from the Monroe City Court for the Parish of Ouachita,
Louisiana Trial Court No. 2015CV02813 Honorable Tammy D. Lee,
LAW FIRM By: Mark J. Neal Counsel for Appellants
LAW FIRM OF EDDIE CLARK & ASSOCIATES, L.L.C. By: Eddie M.
Clark Counsel for Appellees
GARRETT, STONE, and COX, JJ.
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.
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.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
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.
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.
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.
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.
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.
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.
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. 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.
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 ...