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Doucet v. Hornet Service Co.

Court of Appeals of Louisiana, Third Circuit

November 20, 2019

KELLY DOUCET, ET AL.
v.
HORNET SERVICE COMPANY, ET AL.

          APPEAL FROM THE THIRTY-FIRST JUDICIAL DISTRICT COURT PARISH OF JEFFERSON DAVIS, NO. C-107-14 HONORABLE C. STEVE GUNNELL, DISTRICT JUDGE

          Kenneth A. Doggett, Jr. Attorney at Law Counsel for Plaintiffs/Appellants: Kelly Doucet Brittany Lacombe

          Patrick T. Daniel Rachel Martin-Deckelmann Daniel & Associates Counsel for Plaintiff/Appellant: Michael Ceasar

          Michael J. Remondet, Jr. Jeansonne & Remondet COUNSEL FOR DEFENDANTS/APPELLEES: Colony Insurance Company Kenneth DeMary Hornet Service Company, LLC

          Court composed of Shannon J. Gremillion, Candyce G. Perret, and Jonathan W. Perry, Judges.

          SHANNON J. GREMILLION JUDGE

         Plaintiffs/appellants, Kelly Doucet and Brittany Lacombe, appeal the trial court's judgment in favor of defendants/appellees, Kenneth DeMary, Hornet Service Company, and Colony Insurance Company. Plaintiff/appellant, Michael Ceasar, appeals the jury's verdict in favor of defendants/appellees. These matters were tried in a bifurcated proceeding. For the reasons that follow, we affirm.

         FACTS AND PROCEDURAL POSTURE

         This case asserts claims for personal injuries that appellants alleged they incurred in a motor vehicle accident on March 5, 2013, in the parking lot of Chad's Pawn Shop in Jennings, Louisiana. DeMary, an employee of Hornet Service Company, was driving a 2007 Dodge Ram 2500 company-owned truck on a personal mission to pay a bill owed to Chad's. While in Chad's, DeMary overheard Doucet discussing a prior accident and her need to retain an attorney to represent her in connection with that accident. Appellants testified that Doucet never even entered Chad's and that she and Ceasar remained in Doucet's vehicle while Lacombe and another passenger, Akeem Nixon, entered Chad's to pawn a DVD player and some discs.

         As DeMary was leaving Chad's, he testified, his truck was idling in reverse. Although he had checked behind him to ensure he could back out safely and saw no vehicles behind him, DeMary struck the vehicle occupied by the appellants. Appellants testified that their vehicle, owned by Doucet, was the third vehicle in a line attempting to exit the lot and that they were completely stopped behind DeMary's vehicle when he backed into them. Ceasar testified that the force with which DeMary struck them almost rolled Doucet's vehicle over. This impact, though, created a barely discernable, fist-sized dent in the passenger-side door of Doucet's car roughly the size of DeMary's trailer-hitch ball.

         Doucet's car had other damage along the passenger side. Appellants denied that any damage to the door pre-existed the subject collision. However, Sergeant Ricky Benoit of the Jennings Police Department, who responded to the accident, had worked another collision on February 24, 2013, in which Doucet's car received moderate side-swipe damage to the passenger side, including the front passenger door and front fender. Doucet denied that the door was damaged in the February collision.

         Sergeant Benoit testified that he was dispatched to Chad's regarding the subject accident. The Jennings Police Department's policy is that Louisiana Uniform Crash Reports are only prepared following a collision on private property if there are injuries. While Sergeant Benoit had little recollection of the accident at trial-five years later-he was aware that he did not prepare a report, which means that no one reported any injuries at the scene. Appellants each testified that Sergeant Benoit did not ask whether they were injured.

         None of the plaintiffs sought any treatment for injuries alleged to have been incurred in this accident for over a month. Lacombe, however, did go to the emergency room at Jennings American Legion Hospital, complaining only of right rib pain and denying that she suffered any trauma. All three plaintiffs saw Dr. Charles Deese, a Jennings chiropractor, for neck and back complaints. All three then saw Dr. David Barczyk, a Lafayette chiropractor. All three then saw Dr. Donald Dietze, a neurosurgeon in Baton Rouge who later stopped seeing patients in that city in favor of Lacombe, Louisiana, where he apparently continued to treat plaintiffs up to the date of trial. All three were diagnosed by Dr. Dietze with cervical disc disorders. Ceasar was also diagnosed with a lumbar disc herniation at the L5-S1 level for which an anterior discectomy and intervertebral body fusion was performed by Dr. Dietze in December 2014.

          Plaintiffs cumulated the present action with the filing of a joint petition for damages on February 21, 2014. During the course of the litigation, the parties vigorously contested issues that were deemed by this court to be "excessive" and "frivolous," including the claim that DeMary was intoxicated and the applicability of the Federal Motor Carrier Act. Doucet v. Hornet Serv. Co., 19-241, p. 6 (La.App. 3 Cir. 5/22/19), 273 So.3d 378, 382. (Holding that the trial court did not err in revoking Ceasar's pauper status and that he was not entitled to a reduction in the estimated appeal costs of $56, 225.50 in the present matter because of his abuse of the integrity of the judicial process).

         Among the contested minutiae was the entitlement of Defendants to obtain independent medical examinations (IME) of Doucet and Ceasar by Dr. Michael Holland, an orthopedic surgeon in Jennings. After having been ordered to submit to an IME, Doucet and Ceasar refused to cooperate in the examination. Ceasar had been instructed to not speak to Dr. Holland, and he followed those instructions. Doucet refused to don a clinical gown for the examination. Dr. Holland was unable to even ascertain that Ceasar had undergone lumbar disc surgery because of the limitations he encountered in his IME. The parties also bickered about Dr. Holland's deposition, which will be discussed more fully later.

         The matter eventually was tried, beginning on August 20, 2018. Ceasar's case was tried to a jury, while Doucet's and Lacombe's to the trial court judge. At trial, the deposition of Dr. Dietze was presented to the jury regarding his treatment of Ceasar. Dr. Holland testified in person. The jury returned a verdict on August 23, 2018, in which they found that neither DeMary nor Doucet were negligent. The trial court took Doucet's and Lacombe's cases under advisement. On October 12, 2018, the trial court issued the following written reasons, quoted in pertinent part:

After reviewing the testimony, evidence, and arguments of counsel, the Court makes the following findings in this case. The jury's verdict found that none of the drivers -DOUCET, DEMARY, or HORNET SERVICE COMPANY-were negligent. As a result, no damages were awarded to the plaintiff CEASAR. The plaintiffs have the burden of proof to show by a preponderance of the evidence that DEMARY was at fault for causing the accident and that the plaintiff suffered damages as a result. The Court can only speculate that CEASAR failed to carry that burden in front of the jury which resulted in their verdict.
As to the remaining plaintiffs, the Court finds that DEMARY, as a driver who is backing up his vehicle, had a duty of care and attention and to make sure that it was safe to back his vehicle. At the same time, DOUCET also had a duty to take reasonable steps to avoid the accident if she saw that DEMARY was backing up in the parking lot. Both DEMARY and DOUCET testified at trial that they had looked around before beginning to drive their vehicles and that neither one saw the other before the accident. Given the conflicting testimony and evidence presented at trial, the Court finds that DEMARY and DOUCET should each be found 50% at fault for causing this accident. Both drivers had a duty to see what should have been seen, and both drivers failed to perform this duty.
The plaintiffs also claimed that DEMARY was in the course and scope of his employment at the time of the accident, and therefore, HORNET SERVICE COMPANY should also bear some liability for the accident as well. The testimony at trial by DEMARY was that he was at Chad's Pawn Shop on March 5, 2013, in order to pay a personal bill. DEMARY stated that he was not on-call at the time of the accident and that he was a permissive user of the company vehicle. The Court finds that there was no credible testimony by any witness at trial to dispute DEMARY's version of events that he was conducting a personal errand at the time of the accident. Consequently, the Court finds that DEMARY was not in the course and scope of his employment at the time of the accident.
As to the issue of damages, as stated above, this was a low-speed, low-impact accident in the parking lot of Chad's Pawn Shop. At trial, all of the plaintiffs testified that the impact was so hard that it almost flipped the car. They also testified that there was no prior damage to the vehicle before this accident. However, the defendants called Officer Ricky Benoit of the Jennings Police Department as a witness, and he testified that DOUCET had been in another accident in the same vehicle a few weeks prior to the instant accident. The prior accident was described as a "side-swipe" accident that resulted in moderate damage to the same door panel that was affected in the instant accident. There were several pictures of the vehicle and door panel presented at trial, and after review, the Court believes that most of the damage to the vehicle was a result of the previous accident. There was minimal damage to the vehicle as a result of the parking lot accident, and the testimony of the plaintiffs about the severity of the accident was not believable to the Court.
In addition, the Court had several problems with the credibility of DOUCET and LACOMBE with regard to the alleged damages they claimed they sustained. Both DOUCET's and LACOMBE's medical records for the years prior to the instant accident were introduced by the defense at trial. DOUCET alone visited the emergency room of the Jennings American Legion Hospital thirty-one (31) times in the few years before and after the accident for issues such as toothaches, falls, and bruised fingers; however, she did not go for medical care after the accident in question until over a month had passed. Furthermore, some of the injuries that DOUCET claimed were a result of this accident (spinal, shoulder, neck, and knee injuries) were also reported previously to the doctors in the ER in the years before the accident. Finally, the defense's expert, Dr. Michael Holland, testified that his professional opinion was that DOUCET was not injured as a result of this accident. DOUCET also refused to be physically examined by Dr. Holland during an IME on the advice of her attorney. Consequently, the Court finds that DOUCET was not a credible witness and that she did not suffer any damages as a result of the accident in question.
With regard to LACOMBE, the Court makes similar findings. LACOMBE had fifteen (15) visits to the ER in the few years prior to the accident for issues such as bug bites, ulcers, and a sore throat. Three (3) days after the accident, LACOMBE went to the hospital for her alleged injuries. According to her own testimony, the ER doctors sent her home because she was not injured. In addition, LACOMBE was also a passenger in DOUCET's vehicle in the prior side-swipe accident that caused moderate damage. Based upon her own testimony and the medical records, the Court finds that LACOMBE was not a credible witness and that she did not suffer any damages as a result of the accident in question. The Court finds that both DOUCET and LACOMBE were untruthful in their testimony and that their version of events was not believable.

         Ceasar filed a motion for new trial and for judgment notwithstanding the verdict on September 10, 2018. That motion was heard by the trial court on September 25. Although the transcript of that hearing is not contained in the record, the minutes are, and they reflect that the trial court felt that the credibility of Ceasar, Doucet, and Lacombe were seriously questioned not only by the trial court but also the jury. Ceasar's motion was denied.

         Appellants then perfected devolutive appeals.

         ASSIGNMENTS OF ERROR

Ceasar presents the following as his assignments of error:
1. A de novo analysis is mandated to harmonize irreconcilable/inconsistent verdicts in bifurcated trials when the jury found NO party at fault and the judge apportioned fault 50/50 between the parties.
2. The jury's analysis was manifestly erroneous because it assigned NO fault to any party and fault did not reach 100% as demanded by the Louisiana Supreme Court in its ...

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