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Smith v. Kepney

Court of Appeals of Louisiana, Second Circuit

January 16, 2019

TIMOTHY SMITH Plaintiff-Appellee
v.
DERRICK KEPNEY AND EAN HOLDINGS, LLC AND BERNARD KINSEY AND SAFEWAY INSURANCE COMPANY OF LOUISIANA Defendant-Appellant

          Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 588621 Honorable Ramon Lafitte, Judge

          STAFF COUNSEL FOR SAFEWAY INSURANCE COMPANY By: W. Brett Cain Counsel for Appellants Safeway Insurance Company and Bernard Kinsey

          OFFICE OF F.Q. HOOD, JR., APLC By: Christopher C. Broughton Counsel for Appellee Timothy Smith

          STEPHEN T. COLLINS & ASSOCIATES, APLC By: Stephen Thomas Collins SEABAUGH, JOFFRION, AND SEPULVADO By: Alan Thomas Seabaugh Counsel for Appellee State Farm Mutual Automobile Insurance Company

          Before MOORE, STONE, and COX, JJ.

          STONE, J.

         The appellant-defendant, Safeway Insurance Company of Louisiana, appeals that portion of the trial court judgment which granted the plaintiff, Timothy Smith, $5, 295 in diminution of value damages. For the following reasons, we affirm.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         On July 2, 2015, a chain reaction occurred when a 1993 Honda Civic, operated by defendant Bernard Kinsey ("Kinsey") and owned by his wife, Devonda Kinsey, rear-ended a 2015 Jeep Patriot driven by defendant Derrick Kepney ("Kepney"). Kepney's vehicle then rear-ended a 2014 Chevy Camaro owned and operated by plaintiff, Timothy Smith ("Smith"). Smith's 2014 Chevy Camaro ("Camaro") was initially repaired at Brock's Collision Center; however, upon completion of the repair, Smith was not satisfied with the paint job. He then took his car to Red River Collision Center, where the paint job was correctly repaired.

         On November 3, 2015, Smith filed a suit for damages naming as defendants Kepney and Kepney's insurer, EAN Holdings, L.L.C. ("EAN"), and Kinsey and Kinsey's insurer, Safeway Insurance Company ("Safeway"). On November 17, 2015, Kepney filed an answer denying the allegations set forth in Smith's petition. On November 25, 2015, EAN filed an answer to Smith's petition for damages denying the allegations set forth in the petition, and specifically pleading the affirmative defense of the sudden emergency doctrine. Finally, on December 8, 2015, Safeway filed its answer to Smith's petition for damages.

         At trial, Smith testified that he considered selling the Camaro, and purchasing a new vehicle, but he chose instead to keep the Camaro.

         However, Smith did maintain the possibility of selling the Camaro in the future. David Vandergracht ("Vandergracht"), an automotive appraisal and diminished value damages expert, testified that he examined the Camaro and determine a diminished value of the vehicle of $5, 295. Vandergracht testified that he arrived at that calculation by taking into consideration the value of the vehicle, the amount of damage, the severity of damage, and the mileage of the vehicle.

         On August 23, 2017, after a trial on the merits, the trial court found Kinsey to be 100% at fault for the accident. In addition, the trial court assessed damages, and awarded Smith $5, 295 in diminution of value damages. The final judgment of the trial court was ...


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