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Pennison v. Carrol

Court of Appeal of Louisiana, First Circuit

April 24, 2015

BARRY PENNISON AND LORI PENNISON
v.
JAMES CARROL, JR., [1] FRISCO CONSTRUCTION COMPANY, INC., THE GRAY INSURANCE COMPANY AND GEICO GENERAL INSURANCE COMPANY

ON APPEAL FROM THE THIRTY-SECOND JUDICIAL DISTRICT COURT. NUMBER 162799, DIVISION " B," PARISH OF TERREBONNE, STATE OF LOUISIANA. HONORABLE JOHN R. WALKER, JUDGE.

AFFIRMED.

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Patrick H. Yancey, Houma, Louisiana and Michael J. Samanie, Stephen S. Stipelcovich, Houma, Louisiana and Lee A. Archer, Lake Charles, Louisiana, for Plaintiffs-Appellees, Barry Pennison and Lori Pennison.

S. Daniel Meeks, Nicholas J. Lorusso, Metairie, Louisiana and Barry J. Boudreaux, Houma, Louisiana for Defendants-Appellants, James Carrol Henry, Jr., Frisco, Construction Company, Inc., and The Gray Insurance Company.

BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ. Welch J. concur without reasons.

OPINION

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[2014 1098 La.App. 1 Cir. 1] CHUTZ, J.

[2014 1098 La.App. 1 Cir. 2] Defendants-appellants, James Carrol " T.J." Henry Jr., his employer, Frisco Construction Company (Frisco Construction), and their liability insurer, The Gray Insurance Company, appeal the trial court's judgment, incorporating the jury's verdict, which found Henry 100 percent at fault and awarded damages to plaintiffs-appellees, Barry and Lori Pennison, for the personal injuries they suffered when Barry was involved in a motorcycle accident. Defendants also appeal a partial summary judgment rendered by the trial court on the issue of Henry's fault but expressly reserved for the jury's determination the percentage, if any, of comparative fault for which Barry may have been responsible. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Barry sustained serious injuries when the 2007 Harley Davidson motorcycle he was riding south on La. Highway 57, Grand Calliou Road, in Terrebonne Parish crashed into a pick-up truck parked in the Frisco Construction industrial yard. The Pennisons filed this lawsuit averring that as Henry, who was driving a Frisco Construction 2009 Dodge 1500 Ram pick-up truck, attempted to turn left into the Frisco Construction yard, he crossed the centerline into Barry's lane of travel, causing Barry to leave the roadway and crash.[2]

After defendants answered the lawsuit and discovery was conducted, the Pennisons filed a motion for summary judgment, asserting Barry was free from fault and Henry was 100 percent at fault in causing the accident. The trial court agreed that Henry was at fault, but declined to address any apportionment of the percentage of fault attributable to him; or to conclude that Barry was not also comparatively at fault. Defendants' attempt to devolutively appeal the trial court's grant of partial summary judgment in favor of the Pennisons, finding that Henry was at fault in [2014 1098 La.App. 1 Cir. 3] causing the accident, was denied. In denying the order for devolutive appeal, the trial court wrote in longhand:

The court's ruling was not a final judgment nor designated as a final partial judgment. The court expressly reserved the apportionment of fault for the jury to decide in addition to ruling on other evidentiary issues. In addition,

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other evidentiary issues must be resolved prior to trial.

Defendants did not seek review of the trial court's denial of their devolutive appeal.

After additional discovery, the Pennisons filed another motion for summary judgment, this time contending entitlement to a finding that Barry was free from fault. The trial court denied the motion, and the matter proceeded to trial before the jury.

After a seven-day trial, the jury rendered a verdict in favor of the Pennisons. The jury found that Henry was a cause of the accident and Barry was not negligent; apportioned " 100%" fault to Henry and " 0%" to Barry; and awarded the Pennisons damages totaling $4,200,000.00.

On November 22, 2013, the trial court issued a judgment in conformity with the jury's verdict from which defendants have suspensively appealed. On appeal, defendants contend that the trial court erred as a matter of law when it granted a partial summary judgment on the issue of Henry's fault. Additionally, defendants challenge the trial court's awards of general damages, future medical expenses, and past and future loss of income to Barry, as well as the loss of consortium award to Lori.

PROPRIETY OF THE GRANT OF PARTIAL SUMMARY JUDGMENT

Maintaining that as part of an unbridled appeal of the trial court's final judgment they are permitted to challenge earlier interlocutory rulings, see Landry v. Leonard J. Chabert Med. Ctr., 2002-1559 (La.App. 1st Cir. 5/14/03), 858 So.2d 454, 461 n.4, writs denied, 2003-1748 and 2003-1752 (La. 10/17/03), 855 So.2d 761, [2014 1098 La.App. 1 Cir. 4] defendants assert that the trial court erred when it granted partial summary judgment on the issue of Henry's liability prior to the trial on the merits.

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. All Crane Rental of Georgia, Inc. v. Vincent, 2010-0116 (La.App. 1st Cir. 9/10/10), 47 So.3d 1024, 1027, writ denied, 2010-2227 (La. 11/19/10), 49 So.3d 387. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2).

In ruling on a motion for summary judgment, the trial court's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Gros v. Boisvert Farms, LLC, 2013-0016 (La.App. 1st Cir. 2/27/14), 142 So.3d 991, 995. The trial court cannot make credibility determinations, evaluate testimony, or weigh conflicting evidence in making a decision whether to grant or deny a motion for summary judgment. Pumphrey v. Harris, 2012-0405 (La.App. 1st Cir. 11/2/12), 111 So.3d 86, 91.

Defendants contend that this court's decisions in Tye v. Co-Mar Offshore Operators, Inc., 95-0094 (La.App. 1st Cir. 10/6/95), 669 So.2d 438, 440, writ denied, 96-1051 (La. 6/7/96), 674 So.2d 975 and Saba v. Hosp. Housekeeping Systems, Ltd., 2007-0916 (La.App. 1st Cir. 12/21/2007), 973 So.2d 181 (unpublished opinion), mandate a reversal of the trial court's imposition of liability. They suggest that as such, legal error has interdicted the fact finding process and, therefore, we must conduct a de novo review of the evidence.

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Citing the fourth circuit's decision in Williams v. City of New Orleans, 93-2043 (La.App.4th Cir. 5/17/94), 637 So.2d 1130, 1131-32, writ denied, 94-1587 (La. 10/7/94), 644 So.2d 632, [2014 1098 La.App. 1 Cir. 5] in a review of a trial court's grant of a partial summary judgment on the issue of res judicata, relying on an earlier version of La. C.C.P. art. 966, this court recognized that a partial summary judgment could be granted on the issue of liability alone when a genuine issue as to the amount of damages remained to be decided at a trial on the merits.[3] But the court held that a partial summary judgment could not be granted for purposes of determining a particular element of liability where such a determination was not completely dispositive of the question of liability between the parties concerning that claim and where other issues such as comparative fault remained unresolved. Tye, 669 So.2d at 440; accord Saba, 2007-0916 at p. 3.

Unlike the judgments under review in Tye and Saba, we review a challenge of the trial court's interlocutory ruling raised alongside defendants' appeal of the final judgment that resolved all issues between the parties, because defendant did not seek a review of the trial court's denial of their attempt to devolutively appeal the partial grant of summary judgment and did not apply for a supervisory writ. Instead, they chose to wait until the conclusion of the case to raise the alleged error in the trial court's interlocutory ruling. Where a partial summary judgment does not address all elements of liability, it is not a true final judgment but is one that was ostensibly improperly (untimely) rendered as opposed to one that was improperly (incorrectly) decided. See Williams, 637 So.2d at 1133.

Without regard to whether by granting the partial summary judgment before the trial on the merits the trial court untimely rendered judgment, preliminarily we review whether the grant of a partial summary judgment on the issue of defendants' [2014 1098 La.App. 1 Cir. 6] liability was incorrectly decided. In their motion for summary judgment, the Pennisons asserted that Henry was presumed at fault because the evidence they offered established that while maneuvering a left turn, he crossed over the center line into Barry's favored lane of travel. They contended that defendants could offer no evidence to the contrary.

The jurisprudence has established that a left turn is generally a dangerous maneuver which must not be undertaken until the turning motorist ascertains that the turn can be made in safety. A high degree of care is required of a left-turning motorist. A left-turning motorist involved in an accident is burdened with a presumption of liability, and the motorist must show that he is free of negligence. An on-coming motorist has a right to assume that a left-turning motorist will yield the right-of-way. Dakmak v. Baton Rouge City Police Dep't, 2012-1468 (La.App. 1st Cir. 9/4/14), 153 So.3d 498, 504.

On the showing made at the hearing on the motion for summary judgment, including the deposition testimony of Barry, Henry, Christopher " Red" Wilson, and Emile Hotard, Jr. (all of which was ...


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