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Smith v. Thomas

Court of Appeals of Louisiana, Second Circuit

January 25, 2017

FRAN SMITH, ET AL. Plaintiff-Appellee

         Appealed from the Fourth Judicial District for the Parish of Ouachita, Louisiana Trial Court No. 13-0507 Honorable Benjamin Jones, Judge

          K. DOUGLAS WHEELER Counsel for Appellant Robert Thomas

          DAVENPORT, FILES & KELLY, L.L.P. By: M. Shane Craighead Counsel for Appellant State Farm Mutual Automobile Insurance Co.

          BREITHAUPT, DUNN, DUBOS, SHAFTO & WOLLESON, LLC Counsel for Appellees Kelise Smith, Fran Smith By: R. Alan Breithaupt and Troy Smith James R. Close

          HUDSON, POTTS & BERNSTEIN e By: Jay P. Adams Counsel for Appelle Direct General Insurance Co.Sara G. White

          Before BROWN, DREW and GARRETT, JJ.

          DREW, J.

         After a 2012 auto-pedestrian accident, the plaintiffs brought this lawsuit seeking damages for personal injuries, including Lejeune[1] damages, against the defendants. After various settlements and dismissals, the case went to a bench trial, where the remaining issues were the fault of the driver, whether Lejeune damages were proven, and the primary insurer's responsibility for the Lejeune damages. The trial court found the driver to be solely at fault for the accident and that the bystander suffered Lejeune damages, and concluded that the driver's insurer had to pay the Lejeune damages. The driver and insurer appeal; we affirm.


         Just after 7:00 p.m. on February 19, 2012, Fran Smith and her 14-year-old daughter Kelise were walking home from church southbound along the west side of University Avenue in Monroe. This two-lane road does not have a sidewalk or a paved shoulder; instead, the area beyond the edge of the paved road is a mixture of gravel and grass. The grassy shoulder is sloped downward from the road toward a drainage culvert. The Smiths, who had walked along this road many times before, were walking single file with Kelise in front of Fran, but they were close enough to each other to carry on a conversation. Because they were on the west side of the road, the traffic nearest them approached them from behind. This area is unlit by streetlights.

         Robert Thomas, driving a 2000 Toyota Camry, was driving southbound on University Avenue at the same time. When he reached the Smiths, the right side of the Camry struck Fran Smith, throwing her into the ditch and knocking her briefly unconscious. Kelise ran to her mother's side and observed that she was not responsive and appeared to be foaming at the mouth.

         In the meantime, Thomas stopped his car on the other side of the road. Kelise approached Thomas and screamed and cursed at him, believing that he had killed her mother.

         Police and EMS responded to the scene. Smith had regained consciousness and had serious cuts on her head and hand; she spent at least one night in the hospital.

         Monroe PD Officer James Varnell investigated the accident and spoke with the parties. His report[2] states, in part:

[Mr. Thomas] stated he was southbound on University when [Fran Smith] suddenly appeared walking southbound on the edge of the roadway. Driver stated he then struck the pedestrian. I then spoke with the pedestrian's daughter, Kelise Smith, who stated she and her mother Fran Smith were walking southbound on University on the right hand side of the road when Fran was struck from the rear by vehicle 1. Kelise added that Fran was thrown into the air and she landed approximately 20 feet from the impact site.

         The officer did not issue either party a citation as a result of the crash.

         In February 2013, Fran Smith and her husband, Troy, filed suit individually and on behalf of the then-minor Kelise, against:

• Robert Thomas, the driver;
• Cheryl Huey, the owner of the Camry;
• State Farm Mutual Automobile Insurance Company ("State Farm"), the liability insurer for the Camry;
• Direct General Insurance Agency, with whom the Smiths had a liability policy with UM coverage; and
• Financial Indemnity Company, with whom the Smiths also had a liability policy with UM coverage.

         Their petition alleged that Fran and Kelise were walking on the shoulder and the accident occurred when Thomas veered off of the road onto the shoulder and hit Fran. In its answer, State Farm denied that the ladies were walking on the shoulder and asserted that they were walking on the roadway.

         In March 2014, the plaintiffs settled their claim against Thomas, Huey, and State Farm, reserving Kelise's Lejeune claim against these defendants.[3] Thomas' policy with State Farm had 15/30 limits, and State Farm paid the plaintiffs $15, 000. Thereafter, State Farm sought summary judgment on Kelise's Lejeune claim. The insurer did not argue that its policy provided no coverage for Lejeune claims. Instead, the insurer urged that the settlement payment of $15, 000 had exhausted the "per person" limit of Thomas' policy and Kelise's Lejeune claim did not trigger the remaining "per accident" limit because she suffered no physical injury during the crash. State Farm relied on the language of its policy, which provides:

The limit shown under "Each Person" is the most we will pay for all damages resulting from bodily injury to any one person injured in any one accident, including all damages sustained by other persons as a result of that bodily injury. The limit shown under "Each Accident" is the most we will pay, subject to the limit for "Each Person", for all damages resulting from bodily injury to two or more persons injured in the same accident.
[Bodily injury is] physical bodily injury to a person and sickness, disease, or death that results from it.

Emphasis in original.

         State Farm argued that Kelise's Lejeune claim was not the result of "physical" bodily injury because Thomas' car did not strike Kelise in the accident. In opposition, plaintiffs urged that material facts remained in dispute and the Lejeune claim was a direct result of the accident and not derivative of another's claim, so jurisprudence on derivative claims limiting per accident recovery was inapplicable. That motion was heard and denied by the trial court in August 2014, and this Court denied writs.[4]

         The case went to trial in October 2015; there were four live witnesses: Troy, Fran and Kelise Smith, and Robert Thomas.

         Robert Thomas testified:

• He was driving the 2000 Toyota Camry southbound on University Avenue on the night of the crash;
• There were two vehicles in front of him. The first was driven by his sister-in-law, who was now deceased, and the second was a work truck driven by an unknown person;
• He was following the work truck closely, approximately a car length behind it, driving in the middle of the lane, going about 20 mph;
• He was familiar with the road and drives it routinely because he lives nearby;
• He had seen pedestrians in the area before as there was a city bus stop nearby, and his wife had previously walked on the shoulder of University Avenue to get to the college;
• It was dark, but not pitch dark, at the time of the accident, but there were no street lights;
• He did not see Fran Smith before hitting her, and initially after hearing the sound of the impact, he did not know that his car had hit a person;
• The work truck in front of him did not have to swerve to miss Fran Smith, nor did the car driven by his sister-in-law;
• He did not swerve, run off of the road, or cross the white fog line before hitting Fran Smith;
• Two parts of the Camry hit Fran Smith: the right front and the passenger side mirror, and the impact broke the blinker lens and the right side mirror off of the car;
• After the crash, Fran Smith was lying in a ditch just south of a driveway;
• Fran was wearing grey and black clothing;
• After he stopped his car, Kelise came over to him, screaming and cursing at him saying that he had killed her mother;
• He told the investigating officer that he never saw Fran Smith before hitting her; and
• He believed that the impact happened while Fran and Kelise were standing on the driveway near where Fran was thrown, but he did not run off the road onto the driveway.

         Troy Smith testified:

• He is Fran Smith's husband;
• At the time of the accident, they lived on University Avenue, and he was at home;
• He became aware of the accident when Kelise called him, and he said that Kelise was "screaming" and "frantic, " so he drove to the scene;
• He beat the paramedics to the scene, where he saw Fran lying on her back, semiconscious, "foaming and just mumbling a little bit, " and Kelise was "crying, " "hysterical" and "all over the place";
• Fran was on the driveway, not in the ditch;
• During the ride to the hospital, Kelise continued to cry, was "praying and just upset, " and Fran spent at least two nights in the hospital;
• Kelise missed one or two days of school because of the accident, and continued to make As and Bs, but quit the dance team because of the accident;
• After the accident, Kelise "wasn't herself, " and "just wanted to be alone or with Fran" instead of her friends, so Troy asked his brother-in-law, Reverend Alonzo Clark, to counsel Kelise;
• The family did not send Kelise for professional counseling because "I really didn't understand it" and because they did not have the finances to do that;
• Kelise "didn't really want to talk" about the accident and didn't tell him any details, and she would just "shut down"; and
• About six months after the accident, the family moved to Texas for work, and Kelise was continuing to have problems related to the accident.

         Fran Smith testified:

• At the time of the accident, the family lived on University Avenue;
• She had no recollection of the actual impact;
• Prior to the accident, she and Kelise had been at church and were hurrying home so she could go for a walk before it became dark;
• Kelise was walking in front of her to the right of University Avenue;
• They were never at any time walking "in the lane of traffic or in the roadway, " because "when Kelise and I started out, I said 'make sure you get on the side.' And she say, 'you always say that, mama.' And we laughed about it, you know";
• Although there are no shoulders beside University Avenue, "there is room to walk off where we walk. There is room to walk off of the road on the dirt, on the grass";
• She was wearing a grey sweater, black sweat pants, and black shoes with orange reflectors;
• She didn't recall how long she spent in the hospital, and said that Kelise missed one day of school;
• After the accident, Kelise became "distant" and "[s]he wasn't sparkle. She ... wanted to be by herself in her room. She didn't want to be active. Kelise was always active in school. She was getting the - her eighth grade year was getting ready to be over with and we had already discussed her going to try out for cheerleader when she entered into the ninth grade. She didn't want to do any - any of that anymore." ... "[S]he just wasn't my Kelise. She was just shutting down, and I could see it. I knew that the experience of her seeing me being hit by a car was devastating to her. But I just -1 thought that that - you know, it was going to take time. But she didn't even want to discuss to me my - the state I was in when I was hit by the car";
• Kelise would cry and sob around Fran but didn't want to talk about the incident, and Kelise began to have bad dreams that led her to have her mother sleep in the room with her, and that these incidents still continued, "even now, " though Kelise was now 18;
• Kelise "didn't want anything to do with her friends" after the accident;
• Kelise maintained her A and B average grades, but did not want to participate in the school dance team the year after the accident; and
• Kelise did not see a medical professional about her issues but was counseled by the associate pastor at their church and the school counselor at her high school was made aware of the issue.

         Kelise Smith testified:

• She was 14 at the time of the accident;
• She was walking in front of her mother "on the gravel" on the side of University Avenue;
• They had walked on this road on multiple occasions before. Kelise said that a recent picture[5] of the area taken in 2015 did not accurately depict the shoulder of the road as it was in 2012 because in the recent photo, "the right side of the fog line, it's like - it's not as much - it's gone, like the grass and all that, it's gone more. In 2012, it was more room to walk, more grass and gravel";
• Her mother was behind her but within arm's reach, and they were talking as they walked, and Kelise was looking forward, not toward her mother;
• She was walking off of the roadway, on the opposite side of the white fog line, and was sure that her mother was also because "she always walked on the gravel and the grass";
• Describing the accident: "Well, there was a car and it was - it came out of nowhere. And it was like somebody had jumped out of the window. And I had turned around to grab my mom and she wasn't there, so I figured like that must have been my mom, like, getting hit. So I ran to the person that was laying on the ground. And that's when I knew it was my mom";
• She could not say that Thomas veered off of the road at the time of the crash because she was not looking backward;
• When Kelise went to her mother, Fran "was unconscious and she was ... foaming at the mouth. And she was shaking. And I was trying to calm her down and like wake her up and she wasn't coming to." "She had a big gash on the top of her head. And she had a scar on her hand. It was a bad cut. And she was bleeding";
• Kelise initially thought that her mother was dead;
• She screamed and cursed at Thomas, something she had never done before, because she thought he had killed her mother, but later apologized ...

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