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Marable v. Empire Truck Sales of Louisiana, LLC

Court of Appeals of Louisiana, Fourth Circuit

June 23, 2017

WAYNE MARABLE INDIVIDUALLY AND AS CURATOR ON BEHALF OF CONNIE MARABLE
v.
EMPIRE TRUCK SALES OF LOUISIANA, LLC AND CURTIS WAYNE HUDSPETH WAYNE MARABLE INDIVIDUALLY AND AS CURATOR ON BEHALF OF CONNIE MARABLE
v.
EMPIRE TRUCK SALES OF LOUISIANA, LLC AND CURTIS WAYNE HUDSPETH WILLIAM "BILL" JONES AND ENGELIQUE JONES
v.
EMPIRE TRUCK SALES, LLC, CURTIS WAYNE HUDSPETH, WAYNE MARABLE, GREAT WEST CASUALTY COMPANY, DAIMLER TRUCKS NORTH AMERICAL, LLC AND KLLM TRANSPORT SERVICES, LLC

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2012-10471 C\W 2012-10523 C/W 2013-04560, DIVISION "I-14" Honorable Piper D. Griffin, Judge

          Caleb H. Didriksen, III, Erin Bruce Saucier, DIDRIKSEN LAW FIRM, PLC, And Tony Clayton, CLAYTON, FRUGE & WARD, COUNSEL FOR PLAINTIFF/APPELLEE.

          C. G. Norwood, Jr., Patrick John O'Cain, McGLINCHEY STAFFORD, PLLC, And Janika D. Polk KUCHLER POLK SCHELL WEINER & RICHESON, LLC, COUNSEL FOR DEFENDANT/APPELLANT.

          Court composed of Judge Terri F. Love, Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano

          Madeleine M. Landrieu Judge.

         In this products liability action, the plaintiff, Connie Marable, suffered an anoxic brain injury and other permanently disabling injuries when she lost her footing and became pinned underneath the two rear tires of an over-the-road tractor[1] while running alongside the moving vehicle and attempting to turn the ignition key to shut off its engine. The plaintiff will require 24-hour care for the rest of her life and will never regain her former lifestyle. Suit to recover damages was filed on the plaintiff's behalf. The matter proceeded to trial, after which a jury found the defendants, Daimler Trucks North America ("DTNA"), the manufacturer of the tractor, and Wayne Marable, the owner of the tractor and the plaintiff's husband, liable for the accident, apportioning fault between the two, and awarded damages. The trial court entered judgment in accordance with the jury's verdict on April 29, 2016. DTNA moved for a judgment notwithstanding the verdict ("JNOV") on the issues of liability and damages, which the trial court denied on June 13, 2016.

          DTNA suspensively appealed the judgment and the trial court's denial of its motion for JNOV. DTNA also filed an exception of prescription in this court on the ground that the plaintiff's claims against it, filed two years after the date of the accident, had prescribed due to the exoneration at trial of a timely-sued alleged tortfeasor. The plaintiff opposed DTNA's exception, and the plaintiff filed a motion to supplement the appellate record with Volume One of the record of the legal proceedings by which she was interdicted as a result of her injuries from this accident. Alternatively, the plaintiff also filed a motion to remand the case for trial of the prescription issue only. For the following reasons, we deny DTNA's exception of prescription; deny the plaintiff's motions to remand and to supplement; affirm the trial court's judgment denying DTNA's motion for JNOV on the issue of liability; and affirm the trial court's judgment denying DTNA's motion for JNOV on the issue of damages. The trial court judgment adopting the jury's allocation of fault, ninety percent to DTNA and ten percent to Mr. Marable, is not disturbed on appeal. The trial court judgment is affirmed in all respects.

         FACTS AND PROCEDURAL HISTORY

         In 2006, the defendant, Wayne Marable, who had been driving commercial trucks since 1987, began a lease-purchase program with his employer, KLLM Transport Services, LLC ("KLLM"), for an 18-wheeler tractor, a 2007 Freightliner Columbia equipped with a 2006 Detroit Diesel Series 60 engine. The tractor was custom manufactured by DTNA, pursuant to specifications submitted to it by KLLM. By the time of the accident sued upon herein in 2012, Mr. Marable was the owner of the tractor, which had been driven over 600, 000 miles.

         During a trip to North Carolina in April 2012, Mr. Marable observed that the clutch on the tractor was slipping. On his way home to Louisiana, he took the tractor to Empire Truck Sales of Louisiana, LLC ("Empire") for repairs. Empire replaced the tractor's clutch. Following the repairs, Mr. Marable drove the truck home and parked it in the parking lot of Lowe's Home Improvement ("Lowe's") located on Read Boulevard in New Orleans East, where the tractor remained for several weeks.

         On May 14, 2012, Wayne and Connie Marable drove from their home to the Lowe's parking lot in order for Mr. Marable to prepare his tractor for a trip he was scheduled to make on behalf of KLLM. This was his first trip on the road in the tractor since the prior clutch repair. According to Mr. Marable, upon arriving at his tractor, he performed his usual pre-trip routine: he got into its cab; checked that its parking brake was engaged; moved the gear shifter from left to right to make sure the transmission was in neutral; and, started the engine. Next, Mr. Marable exited the tractor, with its engine idling in neutral and the park brakes engaged, and began performing the required pre-trip inspection and loading items from his car into the tractor.[2]

         As Mr. Marable went to open the tractor's passenger door, he heard the engine begin to race followed by a loud "pop or bang." The vehicle began to suddenly move with no one in the cab. Mr. Marable dropped his clothes on the ground and yelled to the plaintiff to open the driver's side door and shut off the ignition key in order to kill the engine. The ignition is located to the lower left side of the steering column, and its key can be turned on or off while standing on the ground. As the tractor began to suddenly move forward, the plaintiff ran alongside it in an attempt to turn the key off. In the process, she lost her footing and fell going underneath the truck. The plaintiff was dragged by the tractor for a distance and became pinned face down underneath its rear tires. The tractor eventually came to a stop with its front wheels extending over a curb.

         The plaintiff sustained severe and permanently disabling injuries as a result of the accident, including an anoxic brain injury. Consequently, she is in a minimally conscious state, meaning she is minimally aware of her surroundings, but not consciously aware of her condition. She has a tracheotomy, which interferes with her ability to verbally communicate. The plaintiff's injuries are permanent, and she will require 24-hour care for the rest of her life.

         Within one year of her accident, the plaintiff was interdicted, and a curator and under-curator were appointed to act on her behalf. Thereafter, through her curator, suit was filed on her behalf, originally naming as defendants, Empire and its employee, Curtis Wayne Hudspeth. DTNA, Wayne Marable and KLLM were later added as defendants by way of a supplemental and amending petition.[3] As to her claims against DTNA, the plaintiff alleged that pursuant to the Louisiana Products Liability Act, the tractor it manufactured was unreasonably dangerous, both in design and due to an inadequate warning.

         In April 2016, the matter proceeded to trial against DTNA and Wayne Marable. The case was tried before a jury over six days from April 4, 2016 to April 12, 2016. After deliberating, the jury returned a verdict finding, by a preponderance of the evidence, that Mr. Marable's tractor manufactured by DTNA "was unreasonably dangerous in its design" and "that the unreasonably dangerous design . . . was a proximate cause of the damages sustained by Mrs. Connie Marable." The jury further determined that Mr. Marable was negligent in connection with his wife's accident and that his negligence was also a proximate cause of the damages she sustained. The jury apportioned 90% of the fault for the accident to DTNA and 10% to Mr. Marable, and awarded the following damages to the plaintiff:

Past Medical Expenses - $898, 775.77[4]
Future Medical & Life Care Expenses - $10, 549, 399.00
Past & Future Physical Pain & Suffering - $10, 000, 000.00
Past & Future Mental Pain & Suffering - $10, 000, 000.00
Past & Future Loss of Enjoyment of Life - $10, 000, 000.00
Scarring & Disfigurement - $10, 000, 000.00

         On April 29, 2016, the trial court entered judgment in accordance with the jury's verdict for $51, 448, 174.77, plus judicial interest from April 17, 2014, the date of judicial demand, until paid, and for all recoverable costs.

         DTNA filed a motion for JNOV on May 9, 2016, on the issues of liability and damages urging that the jury's verdict was manifestly erroneous because: (1) the plaintiff failed to prove the tractor design was unreasonably dangerous because no evidence was presented to establish that DTNA could have foreseen the accident or that the tractor's design was a proximate cause of her accident, and (2) the jury abused its discretion because a general damages award of forty million dollars is beyond what a reasonable trier of fact could assess for the injuries that left the plaintiff in a minimally conscious state, and the evidence did not support a special damages award given the plaintiff's permanently disabling condition and reduced life expectancy. Following a hearing, the trial court denied DTNA's motion, with oral reasons, and rendered judgment on June 13, 2016. DTNA timely appealed the final judgment of April 29, 2016, and the trial court's judgment denying its motion for JNOV.

         Thereafter, DTNA filed for the first time in this court a peremptory exception of prescription averring that the plaintiff's claims against it, filed more than two years after her accident and resulting injuries, had prescribed.

         DTNA'S EXCEPTION OF PRESCRIPTION

         The facts pertinent to the resolution of the prescription issue are undisputed. The accident occurred on May 14, 2012. The plaintiff, who was sixty-four years old at the time and was not an interdict, sustained serious injuries in the accident. As a result of these injuries, the plaintiff was temporarily interdicted on September 21, 2012, and permanently interdicted on November 9, 2012, within one year of the date of the accident. On November 9, 2012, a tort suit was filed on the plaintiff's behalf against Empire (which allegedly had negligently repaired the clutch on the tractor shortly before the accident).[5] On April 7, 2014, approximately two years after the accident, the plaintiff filed a Second Supplemental and Amending Petition adding DTNA as a defendant, asserting a products liability claim against DTNA as the manufacturer of the tractor. After trial in April of 2016, a jury found that the plaintiff's injuries were solely caused by the combined fault of DTNA and Wayne Marable and found no liability on the part of Empire.

         This finding of no liability on the part of Empire provides the basis for the exception of prescription asserted by DTNA on appeal. Delictual actions are subject to a one-year prescriptive period. La. C.C. art. 3492. This one-year prescription applies to actions brought pursuant to the Louisiana Products Liability Act (LPLA). Div. Place P'ship v. Carl E. Woodward, Inc., 2000-2151, p. 4 (La.App. 4 Cir. 1/16/02), 806 So.2d 912, 915. Prescription is interrupted when the obligee files suit against the obligor in a court of competent jurisdiction and venue, and this interruption continues as long as the suit is pending. La. C.C. arts. 3462 and 3463. When prescription is interrupted against a solidary obligor, the interruption is effective against all solidary obligors. La. C.C. art. 3503.

         Because in the instant case the plaintiff did not sue DTNA within a year of the accident, she was relying upon her timely suit against Empire, allegedly a solidary obligor with DTNA, to interrupt prescription against DTNA. However, the exoneration of Empire at trial meant that Empire could no longer be considered a solidary obligor, and, therefore, prescription was never interrupted against DTNA. As this court held in Hernandez v. Chalmette Med. Center: "If… it is determined after trial that there is no joint or solidary obligation, prescription may be successfully asserted by an untimely sued defendant who is cast in judgment." 2001-0074, p. 5 (La.App. 4 Cir. 8/21/02), 826 So.2d 641, 644 (citing cases).

         Louisiana Code of Civil Procedure Article 2163 provides, in pertinent part:

The appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.
If the ground for the peremptory exception pleaded in the appellate court is prescription, the plaintiff may demand that the case be remanded to the trial court for trial of the exception.

         Pursuant to this article, the plaintiff here has filed a motion to remand this matter for trial of DTNA's exception of prescription. As this court has previously held, the granting of a motion to remand pursuant to Article 2163 is discretionary not mandatory. Hernandez, 2001-0074 at p. 6, 826 So.2d at 645. Generally, this court has found that remand is not necessary when the merits of the prescription issue can be determined from the record on appeal. Id. As explained more fully below, in the present case, we conclude that all facts pertinent to the determination of the prescription issue are established by the record before us. Accordingly, we deny the motion for remand and, for the same reasons, deny the motion to supplement the record with the transcript of the proceedings by which Connie Marable was interdicted.

         Because the plaintiff did not file suit against DTNA within a year of the accident and prescription against DTNA was not interrupted by the timely suit against Empire, the action against DTNA is prescribed on its face. The plaintiff, therefore, has the burden of proving that prescription has not run due to an exception, suspension or interruption. See Crosby v. Sahuque Realty Co., Inc., 2012-1537, p. 6 (La.App. 4 Cir. 8/21/13), 122 So.3d 1197, 1201-02.

         The plaintiff argues that, pursuant to Louisiana Civil Code article 3492, prescription ceased to run against her when she became an interdict, which occurred within one year of the accident. Louisiana Civil Code article 3492 (with pertinent language highlighted) states:

Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained. It does not run against minors or interdicts in actions involving permanent disability and brought pursuant to the Louisiana Products Liability Act or state law governing product liability actions in effect at the time of the injury or damage.

         The parties do not dispute that the action against DTNA is one "involving permanent disability" and is "brought pursuant to the Louisiana Products Liability Act." Nor do they dispute that Connie Marable became an interdict within one year of the date of the accident. Given these facts, which are established by the record, the question of whether this action is prescribed turns solely on our interpretation of the meaning of the second sentence of Article 3492, which is purely a legal issue. The plaintiff argues that under the plain language of the article, prescription "does not run" against interdicts; therefore, when she became an interdict, prescription against her stopped running. Therefore, the plaintiff argues, the action is not prescribed because prescription will remain tolled as long as she remains an interdict. DTNA counter-argues that the exception created by the second sentence of Article 3492 does not apply to the plaintiff because she was not an interdict at the time the accident occurred. DTNA argues that the phrase "it [prescription] does not run" actually means "it does not commence to run, " which would limit the application of the exception to cases in which the person on whose behalf the products liability action is filed is an interdict at the time the damage caused by the allegedly defective product is inflicted. DTNA also argues that any other interpretation would create an imprescriptible delictual cause of action, a unique result that the legislature could not have possibly intended in drafting the provision.[6]

         The second sentence of Article 3492 was added by amendment of the article in 1992. See La. Acts 1992, No. 621, §1. We are aware of no jurisprudence interpreting this provision as it applies to interdicts (as opposed to minors). Similarly, our review of the legislative history reveals no discussion of the provision as it would relate to interdicts; the only recorded discussion concerning the proposed amendment relates to minors.[7] However, we need not resort to the legislative history to interpret the code article.

         The starting point for the interpretation of any provision of law is the language of the provision itself. Louisiana Dep't of Agric. & Forestry v. Sumrall, 98-1587, p. 5 (La. 3/2/99), 728 So.2d 1254, 1258. Louisiana Civil Code article 11 provides: "The words of a law must be given their generally prevailing meaning." Similarly, Louisiana Civil Code article 9 states:

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.

         Interpreting Article 3492 as it is written, we conclude that the words "It [prescription] does not run against… interdicts" can have only one meaning: that prescription did not run, or ceased to run, against the plaintiff at the point she became an interdict. As there is no dispute that the plaintiff was interdicted prior to the time the one-year prescription would have run out, prescription ceased running at that time, and her claim never prescribed. Under the circumstances presented here, we do not need to decide whether the tolling of the prescriptive period was an interruption or a suspension because either was still in effect at the time suit was filed against DTNA, as Connie Marable remains an interdict. We therefore do not reach that issue.

         Accordingly, we deny the exception of prescription asserted by DTNA. In light of this denial, we deny Mrs. Marable's motions to remand and to supplement as moot.

         ASSIGNMENTS OF ERROR

         On appeal, DTNA asserts the following assignments of error:

1. The trial court erred as a matter of law in denying DTNA's motion for JNOV on liability on the grounds that, pursuant to § 9:2800.56 of the Louisiana Products Liability Act, the plaintiff failed to prove: (a) that the tractor's design was unreasonably dangerous because she presented no evidence that DTNA could have foreseen the accident, and (b) that the tractor's design proximately caused her accident; and
2. The trial court erred in denying DTNA's motion for JNOV on damages on the bases that the jury abused its discretion by awarding (a) general damages of $40, 000, 000, which are beyond what a reasonable trier of fact could assess under the circumstances, and (b) special damages based on the plaintiff living to a normal life-expectancy of 85-years old in light of her permanently disabling condition.

         STANDARD OF REVIEW

         In a products liability action, whether a defect is unreasonably dangerous in design is a question of fact. Hines v. Remington Arms Co., 94-0455, p. 6 (La. 12/8/94), 648 So.2d 331, 335. The factual findings of a fact-finder will not be disturbed absent manifest error. Arabie v. CITGO Petroleum Corp., 10-2605, p. 4 (La. 3/13/12), 89 So.3d 307, 312; Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The Louisiana Supreme Court has set forth a two-part test for the appellate review of facts: (1) the appellate court must find from the record that there is no reasonable factual basis for the finding of the factfinder, and (2) the appellate court must further determine that the record establishes the finding is not clearly wrong or manifestly erroneous. Theriot v. Lasseigne, 93-2661, p. 5 (La. 7/5/94), 640 So.2d 1305, 1310. If the trial court or jury's findings are reasonable and not clearly wrong in light of the record reviewed in its entirety, the appellate court may not reverse. Arabie, 10-2605 at p. 4, 89 So.3d at 312; Cheairs v. State ex rel. Department of Transp. and Development, 03-0680, p. 14 (La. 12/3/03), 861 So.2d 536, 545; Stobart v. State, Through DOTD, 617 So.2d 880, 883 (La. 1993).

         The issue to be resolved by the appellate court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusions were reasonable. Stamps v. Dunham, 07-0095, p. 3 (La.App. 4 Cir. 9/19/07), 968 So.2d 739, 743. Where there is a conflict in the testimony, a jury's reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even if the appellate court is convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Rosell, supra at 844. Similarly, where the testimony of expert witnesses differs, it is the responsibility of the trier of fact to determine which evidence is the most credible. Rando v. Anco Insulations Inc., 08-1163, 08-1169, p. 30 (La. 5/22/09), 16 So.3d 1065, 1088. Consequently, when there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Arabie, 10-2605 at p. 4, 89 So.3d ...


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