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Perez v. Gaudin

Court of Appeals of Louisiana, Fifth Circuit

November 29, 2017

CINDY PEREZ, THROUGH HER NATURAL TUTRIX AND ADMINISTRATRIX OF HER ESTATE, EDIS MOLINA
v.
MARY B. GAUDIN AND LM GENERAL INSURANCE COMPANY

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 715-551, DIVISION "C" HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, CINDY PEREZ Ivan A. Orihuela

          COUNSEL FOR DEFENDANT/APPELLEE, MARY B. GAUDIN AND LM GENERAL INSURANCE COMPANY Pamela S. Croft

          Panel composed of Judges Robert M. Murphy, Stephen J. Windhorst, and Hans J. Liljeberg

          STEPHEN J. WINDHORST JUDGE.

         In this appeal, Plaintiff, Cindy Perez, seeks review of the trial court's judgment, which found in favor of Defendants and dismissed her claims with prejudice. For the reasons that follow, we affirm the trial court's judgment.

         Factual and Procedural History

         On June 3, 2012, Ms. Perez filed suit against Defendants, Mary B. Gaudin and LM General Insurance Company, claiming that she had been injured as a result of a car accident.[1] Ms. Perez's Petition alleged that on June 4, 2011, she was a passenger in a vehicle which was rear-ended by a second vehicle, driven by Mary B. Gaudin. Ms. Perez's Petition further alleged that Mary B. Gaudin was insured by LM General Insurance Company at the time of the accident.

         The case proceeded to trial on July 20, 2016. In his opening statement, counsel for Ms. Perez conceded that "[t]he only real issue before the Court today is whether or not Ms. Perez was an occupant in the vehicle that was rear-ended by Ms. Gaudin at the time of the accident." At trial, three witnesses testified: Ms. Perez, Ms. Gaudin, and Edis Molina, Ms. Perez's mother, who was a passenger in the car at the time of the accident. Deputy Zlatko Brujic, who investigated the accident shortly after it happened, was unavailable to testify at trial. However, Deputy Brujic was deposed prior to trial and his deposition was entered into evidence.

         At his deposition, Deputy Zlatko Brujic testified that he had been employed by the Jefferson Parish Sheriff's Office ("JPSO") for over thirty years, twenty eight of those in JPSO's traffic division. During his tenure with JPSO, Deputy Brujic estimated to have investigated between forty and sixty crashes per month. On the day of the accident in question, Deputy Brujic testified that he arrived approximately thirteen minutes after the accident. He testified that when he came to the scene of the accident, he observed two vehicles. The first vehicle was operated by Mary B. Gaudin, who was the sole occupant. The second vehicle was operated by Reinaldo Martinez-Perez, and was also occupied by a passenger, Edis Molina. Deputy Brujic testified that there were no other passengers in the second vehicle when he arrived on the scene. Deputy Brujic acknowledged that he did not have any independent recollection of the accident, and that his testimony was based on his written report. He emphasized, however, that had another person been in the vehicle, or if a witness had told him that another person had been in the vehicle, "it would have been added into the report accordingly." He further testified that he recalled an unidentified older woman coming to the scene of the accident after he arrived, but had no recollection of a person matching Ms. Perez's description being present at any point during his investigation.

         At trial, Edis Molina testified that she was a passenger in a vehicle driven by her husband, Reinaldo Martinez-Perez, at the time of the accident. She also testified that her daughter, Cindy Perez, was sitting in the back seat of the vehicle at the time of the accident. Ms. Molina, who speaks limited English, testified that Ms. Perez, who is bilingual, helped her communicate with Deputy Brujic. She testified that after Deputy Brujic arrived, her sister-in-law brought her insurance cards to the scene of the accident.

         At trial, Ms. Perez testified that at the time of the accident, she was a passenger in the vehicle with her parents. According to Ms. Perez, she was injured when a propane tank situated in the back seat of the car hit her arm at the time of the impact. Ms. Perez testified that she stayed in the vehicle until the police arrived, and then began translating for her mother, who was speaking to Deputy Brujic. She testified that the police officer "was Spanish … but he didn't want to speak Spanish." Ms. Perez gave inconsistent answers about whether she was inside or outside of the vehicle when Deputy Brujic arrived. She further claimed that Deputy Brujic asked what her name was, but did not ask her for identification or any other information. She could not remember what Deputy Brujic looked like, and also testified that she "didn't really talk" to him.

         Ms. Gaudin testified at trial that following the accident, she immediately moved her vehicle to the side of the road and motioned the driver of the second vehicle to do the same. Ms. Gaudin testified that after calling the police, and her daughter, she approached the other vehicle and "saw two people, the man driving and the lady sitting in the front passenger seat." According to Ms. Gaudin, after Deputy Brujic arrived, he approached her vehicle first to speak with her concerning the accident. She testified that Deputy Brujic subsequently approached the other vehicle. She testified that Deputy Brujic spoke to the occupants of the other vehicle while they were "in the car." She testified that she never saw anyone matching Ms. Perez's description in the other vehicle at any point following the accident.

         Following the trial, the trial court rendered written judgment in favor of Ms. Gaudin and LM General Insurance Company, dismissing Ms. Perez's ...


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