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APPEALED FROM THE THIRTY-SECOND JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF TERREBONNE STATE OF LOUISIANA. DOCKET NUMBER 157962, DIVISION B. HONORABLE JOHN R. WALKER, JUDGE.
J. Michael Daly, Jr., Bradford H. Walker, Daniel Hynes, Metairie, Louisiana, for Defendants/Appellants/Cross Appellees, Cajun Cutters, Inc. and Russell Felio.
Darryl J. Carimi, Mandeville, Louisiana, for Plaintiff/Appellee/Cross Appellant, Westley Bourg.
Katherine M. Loos, Lafayette, Louisiana, for Intervenor/Appellee/Cross Appellant, Louisiana Oilfield Contractors' Association.
BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ. McDonald, J. agrees in part and dissent in part with reason.
[2014 CA 0210 La.App. 1 Cir. 2]
In this personal injury case, the plaintiff, a shop employee of an oilfield services company, filed suit against the defendants, an equipment fabricator and its forklift operator, for injuries the plaintiff sustained when a generator cover being delivered by the forklift operator tipped over and fell on plaintiff's foot. After a trial, the jury returned a verdict assessing 90% fault to the plaintiff and his employer and 10% fault to the defendants, and awarded special and general damages. On plaintiff's motion, the trial court granted, in part, a judgment notwithstanding the verdict (JNOV), and reapportioned fault, finding that the plaintiff and his employer were 50% at fault, and the defendants were 50% at fault, in causing the plaintiff's injuries.
The defendants appeal the trial court's entry of the JNOV. The plaintiff answered the appeal seeking an increase in general damages and an allocation of 100% fault to the defendants. The intervenor, the workers' compensation insurer for the oilfield services company, also answered the appeal, asserting the same challenges made by the plaintiff. We reverse the partial grant of JNOV, reinstate the jury verdict, and affirm in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
Shamrock Management, L.L.C. is an oilfield services company located in Houma, Louisiana. In 2009, Shamrock's business included the manufacture of generator systems for use in the oilfield industry. Cajun Cutters, Inc., a machinery and fabrication business, was located across the street from Shamrock. The two businesses had a longstanding business relationship of approximately fifteen years, and Cajun Cutters often fabricated pieces of equipment for Shamrock.
In early 2009, Shamrock was assembling a large generator package, which consisted of a steel skid base supporting an engine, generator, and a custom built aluminum cover that fit over the top. The rectangular generator cover was [2014 CA 0210 La.App. 1 Cir. 3] approximately 7 feet wide by 9 feet tall by 16 feet long, and weighed 2,800 pounds. Although Cajun had not fabricated this particular generator cover, Shamrock had issued a purchase order for Cajun to paint the generator cover.
Cajun's usual practice was to deliver items ordered by Shamrock to Shamrock's shop. On this occasion Cajun contends that it agreed to deliver the generator cover to Shamrock on February 12, 2009, but that on February 11, 2009, Rene " Bubba" Himel, Jr., a Shamrock manager, went to the Cajun shop and " told" Russel Felio, a Cajun painter, to deliver the generator cover when the paint dried. At trial, Himel did not remember who he told to make the delivery on February 11 and denied that the delivery was planned for the next day.
On February 11, Felio, a certified forklift operator, used a small forklift to deliver two pallets holding the doors and windows for the generator cover to the Shamrock shop. Later that day and without any authorization from a Cajun supervisor, Felio attempted to deliver the generator cover to Shamrock's shop using a larger Hyster forklift that he was not authorized to use. The plaintiff, Westley
Bourg, a recently-hired Shamrock employee, laid down multiple 4 foot by 4 foot timbers near the shop entrance to create a base for the placement of the generator cover. As the forklift driven by Felio approached the Shamrock shop entrance, Himel and John Paul Chaisson, another Shamrock manager, guided him up a ramp leading into the Shamrock shop, while Bourg acted as a spotter. After the generator cover was set on the timbers, Felio began to back the forklift from under the generator cover and down the ramp. As he did so, the forks on the forklift began to drag, then caught the edge of the generator cover and flipped it onto its side, crushing Bourg's left foot. Bourg ultimately underwent two surgeries to repair the injuries to his foot.
Bourg filed this suit against Felio and Cajun, alleging negligence by both and the vicarious liability of Felio's employer, Cajun. The defendants answered [2014 CA 0210 La.App. 1 Cir. 4] the suit contending Bourg was solely or comparatively at fault in causing his injury, and further contending that Bourg and Felio were statutory co-employees, limiting Bourg's recovery to workers' compensation benefits. The workers' compensation insurer for Shamrock, Louisiana Oilfield Contractors Association (LOCA), filed a petition of intervention seeking subrogation to Bourg's rights for past and future workers' compensation payments for Bourg.
Bourg's suit proceeded to a jury trial in August 2012. The jury determined that the negligence of Bourg, Shamrock, Felio, and Cajun caused the accident. The jury apportioned 90% fault to " Shamrock Management, LLC (including Westley Bourg)" and 10% fault to Cajun and Felio. The jury also awarded Bourg special and general damages totaling $1,937,242.20. On September 20, 2012, the trial court signed a judgment in accordance with the jury's verdict in favor of Bourg and LOCA and against the defendants, in solido, in the amount of $193,724.22. The judgment deferred the determination and assessment of court costs, as well as other amounts owed to LOCA, to a hearing on a later date.
Bourg filed a motion for judgment notwithstanding the verdict and for new trial, arguing that Cajun wks 100% at fault and that he was entitled to $2 million in general damages. Bourg also filed a motion to assess costs and stated that his litigation costs totaled $59,792.88. The defendants opposed Bourg's motion for JNOV and new trial and filed their own motion to determine costs. LOCA filed a motion for JNOV and new trial for the same reasons asserted by Bourg.
After a hearing, the trial court signed a judgment on January 7, 2013: (1) denying Bourg's and LOCA's motions for new trial; (2) granting in part, and denying in part, Bourg's motion for JNOV; (3) reallocating the jury's [2014 CA 0210 La.App. 1 Cir. 5] apportionment of fault to 50% fault to Bourg and Shamrock and 50% fault to Felio and Cajun; (4) denying an increase in general damages; (5) rendering judgment in favor of Bourg and LOCA, and against the defendants, in solido, for $1,937,242.20, plus legal interest from the date of judicial demand, until paid, and noting that the apportionment of the award would be by separate judgment; 
(6) granting Bourg's motion to assess costs in the amount of $59,792.88, plus any additional costs incurred by Bourg after September 15, 2012; (7) assessing 70% of costs to the defendants, 10% to LOCA to be paid to Bourg, and 20% to Bourg.
The defendants suspensively appealed seeking reinstatement of the jury's verdict and challenging the trial court's assessment of costs. Bourg answered the appeal challenging the assessments of fault by both the trial court and the jury, challenging the jury's general damage award, and challenging the trial court's assessment of costs. LOCA answered the appeal asserting the same challenges made by Bourg.
JUDGMENT NOTWITHSTANDING THE VERDICT
A JNOV is a procedural device authorized by Louisiana Code of Civil Procedure article 1811, by which the trial court may correct an erroneous jury verdict by modifying the jury's finding of fault or damages, or both. Marroy v. Hertzak, 11-0403 (La.App. 1 Cir. 9/14/11), 77 So.3d 307, 316. Article 1811 does not set out the criteria to be used when deciding a motion for JNOV. Wood v. Humphries, 11-2161 (La.App. 1 Cir. 10/9/12), 103 So.3d 1105, 1110, writ denied, [2014 CA 0210 La.App. 1 Cir. 6] 12-2712 (La. 2/22/13), 108 So.3d 769. However, the Louisiana Supreme Court has established the following standard:
[A] JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover, The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. This rigorous standard is based upon the principle that " [w]hen there is a jury, the jury is the trier of fact."
Joseph v. Broussard Rice Mill, Inc., 00-0628 (La. 10/30/00), 772 So.2d 94, 99 (citations omitted).
An appellate court reviewing a trial court's grant of a JNOV employs the same criteria used by the trial court in deciding whether to grant the motion. See Smith v. State, Department of Transportation and Development, 04-1317 (La. 3/11/05), 899 So.2d 516, 525. In other words, the appellate court must determine whether the facts and inferences adduced at trial point so overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary finding of
fact. Id. If the answer is in the affirmative, then the appellate court must affirm the grant of the JNOV. Id. However, if the appellate court determines that reasonable minds could differ on that finding, then the trial court erred in granting the JNOV, and the jury verdict should be reinstated. Id.
Therefore, our initial inquiry in this case is: did the evidence overwhelmingly support a finding that reasonable jurors could not have apportioned 90% of fault to Bourg and Shamrock and 10% of fault to Felio and Cajun? If so, then the trial court was correct in granting the JNOV, and we must then conduct a manifest error review of the trial court's independent apportionment [2014 CA 0210 La.App. 1 Cir. 7] of fault. See Granger v. United Home Health Care, 13-0910 (La.App. 1 Cir. 6/19/14), 145 So.3d 1071, 1077-78; Gutierrez v. Louisiana Department of Transportation and Development, 11-1774 (La.App. 1 Cir. 3/23/12), 92 So.3d 380, 386, writ denied, 12-1237 (La. 9/21/12), 98 So.3d 343. If, however, reasonable jurors in the exercise of impartial judgment could reach the conclusion that Bourg and Shamrock and Felio and Cajun were at fault as apportioned by the jury, then the trial court erred in granting the JNOV and the jury's verdict should be reinstated. See Granger, 145 So.3d at 1078; Gutierrez, 92 So.3d at 386. We perform our appellate review under the same rigorous standards that governed the trial court's determination of whether a JNOV was warranted, without evaluating the credibility of witnesses, and resolving all reasonable inferences or factual questions in favor of the non-moving parties, Felio and Cajun. See Granger, 145 So.3d at 1078; Gutierrez, 92 So.3d at 385-86.
In negligence cases, Louisiana courts have adopted a duty-risk analysis to determine whether liability exists under the facts of a particular case. Under this analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care; (2) the defendant failed to conform his or her conduct to the appropriate standard of care; (3) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries; (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries; and (5) actual damages. Brewer v. J.B. Hunt Transport, Inc., 09-1408 (La. 3/16/10), 35 So.3d 230, 240. However, when a defendant claims that a plaintiff is comparatively at fault in pausing his damages, the defendant bears the burden of showing not only the plaintiff's fault, but the ...