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Palmer v. UV Insurance Risk Retention Group, Inc.

Court of Appeals of Louisiana, Fifth Circuit

December 19, 2018

RICHARD PALMER
v.
UV INSURANCE RISK RETENTION GROUP, INC., UV LOGISTICS, LLC, AND MICHAEL LEWIS SMITH JEANNIE BREAUX
v.
UV INSURANCE RISK RETENTION GROUP, INC., UV LOGISTICS, LLC, AND MICHAEL LEWIS SMITH

          ON 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 PRESIDING

          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

          Panel composed of Judges Susan M. Chehardy, Robert A. Chaisson, and Hans J. Liljeberg

          HANS J. LILJEBERG JUDGE

         In this 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 affirm.

         STATEMENT OF THE CASE

         This 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 ("AZIC").

         On 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 defendant.[1]

         On 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 accident.

         This 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.

         LAW AND DISCUSSION

         On 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.

         In his 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 them.[2]

         Defendants 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 the court.

         La. 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 78.

         If a 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 145.[3]

         Shortly after questioning of the prospective jurors began, the trial judge stated:

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.

         The 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 instructions?

         The transcript reflects that none of the prospective jurors indicated that he or she could not follow the law as instructed.

         Later, 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.

         The record does not reflect that any prospective juror indicated that he could not follow the law as instructed.

         With 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 ...


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