The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
08-566 consolidated with 08-567
ANNA PLAISANCE
VERSUS
ALLSTATE INSURANCE COMPANY, ET AL.
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APPEAL FROM THE
LAKE CHARLES CITY COURT
PARISH OF CALCASIEU, NO. 05-2189 C/W 05-2190
HONORABLE JOHN S. HOOD, CITY COURT JUDGE
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ELIZABETH A. PICKETT
JUDGE
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Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and J. David Painter,
Judges.
AFFIRMED AS AMENDED.
Peters, J., concurs in the result.
Clifford L. Newman
The Newman Law Firm
1925 Enterprise Blvd.
Lake Charles, LA 70601
Counsel for Plaintiff/Appellee:
Anna Plaisance
Mesonie Terrence Halley Jr.
Law Offices of Harold G. Toscano
One Lakeshore Dr., Suite 1710
Lake Charles, LA 70626
Counsel for Defendants/Appellants:
Allstate Insurance Company and
Sally C. Daigle
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Pickett, J.
These two consolidated cases arise out of a rear-end collision on Lake Street
in Lake Charles on October 20, 2004. In this case, number 08-566, Anna Plaisance,
the guest passenger in the lead vehicle, sued Sally C. Daigle, the driver of the
following vehicle, and her insurer, Allstate Insurance Company (Allstate). In case
number 08-567, James C. Gribble, the driver of the lead vehicle, also sued Daigle and
her insurer, Allstate. The trial court found Gribble 75% at fault in the accident and
Daigle 25% at fault. The trial court awarded Gribble $2,576.55 in property damages,
$2,637.92 in medicals, $2,257.50 in lost wages, and $5,000.00 for pain and suffering.
Each award to Gribble was reduced by 75%, the percentage of Gribble’s fault in the
accident. Ms. Plaisance was awarded $2,548.44 in medicals and $3,500.00 for
general damages. Finding that Gribble’s percentage of fault could not be imputed to
his guest passenger, the court refused to reduce the award to Plaisance. Daigle and
Allstate appeal arguing three assignments of error: (1) the trial court erred in not
reducing the award to Ms. Plaisance to 25% of the total awarded in accordance with
the provisions of La.Civ.Code arts. 2323 and 2324; (2) the trial court erred in making
an award to Gribble for property damages in that Gribble admitted he had already
been paid these damages; and (3) the trial court erred in awarding Gribble lost wages
inasmuch as he introduced no independent, supporting documentation of this claim.
We reduce the award to Ms. Plaisance by 75%; we annul the property damage award
to Mr. Gribble inasmuch as he admitted under oath at trial that he had already been
paid by the defendants for his property damage; and we affirm the award of past lost
wages to Mr. Gribble.
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FACTS, LAW, and DISCUSSION
The facts in this case are hotly disputed. The plaintiffs claim their version of
the events leading up to the collision is correct and the defendant claims that her
version of the events is really what took place. The appellate review of such cases
is well settled:
The supreme court set forth the standard of review for an appellate court
when considering a factual finding by the trial court in Rosell v. ESCO,
549 So.2d 840, 844-845 (La.1989) (citations and footnote omitted):
It is well settled that a court of appeal may not set
aside a trial court’s or a jury’s finding of fact in the absence
of “manifest error” or unless it is “clearly wrong,” and
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. The appellate review of fact
is not completed by reading only so much of the record as
will reveal a reasonable factual basis for the finding in the
trial court, but if the trial court or jury findings are
reasonable in light of the record reviewed in its entirety,
the court of appeal may not reverse even though convinced
that had it been sitting as the trier of fact, it would have
weighed the evidence differently. Where there are two
permissible views of the evidence, the factfinder’s choice
between them cannot be manifestly erroneous or clearly
wrong. In applying the manifestly erroneous--clearly
wrong standard to the findings below, appellate courts
must constantly have in mind that their initial review
function is not to decide factual issues de novo.
When findings are based on determinations
regarding the credibility of witnesses, the manifest
error--clearly wrong standard demands great deference to
the trier of fact’s findings; for only the factfinder can be
aware of the variations in demeanor and tone of voice that
bear so heavily on the listener’s understanding and belief
in what is said. Where 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,
the court of appeal may well find manifest error or clear
wrongness even in a finding purportedly based upon a
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credibility determination. But where such factors are not
present, and a factfinder’s finding is based on its decision
to credit the testimony of one of two or more witnesses,
that finding can virtually never be manifestly erroneous or
clearly wrong.
Guilbeaux v. Housing Authority of the City of Opelousas, 07-1235, p. 3 (La.App. 3
Cir. 3/5/08), 978 So.2d 1132, 1135, writ denied, 08-717 (La. 5/30/08), 983 So.2d 898.
With the foregoing in mind we adopt the factual findings of the trial court in
regards to the causation of the accident, i.e., that after Ms. Daigle entered Lake Street
from West School Street, Mr. Gribble passed Ms. Daigle in the left turn lane while
traveling at 40-45 mph. Following his passing maneuver, Mr. Gribble moved back
into the outside lane of traffic and braked suddenly, causing Ms. Daigle to rear-end
his car. It is undisputed that from the intersection of West School and Lake Streets
to the spot of the collision is a distance of less than two blocks (the distance between
the intersection of West School and Lake to the intersection of Julius and Lake, the
closest intersection to the accident, is described by the trial court as “two short ends
of blocks”).
In accordance with its factual findings, the trial court assigned 75% of fault in
the accident to Gribble and 25% to Daigle.
In their first assignment of error, the defendants/appellants argue the trial court
erred in not reducing its award to Ms. Plaisance to 25% of her total damages. We
agree. The trial court correctly stated that Mr. Gribble’s percentage of fault could not
be imputed to Ms. Plaisance, his guest passenger. This is a correct statement of the
law. However, the reduction in Ms. Plaisance’s award is not based upon any
imputation of fault but rather upon the legal relationship between the two tortfeasors
in the accident. The legal relationship between multiple tortfeasors is set forth in La.
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C.C. arts. 2323 and 2324. That relationship was ably explained by our colleagues of
the first circuit in Wooley v. Lucksinger, 06-1167 (La.App. 1 Cir. 5/4/07), 961 So.2d
1228, wherein the court stated as follows:
[Louisiana Civil Code article] 2323 provides as follows:
A. In any action for damages where a person suffers
injury, death, or loss, the degree or percentage of fault of
all persons causing or contributing to the injury, death, or
loss shall be determined, regardless of whether the person
is a party to the action or a nonparty, and regardless of the
person's insolvency, ability to pay, immunity by statute,
including but not limited to the provisions of R.S. 23:1032,
or that the other person’s identity is not known or
reasonably ascertainable. If a person suffers injury, death,
or loss as the result partly of his own negligence and partly
as a result of the fault of another person or persons, the
amount of damages recoverable shall be reduced in
proportion to the degree or percentage of negligence
attributable to the person suffering the injury, death, or
loss.
B. The provisions of Paragraph A shall apply to any claim
for recovery of damages for injury, death, or loss asserted
under any law or legal doctrine or theory of liability,
regardless of the basis of liability.
C. Notwithstanding the provisions of Paragraphs A and B,
if a person suffers injury, death, or loss as a result partly of
his own negligence and partly as a result of the fault of an
intentional tortfeasor, his claim for recovery of damages
shall not be reduced. (Emphasis added.)
Louisiana Civil Code article 2324 provides as follows:
A. He who conspires with another person to commit an
intentional or willful act is answerable, in solido, with that
person, for the damage caused by such act.
B. If liability is not solidary pursuant to Paragraph A, then
liability for damages caused by two or more persons shall
be a joint and divisible obligation. A joint tortfeasor shall
not be liable for more than his degree of fault and shall not
be solidarily liable with any other person for damages
attributable to the fault of such other person, including the
person suffering injury, death, or loss, regardless of such
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other person’s insolvency, ability to pay, degree of fault,
immunity by statute or otherwise, including but not limited
to immunity as provided in R.S. 23:1032, or that the other
person’s identity is not known or reasonably ascertainable.
C. Interruption of prescription against one joint tortfeasor
is effective against all joint tortfeasors. (Emphasis added.)
In Dumas v. State, Dep’t of Culture, Recreation & Tourism,
2002-0563 (La.10/15/02), 828 So.2d 530, . . . the Louisiana Supreme
Court construed La. C.C. arts. 2323 and 2324 and defined the legal
relations of the State and the third party co-obligor hospital as follows:
We find the language of Articles 2323 and 2324(B),
as amended by Act 3, is clear, unambiguous, and does not
lead to absurd consequences. Article 2323 provides that
“[i]n any action for damages ..., the degree of percentage
of fault of all persons causing or contributing to the injury,
death or loss shall be determined, regardless of whether the
person is a party to the action or a nonparty.... The
[foregoing] provisions ... shall apply to any claim ...
asserted under any law or legal doctrine or theory of
liability, regardless of the basis of liability.” (Emphasis
added.) Thus, this article clearly requires that the fault of
every person responsible for a plaintiff’s injuries be
compared, whether or not they are parties, regardless of the
legal theory of liability asserted against each person.
Likewise, the language of Article 2324(B) is equally
clear. It provides that in non-intentional cases, liability for
damages caused by two or more persons shall be a joint
and divisible obligation. Each joint tortfeasor shall not be
liable for more than his degree of fault and shall not be
solidarily liable with any other person for damages
attributable to the fault of that other person. This provision
abolishes solidarity among non-intentional tortfeasors, and
makes each non-intentional tortfeasor liable only for his
own share of the fault, which must be quantified pursuant
to Article 2323.
Wooley, 961 So.2d at 1242-44.
Since Ms. Daigle’s percentage of fault in the accident was set at 25%, she can
only be cast with 25% of Ms. Plaisance’s damages. Accordingly, we reduce Ms.
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Daigle’s liability to Ms. Plaisance to 25% of the total damages awarded to Ms.
Plaisance.
In their second assignment of error, the defendants argue that the trial court
erred in awarding Mr. Gribble property damages in its judgment inasmuch as Mr.
Gribble had already been paid for these damages. We agree. In his testimony at trial,
Mr. Gribble stated that Allstate had already paid his property damages. Making an
award of damages already paid was clear error. Accordingly, we reverse this award.
Finally, the defendants argue that the trial court erred in making an award to
Mr. Gribble for past lost wages. They argue that the award was in error in that Mr.
Gribble presented no documentation or independent testimony to support his claim
and that since the trial court questioned Mr. Gribble’s veracity as to the factual
circumstances of the accident, it should have rejected his testimony as to past lost
wages.
Under Louisiana jurisprudence, damages for lost wages may be
established by any proof which reasonably establishes the claim,
including the plaintiff’s own reasonable testimony. While claims for
past lost wages must be established with some degree of certainty, they
need not be proven with mathematical certainty, but only by such proof
as reasonably establishes the plaintiff’s claim. This award may be
supported by the plaintiff’s detailed and uncorroborated testimony.
Daniels v. Burridge, 00-1089 (La.App. 4 Cir. 3/21/01), 785 So.2d 906,
writ denied, 01-1110 (La.6/1/01), 793 So.2d 201.
Smith v. Ebey, 04-889, pp. 6-7 (La.App. 3 Cir. 12/29/04), 896 So.2d 143, 148.
In the case sub judice Mr. Gribble testified that at the time of the accident he
was working as a cement truck driver delivering cement for Angelle Concrete and
making $10.75 per hour. He stated that he normally worked 60 hours a week, making
40 hours at regular pay and 20 hours at overtime (time and one-half). He explained
that his duties required him to climb a ladder on the truck in order to inspect the
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consistency of the concrete inside the truck in the “sump.” He claimed that pain from
the accident made this difficult and that his repeated trips to the chiropractor finally
led to his discharge. The record establishes he was under chiropractic care for two
months after the accident. He claimed three weeks lost wages. The trial court’s
award for lost wages reflected exactly three weeks lost wages at 60 hours per week.
Even though the trial court questioned Mr. Gribble’s veracity as to the circumstances
of the accident, it evidently believed him regarding lost wages. We cannot say that
this determination was clearly wrong. Accordingly, we affirm the trial court’s award
of past lost wages.
Therefore, for the reasons set forth above, we affirm the award of past lost
wages to Mr. Gribble; we reverse the award of property damages to Mr. Gribble; and
we amend the judgment in favor of Ms. Plaisance to reduce the award against Ms.
Daigle to 25% of Ms. Plaisance’s total damages in accordance with Ms. Daigle’s
degree of fault in the accident. Each party is to bear his/her own costs of this appeal.
AFFIRMED AS AMENDED.
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