APPEAL FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT PARISH
OF ST. JAMES, STATE OF LOUISIANA NO. 37, 296 C/W 37, 319,
DIVISION "D" HONORABLE JESSIE M. LEBLANC, JUDGE
COUNSEL FOR PLAINTIFF/APPELLANT, RICHARD PALMER, Donald J.
Cazayoux, Jr., J. Lane Ewing, Jr.
COUNSEL FOR DEFENDANT/APPELLEE, MICHAEL LEWIS SMITH, UV
LOGISTICS, LLC, AND UV INSURANCE RISK RETENTION GROUP, INC.
Bryan D. Scofield, James T. Rivera
COUNSEL FOR DEFENDANT/APPELLEE, AMERICAN ZURICH INSURANCE
COMPANY Michael D. Peytavin
composed of Judges Susan M. Chehardy, Robert A. Chaisson, and
Hans J. Liljeberg
J. LILJEBERG JUDGE
personal injury action, plaintiff appeals the trial
court's judgment, rendered in accordance with the
jury's verdict, dismissing his claims against all
defendants with prejudice. For the following reasons, we
OF THE CASE
case arises from a motor vehicle accident that occurred in
St. James Parish on November 24, 2014. According to
plaintiff, Richard Palmer, he was traveling eastbound on
LA-70 over the Sunshine Bridge when traffic congestion caused
him to come to a stop. Suddenly, a pickup truck driven by
defendant, Michael Smith, struck the vehicle behind Mr.
Palmer, which in turn struck Mr. Palmer's vehicle. At the
time of the accident, Mr. Smith was working for UV Logistics,
L.L.C. ("UV Logistics"), which was insured by UV
Insurance Risk Retention Group, Inc. ("UV
Insurance") and American Zurich Insurance Company
November 5, 2015, Mr. Palmer filed this lawsuit against Mr.
Smith, UV Logistics, and UV Insurance, asserting that he
sustained serious back, leg, and hip injuries as a result of
this accident. On January 23, 2017, Mr. Palmer filed a First
Supplemental and Amending Petition adding AZIC as a
January 26, 2017, Mr. Smith and UV Logistics filed a
"Stipulation of Liability" into the record,
indicating that they accepted full responsibility and
liability for the motor vehicle accident that occurred on
November 24, 2014. Mr. Smith and UV Logistics indicated that
they would continue to contest all other issues, such as
whether Mr. Palmer sustained any injuries as a result of the
matter proceeded to a jury trial, which began on November 14,
2017, and concluded on November 17, 2017. At the conclusion
of trial, the jury returned a verdict in favor of defendants,
finding that Mr. Palmer did not meet his burden of proving
that he was injured as a result of the November 24, 2014,
motor vehicle accident. On December 20, 2017, the trial judge
signed a judgment in accordance with the jury's verdict,
dismissing Mr. Palmer's claims against all defendants
with prejudice. Mr. Palmer appeals.
appeal, Mr. Palmer argues that he did not receive a fair and
impartial trial. He sets forth five assignments of error,
claiming that the trial court's judgment rendered in
accordance with the jury's verdict should be overturned.
first assignment of error, Mr. Palmer argues that the trial
court abused its discretion by failing to strike four
prospective jurors for cause. He argues that the four
prospective jurors, Charles Core, Guy Schexnayder, Chad
Bourgeois, and Jordan O'Bryant, all indicated that they
were opposed to lawsuits for personal injuries, three of them
indicated that they would not be able to apply the
preponderance of the evidence standard to the facts of this
case, and two of them acknowledged that they would have
difficulty being fair. Mr. Palmer contends the responses of
these prospective jurors, when viewed in context of the
overall voir dire examination, were disqualifying,
and his challenges for cause should have been granted. We
note that none of these four prospective jurors was seated on
the jury, as plaintiff used peremptory challenges to strike
respond that the challenges for cause were properly denied.
They contend that plaintiff's counsel purposefully
attempted to put a different standard of proof than a
preponderance of the evidence in the prospective jurors'
minds. They argue that the responses from prospective jurors
of which plaintiff now complains were the result of
plaintiff's counsel's continued questioning about how
they felt about the preponderance of the evidence standard.
Defendants assert that plaintiff's counsel insinuated
that the prospective jurors had the option of applying a
different standard of review than the standard instructed by
C.C.P. art. 1765(2) provides that a juror may be challenged
for cause when he "has formed an opinion in the case or
is not otherwise impartial, the cause of his bias being
immaterial." A trial judge is vested with broad
discretion in ruling on challenges for cause, and the
appellate court should not disturb its ruling unless the
voir dire as a whole indicates an abuse of
discretion. Riddle v. Bickford, 00-2408 (La.
5/15/01), 785 So.2d 795, 801; Simms v. Progressive Ins.
Co., 38, 804 (La.App. 2 Cir. 9/29/04), 883 So.2d 473,
479, writ denied, 04-2871 (La. 1/28/05), 893 So.2d
prospective juror is able to state to the trial court's
reasonable satisfaction that he could render an impartial
verdict according to the law and evidence, a challenge for
cause to that juror is properly denied. Scott v. American
Tobacco Company, 01-2498 (La. 9/25/01), 795 So.2d 1176,
1182. However, a challenge for cause should be granted, even
when a prospective juror declares his ability to remain
impartial, if the juror's responses as a whole reveal
facts from which bias, prejudice, or inability to render
judgment accordingly may be reasonably implied. Id.,
citing State v. Hallal, 557 So.2d 1388, 1390 (La.
1990). A prospective juror's seemingly prejudicial
response is not grounds for an automatic challenge for cause,
and the denial of such a challenge is not an abuse of
discretion, if after further questioning the prospective
juror demonstrates a willingness and ability to decide the
case impartially according to the law and evidence. State
v. Castillo, 13-552 (La.App. 5 Cir. 10/29/14), 167 So.3d
624, 639, writs denied, 14-587 (La. 11/7/14), 152
So.3d 172 and 14-2567 (La. 9/18/15), 178 So.3d
after questioning of the prospective jurors began, the trial
At the conclusion of the evidence, I will instruct you on the
law applicable to this case. You must apply the law as I
instruct you to the facts as you find them.
trial judge then asked:
Will you follow the law as I give it to you? Does anyone here
think they cannot follow the law once I give the
transcript reflects that none of the prospective jurors
indicated that he or she could not follow the law as
during his questioning of prospective jurors in the first
panel, plaintiff's counsel noted that the burden of proof
in criminal cases is "beyond a reasonable doubt"
and asked how the prospective jurors felt about the burden of
proof in this civil matter being "only more probably
than not" and "if we're right 51 percent on a
particular issue, then we are supposed to win on that
issue." After questioning individual jurors regarding
how they felt about this standard, at a bench conference,
counsel for AZIC complained that he believed plaintiff's
counsel was "putting in the jurors' minds a
different standard of proof" and asking them if they
would prefer "beyond a reasonable doubt." The trial
court then stated to the jury:
And, ladies and gentlemen, I'm going to go ahead and
instruct you at this time. [Plaintiff's counsel] has
asked you a few questions about the burden of proof. At the
conclusion of this trial, I will give you an instruction as
to what the law is that you must follow. The question is,
'Are you able to follow the law as I give it to you?'
Even though your personal preferences may be different, do
you believe that you can follow the law?
Is there anyone here that feels like your feelings are so
strong that you would not follow the law as I give it to you?
Okay. All right. Thank you.
record does not reflect that any prospective juror indicated
that he could not follow the law as instructed.
regard to prospective juror Guy Schexnayder, plaintiff argues
that he should have been excused for cause, because he stated
that he would need a "90 percent" level of proof.
The record reflects that Mr. Schexnayder was asked how he
felt about the standard of proof being "only more
probably than not," and he initially replied that he did
not know. When asked if he believed any lawsuits are
legitimate, Mr. Schexnayder replied, "it all
depends." When plaintiff's counsel questioned him
further, Mr. Schexnayder stated that it was "not in
[his] build" to file a lawsuit. In response to
plaintiff's counsel's questioning regarding the
standard of proof, Mr. Schexnayder at one point agreed with
counsel that he would need "90 percent." However,
Mr. Schexnayder also replied, "it depends," when
plaintiff's counsel asked, "[i]f we prove 51
percent…you probably wouldn't be able to do
that?" When the trial court asked if they could follow
the law as provided to them by ...