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Greene v. Lovisa

Court of Appeals of Louisiana, Fifth Circuit

May 17, 2017

BRIDGET ARLIE GREENE
v.
MARK GERARD LOVISA, THE SOUTHERN ASSOCIATION OF STATE DEPARTMENTS OF AGRICULTURE, INC., THE STATE OF LOUISIANA AND THE DEPARTMENT OF AGRICULTURE IVAN AND DESIREE HUERTA
v.
MARK GERARD LOVISA AND STATE OF LOUISIANA THROUGH THE DEPARTMENT OF AGRICULTURE AND FORESTRY

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 726-691 C/W 727-529, DIVISION "O" HONORABLE DANYELLE M. TAYLOR, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, BRIDGET ARLIE GREENE Robert J. Caluda

          COUNSEL FOR DEFENDANT/APPELLANT, MARK GERARD LOVISA AND THE STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF AGRICULTURE AND FORESTRY Valerie E. Fontenot Jeffrey M. Landry Gerald Hampton, Jr. Thomas M. Brahney

          Panel composed of Susan M. Chehardy, Robert M. Murphy, and Stephen J. Windhorst

          SUSAN M. CHEHARDY CHIEF JUDGE

         In this personal injury action arising out of an automobile collision, defendants, the State of Louisiana and Mark Gerard Lovisa, appeal the district court's March 3, 2016 judgment granting a directed verdict on the issue of liability in favor of plaintiff, Bridget Arlie Greene, and the court's May 25, 2016 judgment awarding damages. For the reasons that follow, we reverse the May 3, 2016 judgment, vacate the May 25, 2016 judgment, and remand the matter for a new trial.

         PROCEDURAL HISTORY

         On January 11, 2013, Bridget Arlie Greene was driving on Clearview Parkway in Jefferson Parish when she was rear-ended by a pickup truck owned by the Louisiana Department of Agriculture and Forestry and driven by Mark Gerard Lovisa, a department employee. In turn, Ms. Greene's vehicle rear-ended the vehicle in front of her driven by Ivan Huerta. Both Ms. Greene and Mr. Huerta sustained injuries.

         On May 6, 2013, Ms. Greene filed a petition seeking damages for her injuries against Mr. Lovisa and the State of Louisiana through its Department of Agriculture and Forestry ("the State").[1] On June 3, 2013, Mr. and Mrs. Huerta likewise filed a petition against these defendants seeking damages for injuries sustained as a result of the collision.[2] These two suits were consolidated in October 2013.

         The matter proceeded to a jury trial on February 29, 2016. After the close of evidence on March 3, 2016, both Ms. Greene and defendants orally moved for directed verdicts on the issue of liability. After a brief recess, the court granted Ms. Greene's motion and denied defendants' in open court. Defense counsel objected.

         The issue of damages proceeded to the jury. The jury was tasked with resolving two questions. First, "Was the negligence of Mark Gerard Lovisa a proximate cause of Bridget Arlie Greene's injuries?" The jury answered yes. And second, "[I]n terms of dollars, how much in damages, if any, did Bridget Arlie Greene suffer as a result of this accident?" The jury was instructed to "state what sum of money, if any, would reasonably and fairly compensate Bridget Greene for each category of damages listed below." The jury made the following findings: Past and future physical pain and suffering, $400, 000; past and future mental pain and suffering, $400, 000; past medical expenses, $520, 875.66; future medical expenses, $310, 000; loss of past earnings, $55, 828; future earning capacity, $626, 642; and loss of enjoyment of life, $200, 000. This totaled $2, 513, 345.66.

         In the written judgment that followed on March 24, 2016, the court, pursuant to La. R.S. 13:5106(B)(1), reduced the jury's award for the three categories of past and future physical pain and suffering, past and future mental pain and suffering, and loss of enjoyment of life from $1, 000, 000 to the statutory maximum of $500, 000. This reduced the total award to $2, 013, 345.66, which the court adopted as its judgment. The court also ordered the award of future medical expenses ($310, 000) to be paid from the Future Medical Care Fund in accordance with La. R.S. 39:1533.2, with medical care and related benefits to be paid directly to the provider as they are incurred pursuant to La. R.S. 13:5106(B)(3)(c). And the court assessed costs against defendants, to be determined in accordance with La. R.S. 13:5112(B).

         On April 1, 2016, Ms. Greene filed a motion for new trial and/or judgment notwithstanding the verdict, seeking an award of judicial interest from date of judicial demand. That same date, defendants also filed a motion for new trial, arguing the court's judgment of March 24, 2016 was contrary to the law and evidence. Following a hearing on these motions, the court rendered judgment on May 25, 2016, in which the court granted in part Ms. Greene's motion for new trial/JNOV to amend the judgment to award judicial interest pursuant to La. R.S. 13:5112, denied defendants' motion for new trial, and assessed costs in the amount of $21, 192.65.[3] Also on May 25, 2016, the court issued its amended judgment in which the court deducted the amount of the award of future medical expenses ($310, 000) from the jury's award, as previously amended, to yield a total award of $1, 703, 345.66. The court further ordered legal interest to accrue at 6% per annum from the date service is requested following judicial demand until the judgment is signed, plus legal interest accruing at the rate fixed by La. R.S. 13:4202 from the date of the judgment until paid, plus costs assessed in the amount of $21, 192.65.

         FACTS[4]

         Mark Gerard Lovisa has been employed by the Louisiana Department of Agriculture and Forestry as a weights and measures inspector since 2010. In this position, which requires a lot of travel, Mr. Lovisa estimates that he spends at least half of every day in his state vehicle, a 2007 Dodge Ram 2500 pickup truck. Mr. Lovisa was driving this vehicle when the collision occurred on January 11, 2013; and it was not disputed that he was employed by the State and was acting within the course and scope of his employment at the time of the collision.

         According to Mr. Lovisa, the streets were wet from a rainstorm earlier that day. He was driving southbound on Clearview Parkway in the left lane and was approaching a red light at the intersection with Veterans Boulevard. He "was keeping a good distance" from the Nissan Pathfinder directly in front of him. As the traffic slowed at the red light, the Pathfinder slowed, and so did Mr. Lovisa. At the time he began to brake, he approximated he was traveling 35 miles per hour, "maybe less, " and was "maybe five or six truck lengths" behind the Pathfinder. When he observed the Pathfinder come to a complete stop, Mr. Lovisa estimated he had decelerated to about 10 or 15 miles per hour. At this moment, Ms. Greene merged into the lane about one-and-a-half to two truck lengths in front of Mr. Lovisa and two to three truck lengths behind the Pathfinder. Mr. Lovisa "slammed" on his brakes and skidded into the back of Ms. Greene's vehicle, a 2012 Suzuki SX4. He explained "a few seconds" lapsed between her entering the lane and the collision.

         Ms. Greene described the collision differently. She testified that she was driving southbound on Clearview Parkway in the right lane when she realized she needed to get into the left lane to make a left turn onto Veterans Boulevard. She flipped on her left blinker and looked to her left, where she saw Mr. Lovisa in the left lane. She made eye contact with him, waved at him, and pointed to the left lane, asking if he she could merge into the lane. She saw him nod his head affirmatively. Mr. Lovisa denied that he made eye contact with Ms. Greene or that he gestured for her to merge into his lane. But, according to Ms. Greene, Mr. Lovisa stopped to permit her to merge. She did, traveled three or four blocks, heard the squealing of tires, and was impacted from behind by Mr. Lovisa. This forced her into the rear of Mr. Huerta. She experienced whiplash from both impacts, though the initial one was more forceful. She immediately felt pain in her collarbone from the impact against her seat belt. She also had pain in her wrist and neck, and was experiencing shortness of breath. An ambulance was called and transported her to the emergency room at East Jefferson General Hospital. Ms. Greene testified that Mr. Lovisa apologized for rear-ending her, but Mr. Lovisa denied this.

         Mr. Huerta testified that he was stopped at the red light when he heard squealing and a collision before he was impacted from behind. He experienced whiplash and sustained injuries to his neck and lower back.

         Ms. Greene's fiancé, [5] Michael Perdue, arrived at the scene. After checking on her, he spoke with Mr. Lovisa, who described the collision to him. According to Mr. Perdue, Mr. Lovisa stated that he waved Ms. Greene into his lane, but that when he slowed to come to a stop at the red light, he skidded on the wet roadway into the rear of her vehicle.

         Deputy Zlatko Brujic with the Jefferson Parish Sheriff's Office also responded to the scene of the collision. At the time of trial, Deputy Brujic was retired after a 38-year career in law enforcement, 28 years of which he spent in the traffic division, investigating motor vehicle collisions. Deputy Brujic estimated that he had investigated roughly 16, 000 collisions in his career. He was tendered and accepted as an expert in the field of motor vehicle collision investigation.

         In his investigation of this scene, Deputy Brujic spoke with each of the three drivers. His report reflected that Mr. Lovisa advised the officer that "he was southbound on Clearview Pkwy in left lane and as he had observed that traffic ahead of him had suddenly slowed down he had applied his brakes but his vehicle…slid on wet roadway and before he was ...


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