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Fuller v. Bissell

Court of Appeals of Louisiana, Second Circuit

January 10, 2018

LARRY FULLER Plaintiff-Appellant
v.
LEMAN BISSELL AND HIS INSURER, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, JOINTLY AND INSOLIDO Defendants-Appellees

         Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 586, 951 Honorable Ramon Lafitte, Judge

          DAVIS LAW OFFICE, LLC By: Kharmen Davis Counsel for Appellant

          CASTEN & PEARCE, APLC By: Hunter S. Crawford Theodore J. Casten Counsel for Appellees

          Before BROWN, MOORE, and PITMAN, JJ.

          MOORE, J.

         Larry Fuller appeals a judgment of involuntary dismissal that rejected his claims against Leman Bissell and his insurer, State Farm, for personal injury and property damage arising from an auto accident. We affirm.

         FACTUAL BACKGROUND

         In the late morning or early afternoon of August 22, 2014, Fuller was exiting the parking lot of the County Market store on Hearne Avenue. He pulled his 1997 Ford truck into the northbound lane of Hearne, where he was struck by a 2010 Chevy Colorado driven by Bissell. The front of Bissell's Colorado ran into the driver's door of Fuller's Ford.

         Fuller filed this suit against Bissell and his insurer, State Farm. He alleged that he pulled into Hearne when the traffic was clear, but his truck unexpectedly stalled; stranded in the right-hand northbound lane, he gestured to several other northbound drivers, all of whom safely swerved around him, but Bissell's truck came up fast and broadsided him. He alleged that the impact injured his lower back, caused radiating pain down his left leg, and required two months of treatment with a neurologist and multiple sessions with a physical therapist. He later stipulated that his damages did not exceed $50, 000.

         State Farm responded that Bissell faced a sudden emergency, as Fuller basically lurched out of the parking lot and into passing traffic; Bissell simply did not have time to avoid the collision.

         TRIAL EVIDENCE AND JUDGMENT

         The matter came to trial in January 2017. State Farm stipulated that the neurologist's and therapist's records were authentic, and that their treatment was causally related to the accident. The parties also stipulated that there would be no personal judgment against Bissell, if found to be negligent; any judgment would be strictly against State Farm. Fuller offered no documentary evidence or photos.

         Fuller called three witnesses. Cpl. Mike Schulz, who investigated the accident, had no independent recollection of it, and had to refer to his report (not introduced in evidence). He said he took no measurements, as both trucks had been moved off the road by the time he arrived; he interviewed both drivers, and neither said he was injured; Fuller said he stalled in the road, but Bissell said that by the time he saw this, it was too late to avoid the accident. Cpl. Schulz issued no citations, but wrote in his report that "Fuller failed to yield right of way, " and he felt that Fuller should not have brought his truck on a public highway if it was "not operating properly." He did not write in his report that Fuller said he waved drivers around his stalled truck or that traffic was clear when he pulled into the street. On cross-examination, Cpl. Schulz testified that both trucks were still in the street when he arrived, and that Fuller backed his truck, on its own power (without pushing or towing), into the County Market parking lot.

         Bissell, on cross-examination, testified that it was about 1:00 pm on a clear, sunny day, and he was doing about 35-40 mph on Hearne. Coming up to County Market, he saw two vehicles waiting to pull out of the parking lot. The first one came out, crossed the northbound lanes, and stopped in the turning lane, but the second one, Fuller's truck, darted out right behind it, and stopped in the right-hand lane because the turning lane was occupied. Bissell estimated he was only about 10 feet away when Fuller pulled into his path, and he could not avoid the accident. Bissell was emphatic that Fuller was not stalled in the road and was not waving other cars around him; he just pulled "straight out there and stopped." The officer arrived about 15 minutes later, after the trucks had been moved onto the County Market lot, and did not interview him (Bissell); however, he talked to Fuller, and then told Bissell that Fuller "admitted it was his fault." On direct examination, Bissell ...


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