JAMES L. CANNELLA JUDGE

Transcription

1 NOT DESIGNATED FOR PUBLICATION CHERYL SMITH, wife of/and TYRONE SMITH VERSUS JAMES PATRICK WELLS, ALLSTATE INSURANCE COMPANY and STATE FARM MUTUAL AUTOMOBILE COMPANY NO. 02-CA-1069 FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA f OF APP H CIRCUIT ON APPEAL FROM SECOND PARISH COURT PARISH OF JEFFERSON, STATE OF LOUISIANA DE 5 2 NO , DIVISION "A" HONORABLE ROY M. CASCIO, JUDGE PRESIDING FEBRUARY 25, 2003 JAMES L. CANNELLA JUDGE Panel composed of Judges James L. Cannella, Marion F. Edwards and Clarence E. McManus CHRISTOPHER E. LAWLER CHRISTOPHER P. LAWLER DONOVAN & LAWLER 4640 Rye Street Metairie, Louisiana COUNSEL FOR APPELLANTS MARC E. BELLONI MARTIN L. BROUSSARD, JR. BROUSSARD & ASSOCIATES 3222 Behrman Avenue New Orleans, Louisiana COUNSEL FOR APPELLEES AFFIRMED.

2 In an automobile accident case, the Defendants, James Patrick Wells (Wells) and his insurer, Allstate Insurance Company (Allstate), appeal from judgments on the merits of liability and damages, denying the dismissal of Wells for lack of personal jurisdiction, and denying the motion to annul judgment. We affirm. On April 10, 2000, the Plaintiffs, Cheryl Smith and Tyrone Smith, were traveling on Ames Boulevard in Jefferson Parish when their car was struck by the Defendant at the intersection of Ames and Lapalco Boulevards. At that intersection, Lapalco Boulevard is divided into four westbound lanes and two eastbound lanes. a left turn lane. Two of the westbound lanes are designated a right turn lane and The other two are for through traffic. The westbound and eastbound lanes are separated by a median. Before the accident, Wells had been stopped for a red signal light at the intersection. He was in the right through lane, waiting to proceed through the intersection. As the Plaintiffs crossed the eastbound lanes of the intersection, the median, and the left through lane, their car was struck on the right rear passenger side by Wells, who had proceeded into -2-

3 the intersection. The Plaintiffs and Wells each claimed that they had the green light when entering the intersection, although the Plaintiffs stated that their light turned yellow as they crossed Lapalco Boulevard. On December 11, 2000 in Second Parish Court for the Parish of Jefferson, the Plaintiffs filed suit against the Defendants for their injuries from the collision.i The bench trial took place on July 12, During trial, Allstate moved to have Wells dismissed from the lawsuit, alleging that he had never been served with the suit by the Plaintiff. The motion was denied. Following trial a judgment was rendered in favor of the Plaintiffs, finding Wells to be 100% at fault. Tyrone Smith was awarded $13, in general damages for five months of treatment for neck and back strain and $3, in medical expenses, for a total of $17, Cheryl Smith was awarded $13, for general damages for hip, neck and back injuries and $3, for her medical expenses for a total of $16, The trial judge also awarded the Plaintiffs $ for the treating physician's expert witness fee. The judgment was signed on July 19, The award exceeded the limits of insurance, thus exposing Wells personally to an excess judgment. Subsequently, Wells filed a Motion To Annul Judgment and/or Petition For Nullity based on the lack of service, which was denied. On appeal, the Defendants contend that the trial judge erred in finding Wells 100% at fault, in awarding each Plaintiff $2,500 per month in general damages, and in denying Wells' motion to dismiss. LIABILITY Tyrone Smith testified that he entered the intersection at Ames and Lapalco i The Plaintiffs also sued State Farm Mutual Automobile Insurance Company (State Farm), their liability carrier. State Farm was dismissed after a settlement prior to trial. -3-

4 Boulevards while the signal light was green. He stated that he crossed the eastbound lanes, the median and two of the four westbound lanes. As he went through the right non-turning lane, he was struck by a truck driven by Wells. He testified that the signal light changed to yellow as he was traversing the intersection. Cheryl Smith supported this testimony, although she claimed that the light remained green. According to Tyrone Smith, after his car was hit, he kept driving because a car was directly behind him. He immediately pulled over when a police car flashed its lights and sounded its siren. At this point, the following car had apparently gone around him. Shortly after he was asked to get out of the car by a Jefferson Parish Sheriff's Office (JPSO) deputy who had arrived to investigate the accident. field sobriety test, which he passed. Officer Darren Allo asked him to complete a Wells was not asked to take the field sobriety test. The front of the Wells car hit the Smiths' car on the right rear passenger side. Wells testified that had been stopped in the right non-turning lane at the red light. Next to him in the left non-turning lane was a van that obscured his view of the approaching traffic on Ames Boulevard. When the light turned green, he was unable to see if the way was clear, so he relied on the van next to him to gauge whether to accelerate into the intersection. When the van moved forward, so did he. However, the van stopped and Wells ran into the Plaintiffs' car as it crossed his lane of travel. Wells stated that when Tyrone Smith got out of his car, his groin area was wet and he noticed a beer bottle on the floor of the Plaintiffs' car. Officer Chris Benoit, an off-duty Westwego police officer, was stopped several cars behind Wells, waiting for the light to turn green. He testified that the Lapalco Boulevard light was green when Wells entered the intersection. He -4-

5 said that he noticed cars in the left lanes slam on their brakes after the light turned green. He guessed that Wells' vision of oncoming traffic was blocked, stating that Wells probably could not see "through the other vehicle, I don't know." After the collision, Officer Benoit followed the Plaintiffs' car and stopped it approximately 1/10th Of a mile from the intersection. He also contacted the JPSO to investigate the accident. When a JPSO officer arrived, Officer Benoit left because he was on his way "somewhere else." Officer Allo had no independent recollection of the events. He testified that he asked Tyrone Smith to take the field sobriety test, but was unable to state why, as he did not smell alcohol or observe any other suspicious behavior. Tyrone Smith passed the test. However, the officer's investigation disclosed that Tyrone Smith was driving with a suspended license, for which he was given a ticket. In accordance with JPSO policy, he also cited Tyrone Smith for a red light violation, based on his statement that the light was yellow when he entered the intersection. He said that he spoke to all of the parties, but did not list the names of any witnesses. He did not give Wells a citation. The report failed to reflect that Wells' vision was obscured by the van in the left lane when he entered the intersection. On appellate review, the court's function is to determine whether the findings of the trier of fact were clearly wrong or manifestly erroneous. Matta v. Snow, , p. 7 (La.App. 5 Cir. 1/15/02),807 So.2d 934, 938; Brown v. Seimers, , p. 6 (La.App. 5th Cir.1/13/99), 726 So. 2d 1018, 1021, writ denied, (La.4/1/99), 742 So. 2d 556; Rosell v. ESCO, 549 So. 2d 840, 844 (La.1989). Where there is a 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 -5-

6 are as reasonable. Matta, at p. 7, 807 So.2d at 938; Brown, at p. 6, 726 So. 2d 1018 at 1021; Rosell, 549 So. 2d at 844. The issue to be resolved by the reviewing court is not whether the factfinder was right or wrong, but whether its conclusion was a reasonable one. Matta, at p. 7, 807 So.2d at 938; Brown, at p So. 2d 1018 at 1021; Stobart v. State, Through DOTD, 617 So. 2d 880, 882 (La.1993). Thus, where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Matta, at p. 8, 807 So.2d at 939; Brown, at p.6726 So.2d 1018 at 1021; Stobart, 617 So. 2d at 882. Only where the documents or objective evidence so contradict a witness's story, or the story itself is so internally inconsistent or implausible on its face that a reasonable factfinder would not credit the witness's story, may the court of appeal find manifest error, even in a finding purportedly based upon a credibility determination. Matta, at p. 8, 807 So.2d at 939; Brown, at p. 7, 726 So. 2d 1018 at 1021; Rosell, 549 So. 2d at In Bordelon v. Aetna Cas. & Sur. Co., 494 So.2d 1283 (La.App. 2nd Cir.1986), the Second Circuit held that "a motorist who enters an intersection under a green light does not have a duty to observe traffic not yet in the intersection, however, the motorist does have a duty to allow traffic already in the intersection at the time of the light change to complete its crossing. A motorist who enters an intersection without waiting for the traffic already in the intersection to clear the intersection is negligent." (Citation omitted). See also: Horton v. State Farm, 25,943 (La.App.2nd Cir.08/17/94), 641 So.2d 993, 999; Bernard v. City of Lafayette, , p. 6 (La.App. 3rd Cir. 5/5/99), 735 So.2d 804, 808. The trial judge specifically found that Tyrone Smith did not run a red light. He concluded that Smith's car had preempted the intersection when it was struck. He further determined that Wells had a duty to avoid entering the intersection -6-

7 first saw them on April 24, 2000, two weeks after the accident. His records reflect that both Plaintiffs visited him on the same days throughout their treatment. Dr. Trice stated that couples usually schedule their appointments together when they seek treatment from the same doctor. Dr. Trice further noted until he was sure that it was safe to do so, but that he failed in this duty by taking a chance in proceeding when he was unable to see if the intersection was clear. Because there were two permissible plausible views of the evidence in this case, and there is no other evidence to indicate that the trial judge erred in his factual findings, we cannot find that his factual findings are clearly wrong. Therefore, we find that the trial judge was not manifestly erroneous in assessing liability against the Defendants. DAMAGES The standard for the review of damage awards is whether, after an articulated analysis of the facts, the appellate court fmds that the trial judge abused his great discretion. Matta, at p. 8, 807 So.2d at 939; Theriot v. Allstate Ins. Co., 625 So. 2d 1337, 1340 (La.1993). This determination is made with consideration to the individual circumstances of the injured plaintiff. Matta, at p. 9, 807 So.2d at 939; Theriot, 625 So.2d at After an analysis of the facts and circumstances peculiar to the particular case and the particular plaintiff, an appellate court may conclude that the award is inadequate (or excessive). Matta, at p. 9, 807 So.2d at 939; Theriot, 625 So. 2d at Only then does the appellate court resort to prior awards, and then only for the purpose of determining the highest or lowest point which is reasonably within that discretion. Matta, at p. 9, 807 So.2d at 939;Theriot, 625 So. 2d at Dr. Juniper Olyen Trice,a physician specializing in internal and sports medicine, treated Tyrone and Cheryl Smith for their injuries. He testified that he -7-

8 that Tyrone Smith was a pipefitter and Cheryl Smith worked as a housekeeper in a hospital. During the first visit, Dr. Trice observed spasms in Tyrone Smith's neck and in the muscles along the sides of the lumbar spine. He diagnosed a mild to moderate cervical and lumbar strain and prescribed physical therapy, roller traction, heat packs and anti-inflamatory medications. Cheryl Smith was suffering pain in both hips, right low leg pain, low and center back pain and neck discomfort. He noted that she was on the side of the car that was struck and was strapped into her seat belt. The doctor diagnosed Cheryl Smith with trauma induced bi-lateral greater trochanter enteric bursitis and mild neck strain. She was given a combination analgesic and anti-inflammatory medication and treated with physical therapy. He treated both patients until their symptoms resolved and discharged both on September 20, 2000, Cheryl Smith had no residual complaints. At the time of discharge, Tyrone Smith suffered from low back pain with prolonged flexion, which occurred when he had to bend to perform his job as a pipefitter. Both Plaintiffs explained the delay in seeking treatment. They indicated that although the symptoms existed after the accident, they thought the pain would resolve without medical care. The evidence of the injuries was neither contradicted nor impeached. The trial judge determined that each Plaintiff was entitled to $2,500 for each month of injury, or $13,750, plus medical bills. Based on these particular facts, we find no abuse of the trial judge's discretion in the award of damages. PERSONAL JURISDICTION The Defendants contend that the trial judge erred in failing to dismiss Wells for lack of service. The trial judge found that Wells waived this objection -8-

9 by appearing at the trial and by a motion filed by Allstate alleging that all parties had been joined. La.C.C.P. art. 6(A) states: A. Jurisdiction over the person is the legal power and authority of a court to render a personal judgment against a party to an action or proceeding. The exercise of this jurisdiction requires: (1) The service of process on the defendant, or on his agent for the service of process, or the express waiver of citation and service under Article (2) The service of process on the attorney at law appointed by the court to defend an action or proceeding brought against an absent or incompetent defendant who is domiciled in this state. (3) The submission of the party to the jurisdiction of the court by commencing an action or by the waiver of objection to the jurisdiction by failure to timely file the declinatory exception. Generally, without citation and service, all civil proceedings are null. La.C.C.P. art This article further states that the defendant may expressly waive citation and service by any written waiver made part of the record. However, if a defendant has not been served with process as required by law, and has not waived objection to jurisdiction, a final judgment rendered against that defendant is null and void. La.C.C.P. art A(2). As a general rule, an action to annul a judgment on the grounds listed in C.C.P. art may be brought at any time. C.C.P. art B. Prior to its repeal, La.C.C.P. art. 7 set out methods to waive the objection. However, the Editor's Notes under La.C.C.P. art indicate that the nullity action is obviated by the submission of the party to the exercise ofjurisdiction, which would include the failure to file the declinatory exception of insufficient service of process. The declinatory exception must be filed "prior to or in the answer and, prior to or along with the filing of any pleading seeking relief..." La.C.Cr.P. art. 928 A. That was not done in this case. -9-

10 In addition, in Poret v. Billy Ray Bedsole Timber Contractor, Inc., 31531, p. 2 (La.App. 2nd Cir. 1/22/99), 729 So.2d 632, 634, the court held that, although the waiver through a general appearance was eliminated by the repeal of La.C.C.P. art. 7, a party can still waive an objection to the jurisdiction by an appearance of record. The court stated that an appearance of record includes filing a pleading, appearing at a hearing, or formally enrolling as counsel of record, citing La.C.C.P. art. 1671, Official Comment. The Fourth Circuit followed this holding in Glass v. Alton Ochsner Medical Foundation, (La.App. 4th Cir. 11/6/02), 2002 WL , _ So.2d _. We agree that the principles still apply. In this case, Allstate filed the motion to set for trial asserting that g issues and parties were properly joined. In court, when the trial judge called the case for trial, Wells sat mute, next to counsel for Allstate. He was described by counsel for Allstate as "Mr. James Wells, who is insured by Allstate Insurance Company is at the table." Furthermore, Wells did not file a declinatory exception of lack of service. Even if that failure is not sufficient to obviate the nullity for lack of service in this case, which we find that it is, his waiver is presumed. He was kept informed about the proceedings by Allstate, his insurer, and he participated in the greater part of the trial without objection. Thus, we find that the trial judge did not err in denying the motion to dismiss Wells during the trial for lack of personal jurisdiction and in denying the motion to annul judgment, filed after judgment on the merits was rendered. Accordingly, the judgments on the merits, denying the motion to dismiss Wells for lack of personal jurisdiction, and denying the motion to annul judgment are hereby affirmed. Costs of appeal are to be paid by Allstate. AFFIRMED. -10-

11 EDWARD A. DUFRESNE. JR. CHIEF JUDGE SQL GOTHARD JAMES L. CANNELLA THOMAS F. DALEY MARION F. EDWARDS SUSAN M. CHEHARDY CLARENCE E. McMANUS WALTER J. ROTHSCHILD JUDGES Glourt of Appeal FIFTH CIRCUIT STATE OF LOUISIANA 101 DERBIGNY STREET (70053) POST OFFICE BOX 489 GRETNA, LOUISIANA PETER J. FITZGERALD, JR. CLERK OF COURT GENEVIEVE L. VERRETTE CHIEF DEPUTY CLERK GLYN RAE WAGUESPACK FIRST DEPUTY CLERK JERROLD B. PETERSON DIRECTOR OF CENTRAL STAFF (504) (504) FAX CERTIFICATE I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN MAILED OR DELIVERED THIS DAY FEBRUARY 25, 2003 TO ALL COUNSEL OF RECORD AND TO ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW: PE J. ERA 'Áll. UR CO U.S. Postal Service CERTIFIED MAIL RECElPT (Domestic Mail Only; No Insurance Coverage Provided) o U.S. Postal Service CERTIFIED MAIL RECEIPT (Domestic Mail Only; No Insurance Coverage Provided) L Postage $ Postage $ 2 Retu, Mr. Martin L. Broussard, Jr (Endorser Mr. Marc E. Belloni O (ERedstricg Attorneys at Law 3222 Behrman Place.-i Total P< New Orleans, LA L r Sent To L L Re (Endors (ERned" Total Sent To Certified Fee Mr. Christopher E. Lawler Attorney at Law 4640 Rye Street Metairie, LA or PO Box No. Street, Apt No.; or PO Box No.