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Thomas v. Thomas And Go Auto Insurance Co

Court of Appeals of Louisiana, Second Circuit

February 28, 2018


         Appealed from the Monroe City Court for the Parish of Ouachita, Louisiana Trial Court No. 2015CV02813 Honorable Tammy D. Lee, Judge

          NEAL LAW FIRM By: Mark J. Neal Counsel for Appellants

          THE LAW FIRM OF EDDIE CLARK & ASSOCIATES, L.L.C. By: Eddie M. Clark Counsel for Appellees

          Before GARRETT, STONE, and COX, JJ.

          GARRETT, J.

         The defendants, Donald Thomas and Go Auto Insurance Company ("Go Auto"), appeal from a city court judgment in favor of the plaintiffs, Bridgett Thomas and Gregory Booker, arising from an auto accident. The defendants contend that the trial court erred in reopening the case, which allowed the plaintiffs to remedy perceived deficiencies. They assert that the plaintiffs' claims should have been dismissed in their entirety. For the following reasons, we affirm the trial court judgment.


         On April 16, 2015, Donald Thomas was traveling west on Hampton Avenue in Monroe, Louisiana. He ran a stop sign and collided with a vehicle driven by Bridgett Thomas, traveling north on Gordon Avenue.[1]Gregory Booker was a passenger in Ms. Thomas's car. Ms. Thomas and Mr. Booker were injured in the accident and Ms. Thomas's vehicle was damaged. In accordance with La. R.S. 32:862 and 863.1, Mr. Thomas furnished his insurance information to the police officer who responded to the accident, showing that he was insured by Go Auto.

         On September 2, 2015, Ms. Thomas and Mr. Booker filed suit against Mr. Thomas and Go Auto, claiming that Mr. Thomas was completely at fault in causing the accident. The plaintiffs sought general and special damages. Mr. Thomas was not served with the petition. On October 15, 2015, a general denial answer was filed on behalf of Go Auto only.

         Trial was held on April 6, 2016. Mr. Thomas, who had not been served or subpoenaed, did not appear at the trial. The medical records for Ms. Thomas and Mr. Booker were introduced into evidence without any objection by the defense. Mr. Booker testified regarding the accident, his injuries, his medical treatment, and the limitations on his activities caused by the accident. Mr. Booker was asked about statements made by Mr. Thomas at the scene of the accident. Go Auto made a hearsay objection, arguing that, because Mr. Thomas was not served, he was a not a party to the suit. The objection was overruled. According to Mr. Booker, Mr. Thomas asked if they were alright, apologized, and admitted that he did not see Ms. Thomas's vehicle.

         Go Auto stipulated that, if Ms. Thomas testified, her testimony would be the same as that of Mr. Booker and that the chiropractor who treated her would testify that all her injuries were caused by the accident and the medical bills were reasonable and necessary. In spite of the stipulation, Ms. Thomas testified. She recounted how the accident occurred and outlined her injuries, medical treatment, and limitations on her activities caused by the accident.

         Officer Trey Guillory of the Monroe Police Department responded to the scene and prepared the accident report. Although subpoenaed, he did not appear to testify at trial. Although counsel for Go Auto argued that the police report was hearsay, he agreed to allow it to be filed into evidence, subject to an objection to page two of the report. Information on that page named Mr. Thomas as the driver at fault, specified the year, make, and model of his vehicle, along with the VIN and license plate number. It also listed the number and expiration date of Mr. Thomas's insurance policy with Go Auto.

         The plaintiffs asked to leave the record open to bring Officer Guillory into court to testify, claiming he would state that, at the scene of the accident, Mr. Thomas presented an insurance card showing that he had auto insurance coverage with Go Auto that was in effect on that date. Go Auto said it would only stipulate that the driver listed on the police report as "vehicle number one driver" presented the insurance card to the officer. The police report was filed into evidence, subject to Go Auto's objection to page two. The plaintiffs also filed into evidence Go Auto's answer to the petition stating that it provided insurance to Mr. Thomas. Paragraph eight of the answer reads as follows:

Defendant Go Auto admits that it provided a liability insurance policy in favor of Donald Thomas and shows that said policy is the best evidence of the contents, coverages, exclusions and provisions contained therein and pleads same as if copied herein in extenso. Except as thus admitted, the remaining allegations are denied for lack of sufficient information to justify a belief therein.

         Go Auto did not cross-examine Mr. Booker or Ms. Thomas and did not call any witnesses to testify at trial. Pursuant to Go Auto's request, the court allowed the parties time to supply post-trial briefs. The plaintiffs addressed quantum in their post-trial brief.

         In its post-trial brief, Go Auto did not address quantum and instead urged that the plaintiffs' claims should be dismissed for several reasons. First, no judgment could be entered against Donald Thomas, who was not served and was not a party to the suit. Second, Go Auto argued that the terms of the Direct Action Statute were not satisfied. Go Auto contended that no action can be brought against the insurer alone where the plaintiffs did not show that the insurer provided insurance to Donald Thomas and that he could not be located for service of process.[2] Third, Go Auto claimed that the plaintiffs did not prove the existence of insurance coverage. The company argued that its answer to the plaintiffs' petition did not provide proof of coverage, but only admitted that "a liability policy of some sort was issued at some point with certain provisions, coverages, and exclusions that speak for themselves." Go Auto claimed it pled the four corners rule of a document that was not introduced into evidence. Finally, Go Auto asserted that the plaintiffs did not establish that Mr. Thomas was involved in the accident. Based upon these arguments, Go Auto maintained that the plaintiffs failed to prove their case.

         The plaintiffs filed a reply brief terming Go Auto's arguments "disingenuous." The plaintiffs' attorney said he knew at trial "that opposing counsel was up to some kind of trick" and he was "very mindful and extremely concerned that opposing counsel was looking to pull a rabbit out of his hat and pull a fast move, which appears to be the case here." The plaintiffs urged that Go Auto's answer concerning insurance coverage was a judicial confession. They also pointed out that Go Auto never filed a peremptory exception under La. C.C.P. art. 641, raising the nonjoinder of a party. The plaintiffs urged the trial court to reopen the case for joinder of Mr. Thomas and for evidence regarding his participation in the ...

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