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Sharbeno v. Allstate Ins. Co.

Court of Appeal of Louisiana, Third Circuit

December 10, 2014

MARK SHARBENO, ET AL.
v.
ALLSTATE INSURANCE COMPANY, ET AL

APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT, PARISH OF VERNON, DOCKET NO. 80,809, DIVISION B. HONORABLE JOHN C. FORD, DISTRICT JUDGE.

Holli K. Yandle, The Dill Firm, APLC, Lafayette, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT: Safeway Insurance Company of Louisiana.

Barry M. Barnett, Lacroix, Levy and Barnett, Alexandria, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE: Brandy Sharbeno.

Court composed of John D. Saunders, Jimmie C. Peters, and James T. Genovese, Judges.

OPINION

Page 577

[14-670 La.App. 3 Cir. 1] GENOVESE, Judge.

In this personal injury case involving an underinsured motorist (UM) claim, Defendant, Safeway Insurance Company of Louisiana (Safeway), appeals the judgment of the trial court in favor of Plaintiff, Brandy Sharbeno.[1] For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The instant litigation arises out of a single-vehicle accident which occurred in the early morning hours of January 19, 2008, in Vernon Parish, Louisiana. Occupants in the vehicle at the time of the crash were Joseph W. Brittain, nineteen years of age, and Brandy Sharbeno, fourteen years of age. There is considerable dispute concerning the basic facts of the accident, particularly who was operating the vehicle. What is known is that Ms. Sharbeno and Mr. Brittain were occupants in a 1999 Chevrolet Camaro owned bye Mr. Brittain when it crashed. Ms. Sharbeno was injured in the accident, and Mr. Brittain was killed.

Asserting that Mr. Brittain's negligence was the cause of the accident and his minor daughter's resulting injuries, Mark Sharbeno, individually, and on behalf of his minor daughter, Brandy, filed suit against Allstate Insurance Company, Mr. Brittain's automobile liability insurance carrier; Safeway, his UM insurance carrier; Misty Brittain; and John Thomas Brittain, as administrator of the estate of his minor child, Kimberly Brittain.[2] In its answer, Safeway alleged that [14-670 La.App. 3 Cir. 2] Ms. Sharbeno was the driver of the Camaro at the time of the accident and was not entitled to recover under Safeway's UM policy.[3]

After a bench trial and taking the matter under advisement, the trial court issued Written Reasons for Judgment rejecting Safeway's allegations and ruled in favor of Ms. Sharbeno. The trial court labeled Safeway's evidence " circumstantial" and " suspect" ; whereas, it found Ms. Sharbeno's " testimony that she was a guest passenger in the vehicle at the time of the accident to be credible." After the signing of a formal judgment in favor of Ms. Sharbeno, Safeway perfected a suspensive appeal.

ASSIGNMENTS OF ERROR

On appeal, Safeway presents the following assignments of error:

1. The trial court committed manifest error when it failed to accept the uncontradicted testimony of an expert in accident reconstruction where there was no sound reason for rejecting the testimony and when the ...

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