 2011, Mr. Nixon was employed by Merlin and was working as a dump truck driver at the TLCD job site by virtue of a contractual relationship between Merlin and the TLCD. Essentially, Mr. Nixon would haul dirt to the job site where dirt was being stockpiled for the purpose of building a levee at a later date. Generally, the dump truck drivers would back their trucks up to the dirt pile and unload the dirt, and then a bulldozer operator (employed by TLCD) would push the dirt from the pile up a ramp, travel in reverse back down the ramp, and then repeat the process. TLCD also employed a "spotter," who verified the dump truck's load of dirt, documented it, and directed the dump truck drivers where to dump the load of dirt. On the date of the accident, Mr. Nixon entered the job site, had his load verified by the spotter, Ahmad Khelik, and then proceeded to drive in reverse to the dirt pile designated for dumping his load. At the same time, Mr. Danos, who was operating the bulldozer, was traveling up and down the ramp moving dirt. The dump truck driven by Mr. Nixon and the bulldozer operated by Mr. Danos collided and Mr. Nixon claimed that he was injured as a result of the accident.
Pertinent to the issue of TLCD's liability for the accident and the allocation of fault between the defendants and Mr. Nixon, the trial court noted there was a conflict in the testimony concerning where the accident occurred and how it happened. Mr. Nixon testified that he had stopped the dump truck, that all four of the dump truck's tires were on level ground (as opposed to being on the inclined ramp on the slope of the dirt pile), and that he was about to dump the load of dirt when Mr. Danos backed the bulldozer into the rear of the dump truck. Although Mr. Danos confirmed that Mr. Nixon had stopped the dump truck, he testified that Mr. Nixon had backed all four tires of the dump truck onto the inclined ramp—a place where dump trucks were not supposed to be—when he backed the bulldozer into the rear of the dump truck. Mr. Khelik, the "spotter," testified at trial and at his deposition that Mr. Nixon had backed the dump truck partially on the inclined ramp (the back tires were on the ramp) and that both vehicles backed into each other. However, Mr. Khelik admitted that he did not see the vehicles at the moment of impact. Mr. Khelik also stated that he observed Mr. Nixon operating the dump truck in reverse at an unsafe speed immediately prior to the accident, whereas Mr. Nixon denied that he was driving erratic or at an unsafe speed. Mr. Khelik stated in his deposition that immediately after the accident, Mr. Danos told him that the dump truck backed into the bulldozer and that he (Mr. Khelik) told Mr. Danos that the two vehicles backed into each other. After the collision and prior to an accident report being prepared, Mr. Nixon unloaded the dirt and Mr. Danos pushed it up the ramp; thus, there was no physical evidence as to where the accident occurred.
In addition, the trial court noted that there was conflicting testimony as to the physical damage to the vehicles. Mr. Nixon testified that the collision caused damage to two areas on the rear of the dump truck; Mr. Danos testified that there was no damage to the bulldozer and that he did not notice any damage to the dump truck. Merlin Lirette (the owner of Merlin and the dump truck) did not specifically remember any damage to the dump truck caused by the bulldozer because it already had a "bunch of dents on the back" of it, but he admitted that Mr. Nixon showed him a small dent, claiming that it was where the bulldozer had hit the dump truck. Mr. Reggie Dupre, the Executive Director of TLCD testified that the bulldozer was rented and the final invoice from the rental company indicated there was no damage to the bulldozer when it was returned.
The trial court noted that the testimonies of Mr. Nixon, Mr. Danos, and Mr. Khelik conflicted; however, the trial court believed that Mr. Nixon, Mr. Danos, and Mr. Khelik were truthful in regards to their perceptions as to how and where the accident occurred. The trial court further noted that while their testimony conflicted as to whether the accident occurred on the ramp or on level ground, the evidence clearly and undisputedly established that neither Mr. Nixon nor Mr. Danos saw each other in the area of the impact prior to the collision—Mr. Danos testified that he had an unobstructed view, but failed to see the large dump truck prior to the collision, and Mr. Nixon likewise failed to see the bulldozer in the area where the impact occurred when he entered the collision zone. Thus, the trial court found that neither Mr. Nixon nor Mr. Danos took the necessary precautions before undertaking a backing maneuver, kept a proper lookout, or fulfilled their duty to ensure that they could drive backwards with reasonable safety both before and during the maneuver.
With respect to the location of the accident, the trial court noted that there was no dispute in the testimony of Mr. Nixon, Mr. Danos, or Gary Gautreaux (the Department Head for the TLCD) that dump trucks were not allowed to back up or drive onto the ramp because it would create a hazard due to the ramp's designation as the work area for the bulldozer operator, and the bulldozer operator would not expect a dump truck driver on the ramp. Both Mr. Danos and Mr. Lirette testified that Mr. Nixon was a good dump truck driver. As set forth above, Mr. Nixon testified that he did not back the dump truck onto any portion of the ramp, whereas Mr. Danos testified that Mr. Nixon had backed up to the top of the ramp and his front tires were completely on the ramp; Mr. Khelik testified that the dump truck was partially on the ramp, as his rear wheels were on the ramp, but his front wheels were not. Based on the testimony of the witnesses, the trial court concluded that the dump truck was partially on the ramp when the collision occurred.
The trial court also noted that TLCD also employed a "spotter" to direct the dump trucks as they drove in reverse to the designated dumping location. Mr. Gautreaux testified that the "spotter" should be located at the foot of the dirt pile and that some of their duties included directing the dump truck drivers and making sure that the dump trucks could safely unload their dirt. In addition, Mr. Gautreaux testified that the "spotters" should not direct the dump truck drivers to areas where the bulldozer operators are working. Based on this evidence, the trial court concluded that Mr. Khelik failed to properly insure that Mr. Nixon backed into the designated spot to unload the dirt.
Given the trial court's factual findings, it then concluded that the accident was caused by the fault or negligence of Mr. Nixon, Mr. Danos, and TLCD, and it then allocated 50% fault to Mr. Nixon and 50% fault to Mr. Danos and TLCD. Based on our review of the record, we find that the record reasonably supports the trial court's factual findings with respect to liability and the allocation of fault, and we cannot say that those findings are manifestly erroneous. Therefore, the December 28, 2015 judgment of the trial is affirmed.
With respect to costs, the trial court's February 18, 2016 judgment awarded the plaintiff costs in the amount of $39,542.01. Specifically, these costs were for: (1) expert witness fees in the amount of $20,606.83; (2) deposition costs in the amount of $11,315.10; and (3) court costs in the amount of $7,620.08. On appeal, the defendants maintain that they should not have been found liable for the accident, and as such, they should not have been assessed with any costs. Alternatively, they contend that the trial court's assessment of costs should be amended to eliminate the assessment of expert witness fees since the experts did not testify at the rule to tax costs.
In this alternative argument, the defendants do not challenge the amount of costs awarded by the trial court for deposition costs and court costs.
Louisiana Code of Civil Procedure article 1920 provides that "[u]nless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause. Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable." Generally, the party cast in judgment should be taxed with costs; however, the trial court may assess costs in any equitable manner. See Steadman v. Georgia-Pacific Corporation, 95-1463 (La. App. 1st Cir. 4/6/96), 672 So.2d 420, 428, writ denied, 96-1494 (La. 9/20/96), 679 So.2d 440. The trial court has great discretion in awarding costs, including expert witness fees. Samuel v. Baton Rouge General Medical Center, 99-1148 (La. App. 1st Cir. 10/2/00), 798 So.2d 126, 131-132. Thus, on appeal, the amount and fixing of expert fees will not be disturbed in the absence of an abuse of that discretion. Samuel, 798 So.2d at 132.
In this case, costs were assessed by the trial court in accordance with the general rule that a party cast in judgment should be cast with costs. Because we found no error in the trial court's determination that TLCD was liable to the plaintiff for the accident and was cast in judgment, we cannot say that the trial court abused its discretion in determining that all costs should be assessed to the defendants.
With respect to the amount of costs assessed for expert witness fees, La. R.S. 13:3666 sets out the general rule regarding compensation of expert witnesses and provides, in pertinent part, as follows:
A. Witnesses called to testify in court only to an opinion founded on special study or experience in any branch of science, or to make scientific or professional examinations, and to state the results thereof, shall receive additional compensation, to be fixed by the court, with
reference to the value of time employed and the degree of learning or skill required.
B. The court shall determine the amount of the fees of said expert witnesses which are to be taxed as costs to be paid by the party cast in judgment either:
(1) From the testimony of the expert relative to his time rendered and the cost of his services adduced upon the trial of the cause, outside the presence of the jury, the court shall determine the amount thereof and include same.
(2) By rule to show cause brought by the party in whose favor a judgment is rendered against the party cast in judgment for the purpose of determining the amount of the expert fees to be paid by the party cast in judgment, which rule upon being made absolute by the trial court shall form a part of the final judgment in the cause.
In Wampold v. Fisher, 2001-0808 (La. App. 1st Cir. 6/26/02), 837 So.2d 638, 640, this court discussed the assessment of expert witness fees and explained what evidence a litigant must introduce to be successful on a motion to tax costs:
See also Wingfield v. State ex rel. Department of Transportation and Development, 2003-1740 (La. App. 1st Cir. 5/14/04), 879 So.2d 766, 770, providing that:
Experts are only entitled to reasonable fees and related costs. Neither the agreement between the hiring party and the expert, nor the bill submitted to the court, binds the court's decision. Factors to be considered by the trial court in setting expert fees and related costs include: the time spent testifying at trial, time spent in preparatory work for trial, time spent away from regular duties while waiting to testify, the extent and nature of work performed, and the knowledge, attainments, and skill of the expert. Additional considerations include the helpfulness of the expert's testimony to the court, the amount in controversy, the complexity of the problem addressed by the expert, and awards to experts in similar cases. While an expert may receive fees for preparatory work, this is limited to the work done in preparation for trial, not consultations that only assist the attorney in his preparation for trial. Experts who testify by deposition may also have their fees taxed as costs, provided that their depositions have been introduced as evidence.
In setting expert fees and related costs for in-court time, such as testimony and depositions submitted at trial, the trial court may rely upon its own in-court observations and experiences, without further proof. However, for work done or expenses incurred outside the courtroom, such as time spent gathering facts in preparation for trial testimony and time spent away from regular duties, the plaintiff in rule must submit competent and admissible evidence. Unless the parties stipulate to the specifics and costs of the out-of-court work, the expert must testify at the trial, or a subsequent hearing on the rule to tax costs, and be subject to cross-examination. Thus, ... the mere assertions of an attorney and the expert via the submitted bill, even in conjunction with an experts affidavit attesting to the correctness and truth of the billing statement, are not sufficient. This is especially true for complex, protracted litigation that has produced high expert fees and related costs.
The specific question presented is what evidence must a litigant introduce on a contradictory rule to fix and tax expert witness fees under [La.] R.S. 13:3666 B(2). A trial court judge may fix an expert witness fee solely on the basis of what the court has observed or experienced concerning the expert's time and testimony in the courtroom or in deposition under [La.] R.S. 13:3666 B(l). This article contemplates that "the testimony of the expert relative to his time rendered and the costs of his services" may be adduced outside the presence of the jury. The court then determines the amount of the fee. If a rule under [La.] R.S. 13:3666 B(2) seeks to set the value on the time the expert witness was before the court, that value may be determined by the court on the basis of its observation of and experience with the expert witness at trial, without further proof. However, if the rule seeks to value the total time employed by the expert, for example, time gathering facts necessary for his testimony, time spent away from regular duties while waiting to testify, or if the party seeks a fee outside of that normally charged by similar experts in that field, then the plaintiff in rule must prove by competent evidence, what service and expertise the expert rendered in addition to that observed by the trial court. Neither [La. R.S. 13:3666]B(1) nor B(2) allows the trial court to value the expert's services performed away from its hearing and observation without competent and admissible evidence.(Citations omitted).
It has been the law for almost a century that the assertion of an attorney and the bill of an expert do not support an award for the total time of an expert. The expert must testify at the trial of the rule and be subject to cross-examination, unless there is some stipulation between the parties. Although testimony as to the time rendered and the costs of services is required, the trial court is not bound by agreements between a party and the expert witness. Expert witnesses are only entitled to reasonable compensation. The fees of an expert may be reduced if expenses were needlessly or excessively incurred.
As previously set forth, herein, the trial court's assessment of costs included an award of expert witness fees in the amount of $20,606.83. This award was broken down as follows: Charles Theriot—$6,931.50 for fees dated September 8, 2014, April 3, 2015, and November 12, 2015; Bobbie Roberts—$2,250.00 for fees dated June 17, 2014, and November 22, 2015; Paul Gogulski—$9,425.33 for fees dated January 15, 2015, July 2, 2015, and November 15, 2015; and Dr. Christopher Cenac, Jr.—$2,000 for fees dated October 22, 2015. Of the expert witness fees awarded by the trial court, only Dr. Christopher Cenac, Jr. testified live at the trial; the other expert witnesses testified by deposition. None of the experts testified as to their fees or time—either during their trial or deposition testimony or at the subsequent hearing on the motion to tax costs. From our review of the record, it appears that the expert witness fees sought by Mr. Nixon and awarded by the trial court reflected the total sum of each experts' invoice for fees, which may have included time employed by the experts both in-court and out-of-court. The invoices from the experts are not contained in the record and the record does not reflect that the defendants stipulated to the specifics and costs of the in-court or out-of-court time and work performed by the respective expert witnesses. The mere assertions of the plaintiff's attorney and the expert via the submitted bill (or invoice) are not sufficient to support a court's award of out-of-court work costs. See Wingfield v. State ex rel. Dept. of Transportation and Development, 2003-1740 (La. App. 1st Cir. 5/14/04), 879 So.2d 766, 770.
We note that Dr. Christopher Cenac, Sr. also testified at trial; however, the trial court's judgment awarding expert witness fees did not include an award for the fees of Dr. Christopher Cenac, Sr. --------
Given the inadequacy in the record regarding the details of the fees charged and time spent by the expert witnesses, we cannot determine if the trial court's judgment was an appropriate exercise or an abuse of its discretion. Therefore, in the interest of justice, we vacate that portion of the February 18, 2016 judgment of the trial court awarding expert witness fees and remand this matter for a contradictory hearing to determine expert witness fees, based on the trial court's personal observations at trial, the plaintiff's evidentiary support, and the criteria discussed herein. See La. C.C.P. art. 2164; in accord Wampold, 837 So.2d at 641, and Wingfield, 879 So.2d at 771; see also Reynolds v. Louisiana Department of Transportation, 2015-1304 (La. App. 1st Cir. 4/13/16), 194 So.3d 56, 61-62. In all other respects the February 18, 2016 judgment of the trial court is affirmed.
For all of the above and foregoing reasons, we affirm the December 28, 2015 judgment of the trial court, we vacate that portion of the February 18, 2016 judgment awarding of expert witnesses fees in the amount of $20,606.83 and affirm that judgment in all other respects, and this matter is remanded for a hearing with respect to the expert witness fees.
All costs of this appeal in the amount of $1,199.00 are assessed to the defendants/appellants, Terrebonne Levee & Conservation District, Arch Insurance Company, and David Danos.
DECEMBER 28, 2015 JUDGMENT AFFIRMED; FEBRUARY 18, 2016 JUDGMENT VACATED IN PART AND AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS. CRAIN, J., dissenting in part.
The law relative to the evidence required to recover expert fees is settled. Plaintiff had the opportunity to present the necessary evidence, but failed to do so. Under the circumstances, I would not remand to allow a second opportunity to meet the burden of proof. See In re Lorraine, 15-0085, 2016WL4586047 (La. App. 1 Cir. 9/1/16); see also Reynolds v. Louisiana Dept. of Transp., 15-1304 (La. App. 1 Cir. 4/13/16), 194 So. 3d 56 (Crain, dissenting). I agree with affirming the remainder of the judgment.
(Citations omitted).