Robert and Sandra Daniel, Individually and On Behalf of Their Minor Daughter, Dianne Daniel VS Andrew Monistere, Mark Lewis and National Fire & Marine Insurance Company
Annotate this Case
Download PDF
NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 0442 ROBERT T DANIEL and SANDRA DANIEL behalf of their minor daughter individually and on DIANNE DANIEL VERSUS ANDREW MONISTERE MARK LEWIS and NATIONAL FIRE MARINE INSURANCE CO Judgment On Rendered February 14 2007 Appeal from the Twenty First Judicial District Court In and For the Parish of Livingston State of Louisiana Docket No 84 920 Honorable Zorraine M John Smith Baton Rouge Waguespack Judge Presiding Counsel for Plaintiffs LA Appellees Robert T Daniel and Sandra Daniel of their individually and on behalf minor daughter Dianne Daniel Leo R McAloon III Counsel for Defendant New Orleans LA Mark Lewis BEFORE 17 r J vtr l Appellant PARRO GUIDRY AND McCLENDON JJ 4A4 Goy1 lA McCLENDON J Appellant seeks as being manifestly to have a finding of the trial For the erroneous judgment of the trial factual that follow reasons overturned court affirm the we court FACTS AND PROCEDURAL HISTORY Appellant Mark Lewis owned involved in 25 1998 an accident on 1995 Wellcraft Scarab which a the Tickfaw River in Andrew Monistere was Tangipahoa Parish Sandra Daniel individually and Daniel petition filed a for on behalf of their minor damages on March 1 Marine Insurance Lewis and National Fire daughter 1999 Plaintiffs further asserted May 28 1999 Lewis filed notifying the trial court of a a Company National that National partial dismissal 1 2 as to 2 Notice of by on the Wellcraft Scarab for May were on abandoned 18 1999 executed ofthe amount the across Daniel and his had in effect Stay Order in this a limitation of Subsequently plaintiffs The Order Directing Issuance ofNotice and the federal court In their a matter stay order issued by the United States District National and The claims of Sandra Daniel to cut 1 Lewis Court for the Middle District of Louisiana where proceeding had been filed Monistere against path of the Daniels causing serious injury comprehensive liability policy issued to On Daniel and daughter Dianne petition plaintiffs asserted that Monistere without warning river into the May operating the vessel when it collided with operated by the plaintiff Robert Terry Daniel another boat on was prior an in the a motion for 1999 National was to trial Restraining Prosecution accepted by Lewis provided for November 24 filed liability Ad Interim principal ofClaims Stipulation amount of signed ofthe value of 22 000 provided notice to all interested persons and stayed the contesting prosecution of any other claims until the hearing and determination of the limitation proceeding 2 dismissed this from matter 3 Thereafter Lewis reconventional demand and third party demand A bench trial under advisement 4 was held on Judgment rendered and the accident and Daniel 2 Lewis was 15 000 00 in court did not to be 25 at as follows fault in the at property damage and from Monistere exemplary damages award Lewis the taken fault 14 000 00 in awarded answer matter was May 4 2005 on The trial court found Monistere to be 75 1 an against Monistere March 8 2005 was filed The trial alleged 6 000 00 he he lost in did it award any exemplary damages to Lewis from Daniel Daniel s claim for exemplary damages was the sale of his boat nor also denied 3 Dianne Daniel was awarded 30 000 00 in special damages in the amount of 180 000 00 in damages for pain and suffering 16 000 00 and general damages and damages 4 Daniel was 233 00 in 5 The trial special damages and D efendant court s sic the judgment Lewis sought a to amend the clarification of the September The trial 1 4 not judgment in several trial and a motion permission Lewis to use asked the trial motion for court amend Judgment amended the judgment as amend Lewis boat 26 2005 the trial court denied Lewis to to asserting that the evidence clearly trial have new May 4 2005 Following was signed on a We note that to reflect that counsel no copy of any for hearing on new trial but October 12 2005 follows representation of counsel for represented only Lewis policy ofinsurance Monistere did not appear for trial 3 was ever made a In court The trial court corrected the Lewis 3 motion for on respects granted his motion judgment for judgment reasons a new established that Monistere did motion cast for all costs were also issued written Thereafter Lewis filed his 3 500 00 in awarded exemplary part ofthe record The trial 2 court defendant is clarified its responsible judgment for its that each Y2 of the recoverable to costs as respective so costs 3 The trial court entered in favor of Lewis and contribution and Lewis an order against granting Monistere a on default Lewis judgment claims for indemnity appealed DISCUSSION In its reasons for judgment the trial court made the following finding of fact The Court finds by a preponderance of the evidence that Mark Lewis Lewis did in fact give permission to Andrew Monistere Monistere to use his boat Testimony adduced at trial shows that Monistere had used Lewis boat on prior occasions and Monistere had indicated going to use the boat on Lewis that he to was Although the date of the accident worker that Monistere told Lewis he would be using the boat rather than asking him Lewis never informed Monistere that he could not use the boat Lewis remarked to a co appeal Lewis contends that the trial In this finding that Lewis granted permission seeks use reversal of the a the boat This is the sole While review we of factual responsibility boat is 2082 not on appellate court a granted us on a n trial was to clearly wrong He his boat use Monistere in permission to assignment of error determinations Lewis that judgment of Monistere is appropriate standard for the manifest nothing in the judgment imposing before provides that Lewis agree with Lewis that the standard there is a ruling to court Therefore the issue of the error appellate clearly any fault or permissive wrong financial use of the appeal Louisiana Code of Civil Procedure Article appeal is the exercise of the right of a party court Emphasis revised modified added A judgment separate and distinct documents aside and LSA C C P are two are taken from the judgment not the written 4 set reasons or reversed reasons art to for 1918 have by an judgment Appeals for judgment See LSA C C P 2082 arts Greater New Orleans 2083 Olivier 02 2795 p 3 La State Bd 5 forth the basis for the court American Maintenance and 23 9 Reasons for judgment 6 holding and s issue of permission is crucial judgment and 487 p 3 La not Further reasons Lewis not was we La on See 7 p La only set v 1 Cir App Ranger can Ins only rule Co not consider the issue we on the on State v 06 899 So 2d 626 628 whether Thus before this properly appea1 6 See Martin 850 So 2d 1106 1111 writ 860 So 2d 550 assignment of error is without merit There being appeal the See also Johnson judgment boat is 2 Cir 7 23 03 App court 941 So 2d 182 185 Lewis to of any reference App 4 Cir 3 16 05 to use denied 03 2374 La 112103 raised ruling for cannot Brister 37 011 p 6 La This appellate found liable in this permission Consequently judgment an as App 3 Cir 10 1106 Monistere had v its Henderson 04 1723 p 4 S 04 1785 Inc Repair p Veal binding not are v 923 So 2d 668 673 05 court 99 2805 2d So 1 n Louisiana v and Universities In this matter the absence from the v Huang Com Colleges 781 1 Cir 12 2200 860 So 2d 22 24 03 of Trustees for State App La 18 10 Expressway affirm the judgment of the trial no other issues court CONCLUSION F or the Costs of this foregoing appeal are the judgment of the trial reasons assessed to court is affirmed Mark Lewis AFFIRMED 5 We further note that liability which might insurance company was cast in judgment or relieved from call into question the issue of insurance coverage and or permissive no use 6 While matter we recognize the regarding by Lewis any discussion or declaration permissive use would be purely speculative and concerns the issue of raised impermissible advisory opinion amount to an 1571 p 5 La App 1 Cir 6 9 06 938 2d So See Chauvin 114 116 5 v Wellcheck in this would Inc 05
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
