DAVID E. CHATELAIN,
The defendant driver and his insurer appeal the trial court's determination that the driver was 100% at fault for a center turn lane collision between his vehicle and the plaintiff's. Finding no manifest error in the trial court's findings of fact, we affirm its assessment of fault and its general damage award. We also deny the plaintiff's damages and attorney fees request for a frivolous appeal.
On November 28, 2003, vehicles driven by Nicol Hannie and Ray Guidry collided in the center turn lane on Kaliste Saloom Road in Lafayette as Mr. Hannie attempted to exit a shopping center parking lot situated at the corner of Kaliste Saloom Road and Ambassador Caffery Parkway. Mr. Hannie filed suit for damages against Mr. Guidry and his insurer, State Farm Mutual Automobile Insurance Company.
A trial on the merits was held on November 25, 2009. The parties stipulated that Mr. Hannie's vehicle sustained property damage totaling $19,202.99 and that Mr. Hannie incurred a rental expense of $5,039.05 and medical expenses totaling $1,155.50.
Evidence presented at trial established that the collision occurred on the day after Thanksgiving and that traffic was heavy at the time. Mr. Hannie was exiting the shopping center, intending to turn left onto Kaliste Saloom Road. At that point, Kaliste Saloom Road consists of five lanes, two lanes headed in opposite directions on either side of a designated center turn lane.
Mr. Hannie testified that traffic was stopped in the two traffic lanes he had to cross and was backed up as far as he could see to his left and right. He further testified that motorists in those two lanes provided him an opening to allow him to proceed with his turn, then waved him through the opening. Mr. Hannie related that he proceeded slowly across the two lanes and came to a stop before entering the turn lane. He described the opening in the traffic the motorists created as approximately fifteen or twenty feet. According to Mr. Hannie, he looked to the left and right before entering the turn lane, and, seeing no traffic approaching him, he proceeded forward; the impact took place "instantaneously" as he entered the turn lane. Mr. Hannie testified that he never saw Mr. Guidry's vehicle approaching him.
Todd Landry was in the vehicle immediately behind Mr. Hannie waiting to turn left as Mr. Hannie attempted to exit the parking lot. Mr. Landry testified that the two travel lanes of Kaliste Saloom Road heading toward Ambassador Caffery Parkway were occupied with vehicles as far left and right as he could see. He described the traffic as moving "at a snail's pace."
According to Mr. Landry, Mr. Hannie was at a complete stop at the shopping center exit when two vehicles on Kaliste Saloom Road stopped to allow him to exit. He described Mr. Hannie's maneuver as a "careful process of trying to go through... those vehicles to stop and observe if it's clear." Mr. Landry explained that Mr. Hannie carefully crossed the first lane of travel, then the second lane of travel, stopping and going. As Mr. Hannie was proceeding into the center turn lane, Mr. Landry saw a dark-colored truck exit the travel lane closest to the turn lane "in an erratic" manner, then accelerate quickly and proceed at "a rapid rate of speed," which he thought was "way too fast for the turning lane"; he estimated Mr. Guidry's speed at forty miles per hour. Mr. Landry continued, relating that the turn lane was clear as Mr. Hannie proceeded into it, then "before you could honk the horn or anything there was a big collision" between Mr. Guidry's truck and Mr. Hannie's car. He further testified that before Mr. Guidry entered the turn lane, he (Mr. Guidry) was six or seven vehicles behind the vehicle in the travel lane closest to the turn lane that stopped to allow Mr. Hannie and him to exit the parking lot. Mr. Landry did not see any other vehicles in the turn lane before the accident. Mr. Landry opined that there was nothing Mr. Hannie could have done to avoid the collision.
Mr. Landry next testified that immediately after the collision he exited his vehicle to check on the people involved in the accident and was surprised that rather than asking Mr. Hannie if he was okay, both the driver and the passenger of the truck that collided with Mr. Hannie approached Mr. Hannie "accusing him of pulling out in front of them." Mr. Landry further testified that immediately after the collision, the driver and the passenger stated they were "turning up the road" with no explanation or description of where they were going. Mr. Landry related that at first he overheard Mr. Hannie ask Mr. Guidry why he was traveling in the turn lane if he was going to turn up the road. Later, after he had given his statement to the police, Mr. Landry overheard Mr. Guidry and his passenger state they were going to Sonic, the first establishment they would have encountered in the turn lane from where they were in traffic. Mr. Landry believed Mr. Guidry
Mr. Guidry testified that cars obstructed his view of Mr. Hannie's vehicle. He estimated that Sonic was approximately the distance of three car lengths from where he entered the turn lane and that he traveled at a speed of approximately thirty-five miles per hour in the turn lane. He denied that he was traveling too fast for the traffic conditions, stating, "I was driving at a normal speed[,] and I observed the traffic to ensure that I wasn't going to hit anybody."
On cross-examination, Mr. Guidry agreed that Mr. Hannie cautiously began his turn and inched forward slowly. He also agreed that he could have stayed in the inside travel lane until he got closer to Sonic before entering the turn lane, as there was no place to turn left before Sonic, and Sonic was 697 feet from where he entered the turn lane, not the three to four car lengths he initially stated. Mr. Guidry testified that he first saw Mr. Hannie's vehicle when it was about three car lengths in front of his truck but denied having an opportunity to avoid the collision, testifying that he hit his brakes in an attempt to do so. Mr. Guidry further testified that the vehicles that stopped to let Mr. Hannie exit were large, similar to a Suburban, and prevented him from seeing Mr. Hannie's vehicle as it moved toward the turn lane. He also denied seeing the opening through which Mr. Hannie was proceeding.
Mr. Guidry's passenger, Peggy Prossen, is a resident of Florida; her testimony was presented via video deposition. Ms. Prossen testified that Mr. Guidry's truck was "high enough where I could see out and see a distance" and that she first saw Mr. Hannie moving across the first lane of traffic, then saw him move a second time. She recalled Mr. Guidry being maybe three or four car lengths behind the vehicles that stopped to let Mr. Hannie exit. She stated that however far back they were nothing interfered with her ability to see Mr. Hannie's car and that "probably nothing" prohibited Mr. Guidry from seeing it either. Ms. Prossen described the opening through which Mr. Hannie was proceeding as fifteen to twenty feet wide. She testified that she thought Mr. Hannie made eye contact with her and that at the least, she saw his face looking toward Mr. Guidry's vehicle while stopped in the second lane, then his vehicle jumped out in front of Mr. Guidry's vehicle.
Ms. Prossen further testified that she did not think she would have allowed Mr. Guidry to drive thirty-five miles per hour in the turn lane as he testified he did. According to Ms. Prossen, she and Mr. Guidry planned to go to Sonic earlier that day and that it was to be their final destination. She stated that Mr. Guidry switched lanes when he saw the Sonic restaurant and denied that he was using the turn lane as a passing lane.
After the collision, Ms. Prossen reported to the police that Mr. Hannie and Mr. Landry were friends and had eaten a meal together before the collision. However, both Mr. Hannie and Mr. Landry denied knowing each other before the collision. Ms. Prossen testified that because the men were very nicely dressed, "they did not look like typical Louisiana men," so she assumed that they knew each other.
At the conclusion of the trial, the trial court determined that Mr. Guidry improperly used the center turn lane as a passing lane and found him 100% at fault. The trial court awarded Mr. Hannie special damages as the parties stipulated and general damages in the amount of $9,000.00.
The defendants appealed, assigning error with the trial court's assessment of
The defendants assign as error the trial court's assessment of 100% fault to Mr. Guidry, asserting that he was free from fault. They first argue that the trial court committed legal error in its conclusion of law as to the permissible distance a motorist may travel in a center turn lane when intending to make a left turn from that lane; therefore, they argue that this court should conduct a de novo review of the trial court's assessment of fault. The defendants next argue that even if the manifest error standard of review is applied, Mr. Guidry was completely free from fault.
The trial court prefaced its fault determination with the following explanation of the lane markings where the collision occurred and their meanings:
See La. Driver's Guide "D" and "E," p. 30-33.
After providing its appreciation of the lane markings, the trial court outlined its reasons for determining that Mr. Guidry was 100% at fault for the collision:
(Emphasis added.)
Louisiana Revised Statutes 32:124, as the trial court quoted, governs a driver's entrance to a highway from private property. The use of center turn lanes is governed by La.R.S. 32:82, which provides:
(Emphasis added.)
The defendants first contend that we must conduct a de novo review of the trial court's assessment of fault to Mr. Guidry because the trial court committed an error of law concerning the permissible distance a motorist may travel in a center turn lane. The basis of this contention is the trial court's observation that with regard to the two-way left-turn channelization markings of the center turn lane, it could not "conceive of a situation in which a motorist may lawfully use more than two vehicle lengths of that center lane that contains two-way left-turn to accomplish a left turn maneuver."
The trial court considered the directives contained in the Louisiana Driver's Guide Classes "D" and "E" in determining that Mr. Guidry was improperly using the center turn lane as a passing lane. We have reviewed these directives in light of La. R.S. 32:82 and find them illustrative of the restricted use of center turn lanes. See Brewer v. J.B. Hunt Transp., Inc., 09-1408, 09-1428 (La.3/16/10), 35 So.3d 230, aff'g 08-1666 (La.App. 1 Cir. 3/18/09), 9 So.3d 932 (where the supreme court affirmed the first circuit's de novo determination that both plaintiff and defendant drivers were at fault in causing the accident at issue but increased the fault assessed to the defendant driver; both courts relied on directives set forth in the Driver's Guide for their assessments).
Even though, under the facts of this case, there was no need for the trial court to enunciate a bright-line, two-car-length rule for the execution of a left turn in a center turn lane, we find no error with the
Furthermore, an error involving the application of an incorrect principle of law warrants a de novo review by the appellate court only if legal error was prejudicial, meaning it "materially affect[ed]" the outcome of the trial court's fact finding process and "deprive[d] a party of substantial rights." Evans v. Lungrin, 97-541, p. 7 (La.2/6/98), 708 So.2d 731, 736. As shown by the discussion which follows, if the trial court's conclusion that a motorist who traveled more than two car lengths in a center turn lane without turning did so in violation of La.R.S. 32:82 was legal error, it did not prejudice Mr. Guidry; therefore, a de novo review is not warranted.
The trier of fact's allocation of fault required by La.Civ.Code art. 2323 is a fact determination. Gregor v. Argenot Great Cent. Ins. Co., 02-1138 (La.5/20/03), 851 So.2d 959. Factual determinations in civil cases are reviewed under the manifest error-clearly wrong standard of review. Rando v. Anco Insulations, Inc., 08-1163, 08-1169 (La.5/22/09), 16 So.3d 1065. This standard "precludes the setting aside of the [trial] court's finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety." Id. at 1087.
Review of credibility determinations under the manifest error standard requires that where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Hebert v. Rapides Parish Police Jury, 06-2001, 06-2164 (La.4/11/07), 974 So.2d 635. Unless documents or objective evidence so contradict the witness's story or the story itself is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the witness's story, a fact finder's determination that is based on a credibility determination can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989).
The defendants argue that the trial court's assessment of fault is inaccurate because Mr. Guidry was traveling on the favored street; therefore, they contend that Mr. Hannie owed a higher duty of care than Mr. Guidry.
The care Mr. Hannie owed was addressed by this court in Shelvin v. Allstate Insurance Co., 99-833 (La.App. 3 Cir. 11/3/99), 747 So.2d 160, 162, (quoting Valin v. Barnes, 550 So.2d 352, 355 (La.App. 3 Cir.), writ denied, 552 So.2d 399 (La.1989)) (emphasis added):
Mr. Guidry cannot rely on the presumption drivers may enjoy when they proceed lawfully on a favored street because he was using the center turn lane for passing in contravention of La.R.S. 32:82. Accordingly, Mr. Guidry's claim that he could rely on that presumption is without merit. Furthermore, even if Mr. Guidry had not been using the center turn lane to pass other traffic, he could have been assessed with fault if the facts warranted. See Slagel v. Roberson, 37,791, 37,792, 37,793 (La.App. 2 Cir. 11/18/03), 858 So.2d 1288, writ denied, 03-3508 (La.3/12/04), 869 So.2d 824.
Our review of the record shows that the testimonies of Mr. Hannie and Mr. Landry fully supported the trial court's factual and legal determinations that Mr. Hannie fulfilled his duty of care as he attempted to enter Kaliste Saloom Road and that Mr. Guidry is 100% at fault for the collision because he used the turn lane for passing. In particular, it is clear that the trial court relied primarily on Mr. Landry's testimony in determining fault, finding this disinterested witness's testimony credible. According to Mr. Landry, Mr. Hannie engaged in a "careful process" to make his left turn, and there was nothing more he could have done to avoid the collision. On the other hand, Mr. Landry saw Mr. Guidry exit the travel lane and enter the turn lane "in an erratic" manner from six or seven vehicles behind the vehicles that were stopped to allow Mr. Hannie to turn left, then accelerate quickly and proceed at "a rapid rate of speed," which he thought was "way too fast for the turning lane."
Moreover, Ms. Prossen's and Mr. Guidry's testimonies further support the trial court's fault assessment. Ms. Prossen's testimony shows that she believed traveling thirty-five miles an hour in the center turn lane was too fast. Additionally, Mr. Guidry admitted that he had to travel a distance of 697 feet from where he entered the turn lane before he could make a left turn, and Ms. Prossen's testimony that she could see Mr. Hannie's car at all times discredited his testimony that the vehicles that were stopped to allow Mr. Hannie to turn left were large and blocked his view of Mr. Hannie's car. Hence, all the witnesses' testimonies demonstrate that Mr. Guidry did not act as a reasonable motorist under the circumstances, as he failed to keep a proper lookout and respond accordingly. Allstate Ins. Co. v. Batiste, 96-181 (La.App. 3 Cir. 6/12/96), 676 So.2d 747. See also La.R.S. 32:58 (providing that the failure to drive in a careful and prudent manner constitutes careless operation of a vehicle). For these reasons, the trial court's conclusion that Mr. Guidry was 100% at fault is not manifestly erroneous.
The defendants cite other cases in support of their claim that the trial court's assessment of fault is wrong. As shown below, we find that the cited cases are factually dissimilar and not applicable to this matter. Cripps v. Kennedy, 364 So.2d 243 (La.App. 3 Cir.1978), writ denied, 366 So.2d 917 (La.1979), involved a rear-end collision that occurred when a vehicle exited a parking lot, made a right turn, and was struck by a vehicle exceeding the posted speed limit. This court refused to reverse
In Miller v. Keal, 29,564 (La.App. 2 Cir. 5/7/97), 694 So.2d 569, writ denied, 97-1751 (La.10/13/97), 703 So.2d 620, the court determined that a motorist entering the roadway who relied on other motorists to signal that it was safe for her to enter the center turn lane was 70% at fault for the collision between her vehicle and a vehicle traveling in the turn lane. That is not the case here: Mr. Landry testified that Mr. Hannie did everything he could to avoid a collision and that Mr. Guidry entered the turn lane and accelerated quickly just as Mr. Hannie proceeded into the turn lane. Furthermore, the evidence in Miller established that the center turn lane was "not clearly and properly marked," causing the trial court "some concerns to the benefit of [the defendant driver] as to whether or not he should have been in that portion of the middle lane or not." Id. at 572. Importantly, the trial court found that the "`fact that [the defendant driver] was traveling in the turn lane in and of itself did not cause the accident.'" Id. The trial court in the case now before us found otherwise under the facts presented. We do not find that determination erroneous.
Lastly, in Kyle v. New Hampshire Insurance Co., an unpublished opinion bearing docket number 06-796, 2007 WL 439091 (La.App. 1 Cir. 2/9/07),
Mr. Hannie answered the appeal, seeking an increase in general damages; he complains that the trial court's $9,000.00 general damage award is unreasonably low.
It is well settled that the assessment of damages is a fact determination "entitled to great deference on review." Guillory v. Lee, 09-75, p. 14 (La.6/26/09), 16 So.3d 1104, 1116. Accordingly, when reviewing general damage awards, an appellate court's role is to review the trier of fact's exercise of discretion, not to decide what it considers an appropriate award. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). If there is no clear abuse of discretion in the trier of fact's award, it must stand. Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976).
Mr. Hannie testified that he suffered lacerations to his face, one of his hands, stiffness, soreness in his neck, clavicle
In light of the limited treatment Mr. Hannie sought for his injuries, we cannot say the trial court abused its vast discretion in awarding $9,000.00 for general damages.
As provided in La.Code Civ.P. art. 2164, which allows an appellate court to award damages if an appeal is deemed frivolous, Mr. Hannie also answered this appeal, requesting damages and attorney fees for a frivolous appeal.
It is well settled that appeals are favored in Louisiana. Blane Devillier Trucking, Inc. v. Authement, 03-590 (La. App. 3 Cir. 11/5/03), 858 So.2d 795. Because La.Code Civ.P. art. 2164 is penal in nature, it must be strictly construed. Ray v. Leatherman, 96-542 (La.App. 3 Cir. 10/9/96), 688 So.2d 1133, writ denied, 96-2709 (La.1/6/97), 685 So.2d 123 (citing Hampton v. Greenfield, 618 So.2d 859 (La. 1993)). Pursuant to Article 2164, damages for frivolous appeal may be awarded when there is no serious legal question, when the appeal is taken solely for the purpose of delay, or when it is evident that appellants' counsel does not seriously believe in the position he advocates. Gallien v. Winn-Dixie, 96-832 (La.App. 3 Cir. 12/11/96), 685 So.2d 531.
Although we find no merit in the arguments the defendants presented on appeal, it is clear that defense counsel seriously believes in the position he advocated on behalf of his clients herein. Accordingly, this is not a frivolous appeal, and we cannot award damages and attorney fees.
For these reasons, we find no error with the trial court's assessment of fault or award of general damages, and affirm the judgment of the trial court in all respects. The plaintiff's request for damages and attorney fees is denied. Costs of this appeal are assessed to Ray Guidry and State Farm Mutual Automobile Insurance Company.
