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Ivory v. Safeway Insurance Co. of Louisiana

Court of Appeals of Louisiana, Third Circuit

December 18, 2019

EARL IVORY
v.
SAFEWAY INSURANCE COMPANY OF LOUISIANA, ET AL.

          APPEAL FROM THE EUNICE CITY COURT PARISH OF ST. LANDRY, NO. 30, 269-18 HONORABLE MARK T. HOYCHICK, CITY COURT JUDGE.

          Donald Lynn Mayeux Attorney at Law Post Office Drawer Counsel for Plaintiff/Appellee: Earl Ivory.

          Michael Wayne Landry Staff Counsel for Safeway Insurance Counsel for Defendants/Appellants: Safeway Insurance Company of Louisiana Jake Vidrine.

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and Candyce G. Perret, Judges.

          PHYLLIS M. KEATY JUDGE.

         Defendants appeal the trial court's judgment regarding liability and general damages. For the following reasons, the trial court's judgment is affirmed.

         FACTS & PROCEDURAL HISTORY

         This personal injury matter stems from an automobile collision on June 4, 2018, in the Wal-Mart parking lot in Eunice, Louisiana, between Earl Ivory and Jake Vidrine. On July 12, 2018, Ivory filed a petition for damages against Vidrine and his automobile insurer, Safeway Insurance Company of Louisiana (hereinafter collectively referred to as Defendants). Ivory alleged he was driving his 1989 red Chevrolet truck when Vidrine, who was driving a 2010 white Dodge Charger, was traveling at a high rate of speed and crashed into the driver's side door of Ivory's truck. Ivory claimed that Vidrine failed to keep a proper lookout, drove carelessly and recklessly, failed to yield to the right of way, failed to adequately slow down while driving through a parking lot, failed to stop before crashing into Ivory's truck, failed to exercise the last clear chance to avoid the accident, failed to do what Vidrine should have done and see what he should have seen under the circumstances, and any other acts of negligence that would be shown at trial. According to his petition, Ivory sustained personal injuries to his head, neck, back, arms, and legs, which required medical treatment. Ivory sought damages for past, present, and future pain and suffering, disability, mental anguish, anxiety, medical expenses, loss of use and enjoyment, and depreciation of the value of his truck. Defendants answered the petition and disputed liability, causation, damages, coverage, ownership, and model year of the truck operated by Ivory. Defendants further asserted the affirmative defense of "no pay, no play."

         Following a one-day bench trial on April 3, 2019, the trial court denied Defendants' affirmative defense of "no pay no play." It determined that Ivory owned and operated a 1992 Chevy S-10, which was insured by State Farm Mutual Automobile Insurance Company on the date of the accident. The trial court ruled the accident resulted from the comparative fault of both Ivory and Vidrine and assessed each driver fifty percent of the fault. It held that Ivory sustained $20, 000.00 in general damages, $2, 132.90 in medical expenses, and $1, 500.00 in property damages. In light of its finding of comparative fault, the trial court ordered Defendants to pay Ivory $10, 000.00 in general damages, $1, 066.45 in medical expenses, and $750.00 in property damages, plus judicial interest from date of judicial demand until paid. It set the expert witness fee for the testimony of Dr. Reginald Segar to $1, 000.00, as court costs, and ordered Ivory and Defendants to each pay one-half of all court costs. The trial court's judgment was signed on April 22, 2019. It is from this judgment that Defendants appeal.

         On appeal, Defendants assert the following assignments of error:

(1) [T]he trial judge committed legal error in determining that plaintiff proved he was the owner of the vehicle involved in the accident, after the trial judge correctly factually determined that the vehicle involved in the accident was a 1992 Chevy S-10.
(2) [T]he trial judge committed legal error in determining that plaintiff was covered by auto liability insurance after the trial judge correctly factually determined that the vehicle involved in the accident was a 1992 Chevy S-10.
(3) [T]he trial judge committed legal error in awarding any compensatory damages since the plaintiff was uninsured at the time of the accident and the damages for bodily injury did not exceed $15, 000 and the amount for property damage did not exceed $25, 000.
(4) [T]he trial judge committed legal error in failing to determine that Ivory was one hundred percent at fault in causing this accident.

         STANDARD OF REVIEW

         In Duncan v. Kansas City Southern Railway Co., 00-66, pp. 10-11 (La. 10/30/00), 773 So.2d 670, 680-81, the Louisiana Supreme Court explained the standard of review regarding comparative fault determinations as follows:

As with other factual determinations, the trier of fact is vested with much discretion in its allocation of fault. [Clement v. Frey, 95-1119 (La. 1/16/96), 666 So.2d 607]. Therefore, an appellate court should only disturb the trier of fact's allocation of fault when it is clearly wrong or manifestly erroneous. Only after making a determination that the trier of fact's apportionment of fault is clearly wrong can an appellate court disturb the award, and then only to the extent of lowering it or raising it to the highest or lowest point respectively which is reasonably within the trial court's discretion. Clement, 666 So.2d at 611; Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La.1977).

         DISCUSSION

         I. Liability

         In their fourth assignment of error, Defendants contend the trial court committed legal error in failing to determine Ivory was one hundred percent at fault in causing the accident. The trial court determined the accident resulted from the comparative fault ...


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