LIVINGSTON C. GUIDRY, ET UX.
KYSHA LASHANE BERNARD, ET AL
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT. PARISH OF LAFAYETTE, NO. C-20110505. HONORABLE MARILYN C. CASTLE, DISTRICT JUDGE.
Thomas R. Hightower, Jr., A Professional Law Corporation, Lafayette, LA, COUNSEL FOR DEFENDANT/APPELLEE: Livingston Guidry, Shelter Mutual Insurance Company.
Glenn Armentor, J. Christian Lewis, The Glenn Armentor Law Corporation, Lafayette, LA, COUNSEL FOR DEFENDANT/APPELLANT: Kysha Lashane Bernard.
Nicholas Gachassin, Jr., Gary Delahoussaye, Gachassin Law Firm, Lafayette, LA, COUNSEL FOR PLAINTIFFS/APPELLEES: Livingston C. Guidry, Phena Guidry.
Michael J. Breaux, Lafayette, LA, COUNSEL FOR DEFENDANT/APPELLEE: Shelter Mutual Insurance Company, as Underinsured Motorist Carrier of Phena Guidry.
Ian A. Macdonald, Jones and Walker, Lafayette, LA, COUNSEL FOR DEFENDANT/APPELLEE: Louisiana Farm Bureau Casualty Insurance Company.
Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, Jimmie C. Peters, Marc T. Amy, and Elizabeth A. Pickett, Judges. Amy, J., dissents and assigns reasons.
[14-234 La.App. 3 Cir. 1]
We granted rehearing in this case to consider the propriety of our original opinion and conclusion therein on the issue of liability. Upon reconsideration, we conclude that we erred in our original opinion and reverse the trial court's determination that neither party carried their burden of proof. We further conclude that Ms. Bernard carried her burden of proving that Mr. Guidry caused the October 10, 2010 automobile accident and that she suffered injuries as a result of the accident. Accordingly, we render judgment in favor of Ms. Bernard.
As set forth in our original opinion, the Guidrys alleged that Mr. Guidry turned right on to Louisiana Avenue from Carmel Drive on a green light and that the accident occurred north of the intersection when Ms. Bernard changed lanes and collided with their vehicle. Ms. Bernard alleged, however, that immediately before the accident occurred, she was traveling in the far right lane of Louisiana Avenue and entered the intersection at Carmel Avenue on a green light, but Mr. Guidry failed to yield to her and turned in front of her onto Louisiana Avenue, causing their vehicles to collide.
In her application for rehearing, Ms. Bernard argues that the majority erred in concluding that Mr. Guidry's inconsistent testimony as to when and where the accident occurred--in the intersection as he was turning right or north of the intersection after he completed his turn--" was due to a 'misperception' that did not reflect upon [his] credibility as to the color of the traffic light" when he made his turn. We agree.
We are mindful that the manifest error standard of review applies when the fact finder's determination is based upon a credibility evaluation " for only the [14-234 La.App. 3 Cir. 2] factfinder can be aware of the variations in demeanor
and tone of voice that bear so heavily on the listener's understanding and belief in what is said." Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (citing Canter v. Koehring, 283 So.2d 716 (La.1973)). This standard cannot be applied blindly, however. Accordingly, " [w]here documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness's story," we can conclude that " a finding purportedly based upon a credibility determination" is manifestly erroneous or clearly wrong. Id. at 844-45.
The trial court found that both parties were " very credible" ; yet, it rejected Mr. Guidry's testimony on two of the three determinative issues in this case. First, the trial court concluded that the physical damage to the parties' vehicles supported Ms. Bernard's testimony that the accident occurred in the intersection while Mr. Guidry was in the process of turning from Carmel Drive on to Louisiana Avenue. In doing so, the trial court rejected Mr. Guidry's testimony that the accident occurred north of the intersection after he completed his turn. Notably, Mr. Guidry's trial testimony on that issue contradicted his written statement given the day of the accident, where he stated that " while turning right . . . my vehicle was struck." Mr. Guidry testified this inconsistency was due to it being " hectic" with a lot of people around and his worry about his wife's injuries after the accident. According to Mr. Guidry, he was so worried about his wife's injuries that he " mistakenly" wrote down ...