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Larrea v. Cefalu

Court of Appeal of Louisiana, Fourth Circuit

March 25, 2015

MIGUEL P. LARREA
v.
JOHN CEFALU AND USAA CASUALTY INSURANCE COMPANY

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS, PARISH NO. 2012-01740, DIVISION " I-14" . Honorable Piper D. Griffin, Judge.

Michael R. Allweiss, Mark S. Goldstein, Alicia M. Bendana, LOWE STEIN HOFFMAN ALLWEISS & HAUVER, L.L.P., New Orleans, LA, COUNSEL FOR PLAINTIFF/APPELLEE.

Timothy G. Schafer, Rachel L. Flarity, SCHAFER & SCHAFER, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLANT.

Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins.

OPINION

Daniel L. Dys, Judge

Page 1225

[2014-0607 La.App. 4 Cir. 1] On February 23, 2014, a jury found defendant, John Cefalu, and his insurer, USAA Casualty Insurance Company, partially liable for the death of Piero Larrea, the son of plaintiff, Miguel Larrea. The jury awarded damages to the plaintiff, and assigned fault to Piero Larrea, John Cefalu and his insurer, and to an unknown hit and run driver who struck and killed Piero. The trial court accepted the jury's verdict and signed a judgment on March 12, 2014. The defendants have suspensively appealed the judgment, arguing that improper jury instructions resulted in the adverse verdict. Plaintiff has answered the appeal seeking a modification or reversal of the judgment with respect to the allocation of fault to the unknown third party. For the reasons that follow, we affirm the jury's verdict.

Page 1226

FACTUAL BACKGROUND:

On October 28, 2011, four young men, John Cefalu, John Faust, Stephen Vallette, and Piero Larrea, who were close friends since high school, and Samantha Morgan, a female companion of Vallette, drove from Slidell to New Orleans to celebrate John Cefalu's birthday. Testimony revealed that although they were driving Cefalu's vehicle, Larrea insisted on driving into the city. According to [2014-0607 La.App. 4 Cir. 2] Cefalu, Larrea wanted Cefalu to be able to drink alcohol and have a good time for his birthday.

The group began their evening at Pat O'Brien's in the French Quarter. Although the testimony varied as to exactly what took place during the approximately three hours at Pat O'Brien's, the consensus was that the group waited in the side bar for a table in the piano bar. After about a half hour, the group gathered at two tables in the piano bar. By this time, four other young ladies, one of whom Cefalu identified as someone he was dating, joined the group. Cefalu admitted to drinking two beers while at Pat O'Brien's. Testimony indicated that John Faust drank three beers during the evening, but that Larrea, Vallette, and Morgan drank more heavily.

The group left Pat O'Brien's around midnight and walked to a club in Jax Brewery. No one was visibly intoxicated at that point. The group went to the second floor of the club, where Cefalu and his friend, Jessica, and Vallette and Morgan danced. Larrea bought " red" shots and was passing them amongst the group. Cefalu and Faust testified that they did not drink anything other than soft drinks at the club. Cefalu testified that he did not drink for several reasons: he realized he would have to drive home and he had to get up early the next morning; also, Cefalu was planning to apply to medical school and knew that a DWI would hamper his chances of being admitted. Faust testified that he did not drink in excess because he suffers from Crohn's disease.

After a couple of hours, Larrea got into a confrontation with another man when Larrea began dancing with the man's date. The other man was trying to get his friends to help him fight with Larrea, but Cefalu and Vallette pulled Larrea away and took him downstairs. Cefalu decided it was time to go home and told the [2014-0607 La.App. 4 Cir. 3] others to meet him at his car; he accompanied Jessica to her car, then drove it back to Jax Brewery to pick up Jessica's friend who was intoxicated.

According to Vallette and Faust, Larrea was angry that his friends did not " have his back," and would not help him fight the man in the club. When they got in the car, Cefalu was the driver, Faust was in the passenger seat, Larrea was in the back seat behind Cefalu, Vallette was in the middle and Morgan was in the seat behind Faust. As they started for home, everyone was relatively calm; however, once they entered the interstate, Larrea began " acting up." When Vallette attempted to hand a $20 bill to Faust in the front seat, Larrea grabbed it and it tore in half. He then began shoving and elbowing Vallette, who pushed back. Cefalu yelled at them both to calm down, which they did for a distance. Larrea began insisting that Cefalu stop the car to allow Larrea and Vallette to get out and fight. Morgan was struck in the face by either Vallette or Larrea and was crying. At some point before they reached the New Orleans East area, Cefalu was talking on the phone with a female friend, Lisa Loyacano. Ms. Loyacano testified at trial that she could hear Larrea yelling over the phone. Larrea continued to be disruptive and several times grabbed Cefalu's arms causing the car to swerve on the interstate. Cefalu threatened Larrea several times with putting him out, which only made Larrea

Page 1227

more angry and belligerant. As the car was approaching the Irish Bayou exit, Larrea again grabbed Cefalu's arms, causing the car to swerve onto the grassy area on the side of the road. Cefalu was able to gain control and get back to the emergency lane. At that point, he made the decision to make Larrea get out of the car. He pulled over to the emergency lane, told Larrea to get out, which he did, slamming the door and cursing the others. He then walked behind the car into the grassy area on the side of the road as Cefalu drove away.

[2014-0607 La.App. 4 Cir. 4] On the way to Cefalu's house, Vallette called and texted Larrea repeatedly, but he did not respond. Cefalu testified that he presumed Larrea either would not answer because he was mad, or he had called his brother to pick him up. Cefalu dropped Faust off at his house, and proceeded home with Vallette and Morgan.

Sometime after 4 a.m., Larrea was struck and killed by an unknown hit and run driver not far from the spot where he got out of Cefalu's car. Early the next morning, Cefalu told his parents what had happened on the way home just hours earlier. As his mother drove to work that morning, she saw the police and emergency vehicles on the eastbound lanes of the interstate. She doubled back to the scene and discovered that Larrea had been killed. She called home and told her husband what had happened. Cefalu, Vallette and Morgan all went to the scene and gave statements to the police.

After an investigation, the police determined that the vehicle which struck and killed Larrea was a Mitsubishi Montero, either a 2006 or 2007 model. Neither the driver nor the vehicle was ever found, despite Larrea's mother offering a $5000 reward for information. An autopsy determined that Larrea had a blood alcohol content of .16, which is double the legal limit.

PROCEDURAL BACKGROUND:

Following three days of testimony, the jury heard closing arguments, was charged with instructions by the trial judge, and retired to deliberate. The jury awarded $317,000 to plaintiff. It found the decedent, Piero Larrea, 54% at fault for his own death, John Cefalu 28% at fault, and the hit and run driver 18% at fault. The jury did not find that John Cefalu was intoxicated at the time of the incident. On March 12, 2014, the trial court signed a judgment making the jury verdict the judgment of the court. Defendants filed a suspensive appeal, and plaintiff [2014-0607 La.App. 4 Cir. 5] answered the appeal, also seeking modification or reversal of the verdict. Each side claims that improper jury instructions given by the trial court tainted the jury's verdict.

DISCUSSION:

All assignments of error by defendants in their appeal and plaintiff in his answer to appeal are related to improper or inadequate jury instructions given by the trial court. Louisiana Code of Civil Procedure art. 1792 instructs, in part:

B. After the trial of the case and the presentation of all the evidence and arguments, the court shall instruct the jurors on the law applicable to the cause submitted to them. The court shall reduce such instructions to writing....

In Wooley v. Lucksinger, 09-0571 (La. 4/1/11), 61 So.3d 507, the Supreme Court discussed extensively the law relative to jury charges.

La. C.C.P. art. 1792(B) requires a district judge to instruct the jury on the law applicable to the cause submitted to them. " The trial court is responsible for reducing the possibility of confusing the jury and may exercise the right to decide what law is applicable and what law the trial court deems inappropriate." Adams v. ...

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