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Larios v. Martinez

Court of Appeals of Louisiana, Fifth Circuit

February 21, 2018

CLAUDIA LARIOS AND MARLON E. FUNEZ
v.
JULIO GOMEZ MARTINEZ AND IMPERIAL FIRE AND CASUALTY INSURANCE COMPANY

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 751-166, DIVISION "O" HONORABLE DANYELLE M. TAYLOR, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, CLAUDIA LARIOS AND MARLON E. FUNEZ Miguel A. Elias Paula J. Ferreira Rolando A. Padilla Jahida L. Lewis Robert W. Goeke Pablo C. Perez Luna Elizabeth A. Zavala Adam M. Klock Mario D. Zavala, Jr.

          COUNSEL FOR DEFENDANT/APPELLANT, IMPERIAL FIRE AND CASUALTY INSURANCE COMPANY Paul D. Oberle, Jr.

          Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Stephen J. Windhorst

          SUSAN M. CHEHARDY, CHIEF JUDGE.

         In this personal injury case arising from an automobile collision, defendant, Imperial Fire and Casualty Insurance Company, appeals the district court's June 14, 2017 judgment in favor of plaintiffs, Claudia Larios and Marlon Funez. After review, we find Imperial is entitled to partial relief, and accordingly amend in part the district court's judgment, and affirm as amended.

         FACTUAL AND PROCEDURAL HISTORY

         On the evening of August 4, 2014, Claudia Larios was idling in her vehicle, waiting for a parking spot to open up in the lot of her apartment complex on Division Street in Metairie, Louisiana. Marlon Funez was in the passenger seat. Lindsay Vehorn, another resident in the complex, was stopped behind plaintiffs in her sport utility vehicle, a Honda Element. A white Dodge pickup truck rounded a corner from behind Ms. Vehorn's SUV and attempted to get in front of her, evidently not seeing plaintiffs in their sedan, a Hyundai Azera. The right front of the truck struck the rear left of Ms. Larios' vehicle. The passenger of the truck exited and tried to speak with plaintiffs, but was noticeably intoxicated. Ms. Larios was able to get a look at the driver of the truck before he abruptly drove away moments later. Ms. Larios called the police.

         Though plaintiffs described the truck as white, Ms. Vehorn stated in her deposition that it was black or dark in color. Ms. Vehorn also stated that she was familiar with the truck from around the apartment complex and knew the driver lived there. She described the truck as a nuisance, explaining that the driver seemed to frequently come home drunk, taking up two or three parking spots with the truck bed full of empty beer cans.

         The day after the collision, Ms. Larios encountered the passenger from the truck, to whom she gave her contact information with the request that it be passed along to the driver. Ms. Larios testified that thereafter, an individual who identified himself as Julio Martinez and whom she recognized as the driver of the truck provided her with documentation of his insurance. According to Ms. Larios, this individual also told her that he never meant to damage her car, that he left the scene because he was intoxicated, that he knew she had called the police, and that he already had a DWI.

         As a result of the collision, Ms. Larios sought medical treatment for her neck and lower back; Mr. Funez sought treatment for his neck, lower back, and right knee. On July 7, 2015, plaintiffs filed a petition for damages, naming as defendants Julio Gomez Martinez and his insurer, Imperial Fire and Casualty Insurance Company. Plaintiffs were unable to locate and serve Mr. Martinez. Consequently, on April 20, 2017, the parties entered into a joint stipulation, whereby plaintiffs voluntarily dismissed all claims against Mr. Martinez and reserved all claims against Imperial pursuant to Louisiana's Direct Action Statute, La. R.S. 22:1269.

         The matter proceeded to a bench trial on May 17, 2017 and the court issued its judgment on June 14, 2017. The court ruled in favor of plaintiffs and against Imperial. Ms. Larios was awarded $6, 218 in past medical expenses and $15, 100 in past pain and suffering, for a total of $21, 318. Mr. Funez was awarded $5, 267 in past medical expenses and $16, 000 in past pain and suffering, for a total of $21, 267. In its judgment, the court specifically ordered Imperial to pay plaintiffs these amounts. Imperial's timely suspensive appeal followed.

         ASSIGNMENTS OF ERROR

         On appeal, Imperial assigns four errors:

(1) The trial court erred in allowing Claudia Lorios to testify as to what she was told and/or the information she was allegedly provided on a sheet of paper (which she could not produce), over the hearsay objections of the appellant.
(2) The trial court erred in allowing the plaintiffs to introduce an A&B Inspection Report which had never been produced through discovery or identified by the plaintiffs on the pretrial order where said document contained inadmissible hearsay evidence.
(3) The court erred in finding the plaintiffs proved through admissible evidence the identity of the tortfeasor, that he was an insured of Imperial, and that he ...

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