Appealed from the Monroe City Court for the Parish of Ouachita, Louisiana. Trial Court Nos. 2012CV00684 and 2012CV00829. Honorable Larry D. Jefferson, Judge.
REVERSED AND RENDERED.
DAVENPORT, FILES & KELLY, By: W. David Hammett, Ethan A. Hunt, J. Heath Sullivan, for State Farm Automobile Ins. Co. and Eloise Square.
ANTHONY J. BRUSCATO, for Cheryl Baker and Brian Seymore.
KEVIN D. ALEXANDER, for Eloise Square.
Before WILLIAMS, STEWART and GARRETT, JJ.
[49,468 La.App. 2 Cir. 1] This is an action for damages arising out of an automobile accident that occurred on November 11, 2011. The defendants, State Farm Mutual Automobile Insurance Company (" State Farm" ) and Eloise Square (" Square" ), appeal a judgment in favor of the plaintiff, Cheryl Baker (" Baker" ). The trial court found that Square was 100% at fault for the automobile accident. Baker, individually, and on behalf of her minor son, was awarded $16,101.95 in damages. For the reasons set forth in this opinion, we find that Baker was negligent in causing this accident, and therefore, we reverse the judgment of the trial court.
FACTS AND PROCEDURAL BACKGROUND
This automobile accident occurred at approximately 7:00 p.m. on November 11, 2011, in Monroe, Louisiana. At this time, Square was traveling west on Winnsboro Road, while Baker, accompanied by her minor son, was traveling east on Winnsboro Road. The traffic light at the intersection of Winnsboro Road and Highway 165 was green for both directions of travel.
As Square proceeded through the intersection, Baker, who was attempting to turn left at the intersection onto Highway 165, collided into the driver's side of Square's vehicle. The collision occurred in Square's lane of travel, which was the right, or outside, lane. Baker was issued a traffic violation for an improper turn.
On March 13, 2012, Baker filed suit against Square and her insurer, State Farm. On March 26, 2012, Square filed suit against Baker and her insurer, USAgencies. These suits were consolidated on May 12, 2012, and [49,468 La.App. 2 Cir. 2] Square's suit was settled and dismissed on December 14, 2012. On March 10, 2013, Baker's suit proceeded to trial.
On June 25, 2013, the trial court found Square 100% at fault, and assessed damages in favor of Baker and her minor son in the total amount of $16,101.95. State Farm and Square (collectively referred to as " appellants" ) appeal.
LAW AND DISCUSSION
The appellants present seven issues on appeal (verbatim):
1. Whether the trial court erred by failing to apply the statutory presumption of fault pursuant to La. R.S. 32:122 and 32:104 against Baker as the left-turning motorist in this intersectional collision.
2. Whether the trial court erred in finding that Square was speeding, and at fault for this accident.
3. Whether the trial court erred in finding that Square saw Baker's vehicle making a left turn from a distance of 906 feet while near a used car lot.
4. Whether the trial court erred in finding the damage to Baker's vehicle was to the right, front passenger's side, and basing its determination of fault on such error.
5. Whether the trial court erred in failing to acknowledge the undisputed testimony of the investigating officer.
6. Whether the trial court erred in making a negative " credibility" judgment against Square for not returning to the courtroom after the first day of trial so that she could return to work.
7. Whether the trial court erred in failing to acknowledge Baker's admission of fault by paying the traffic ticket for an improper turn.
The bulk of the appellants' argument centers upon their assertions that the trial court erroneously failed to apply the statutory presumption of liability against Baker, the left-turning motorist, and that the trial court [49,468 La.App. 2 Cir. 3] erroneously found Square 100% at fault for the accident. In order for Baker to overcome the presumption of fault against her, she must prove, as the left turning motorist, that she was free from fault in the accident.
On review, an appellate court may not set aside the findings of fact by the trial court unless those findings are clearly wrong or manifestly erroneous. Smith v. Louisiana Dept. of Corrections, 93-1305 (La. 2/28/94), 633 So.2d 129; Stobart v. State through Dept. of Transp. & Development, 617 So.2d 880 (La. 1993); Rosell v. ESCO, 549 So.2d 840 (La. 1989); Amos v. Walker, 45,679 (La.App. 2d Cir. 11/3/10), 55 So.3d 129, writ denied, 2010-2664 (La. 1/28/11), 56 So.3d 960. An appellate court must not base its determination on whether it considers the trier of fact's conclusion to be right or wrong, but on whether the fact finder's conclusion was reasonable. Stobart, supra ; Amos, supra.
Pursuant to Watson v. State Farm Fire & Casualty Insurance Co., 469 So.2d 967 (La. 1985), the trier of fact will compare the relative fault of the parties in the assessment of liability. The amount of fault, if any, attributable to any party, and thus the apportionment of it is a question of fact to be decided by the trier of fact. Upchurch v. State ex rel. La. Dept. of Transp. & Dev., 48,354 (La.App. 2d Cir. 8/17/13), 123 So.3d 228, writ denied, 13-2153 (La. 11/22/13), 126 So.3d 489; Underwood v. Dunbar, 628 So.2d 211 (La.App. 2d Cir. 1993), writ denied, 94-0026 (La.2/25/94), 632 So.2d 767. A trier of fact's allocation of fault ...