Anthony N. Graphia VS Douglass C. Woolfolk and USAA Casualty Insurance
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 0790 ANTHONY N GRAPHIA VERSUS DOUGLAS WOOLFOLK AND USAA CASUALTY INSURANCE COMPANY Judgment Rendered 1 4 Appeal from the 19th Judicial District Comi In and For the Parish of East Baton Rouge On Trial Court No 452 506 Division Honorable Harry L Shoemaker III Baton Rouge LA Paul Marks Jr Stephen Dale Cronin Baton Rouge LA F Section 22 Timothy E Kelley Judge Presiding Counsel for Plaintiff Appellant Anthony N Graphia Counsel fur Defendants Appellees Douglas Woolfolk and USAA Casualty Insurance Company BEFORE PETTIGREW DOWNING AND HUGHES ry 9 3l e i J JJ HUGHES J This appeal arises from favor of the defendants a in judgment Plaintiff appeals an automobile accident For the case that follow reasons in we reverse FACTS AND PROCEDURAL HISTORY On March 30 in Graphia an 1998 automobile accident Route Louisiana injuries to Mr Woolfolk rear Old Hammond on his property and his person resulted and Following August an responses on ended Highway 22 naming N Anthony in Baton Graphia filed the instant lawsuit alleging Mr Woolfolk and his insurer USAA following C Douglas as that defendants Casualty Insurance Company USAA 2005 jury trial the jurors retunled the the jury verdict form 1 Do you find that Douglas Woolfolk was at fault in causing the accident which is the subject matter of this lawsuit Yes 1 0 No 2 question is Yes go to Question 2 If then your answer to this question is No go to Question 8 sign and date the Verdict F onn and notify the bailiff that you If your have a answer to this verdict Do you find that the fault of 2 cause of the injuries if any Yes 2 NolQ If your your answer answer to this to this question question is sign and date the Verdict have 8 In judgment a Douglas Woolfolk was a legal to Anthony N Graphia Form and notify the bailiff that you verdict Agree lQ Number of jurors who conjunction with the jury on If is Yes go to Question 3 No go to Question 8 then September 22 s 2005 2 verdict Disagree 2 the trial dismissing judge signed plaintiff s a demands Thereafter plaintiff assignments of 1 filed the instant asseliing the following appeal elTor The court erred trial in allowing into evidence hearsay testimony indeed double hearsay from Ourso USAA s was that there appraiser employee damage documentation stating that Graphia had been in another accident 2 The trial comi erred in expeli Ourso as an in the field of forces and their effects automobiles metallurgy reconstruction and accepting expanded on various accident physics without proper and lawful foundation 702 as required under LSA C B art etc qualification Moreover the trial court elTed in allowing Ourso to give unreliable opinion testimony which speculative unscientific and unfairly prejudicial in violation of all the requirements for expelis set out in expeli was LSA C B mi sic 702 and under the Daubert and Foret cases elTed in 3 The trial allowing unreliable hearsay evidence against Graphia when it accepted into evidence documents photographs and other materials which defense counsel had obtained directly from the internet 4 The trial comi erred in comi Joseph Turnipseed s Dr excluding from evidence medical records and medical bills jury verdict and the trial cOlui s final judgment incorporating the jury verdict were manifestly erroneous The 5 and clearly in causing not a legal wrong in finding that Woolfolk was at fault the accident in question but that his fault was cause of the injuries to Graphia LAW AND ANALYSIS A comi of appeal may not set aside of fact in the absence of Rosell ESCO v announced 1 the a two appellate basis does not 549 So 2d 840 pmi wrong test elTor 844 La trial or exist for the comi or a a jury clearly factfinder a s 3 wrong reasonable factual of the trial comi and elToneous finding determinations 2 the determine that the record establishes that the manifestly s The supreme court has from the record that finding s unless it is 1989 for the reversal of comi must find court must fmiher clearly manifest a Stobart v State appellate finding is through of Department La 1993 Transportation See also Mart the issue to be resolved was Hill 505 So 2d 1120 v comi s Stobart reviewing regarding the 1 Cir App 2002 2498 17 9 pp 6 7 comi may the feel its factfinder La App La 4 2 04 denied 2004 0447 1 Cir reasonable evaluations the trier of fact reasonable was a findings Even and based are on the trier of fact L L C though are more 9 s La Thomas v 862 So 2d 1010 869 So 2d 889 Thus 1987 Transportation Secret Cove 7 11 03 882 880 Jeff 2003 1932 p v evaluations and inferences own s Boudreaux 884 So 2d 665 671 04 of credibility of witnesses findings demand great deference La conclusion Where factual So 2d at 882 617 determinations a through Department State v Development by 1127 not whether is wrong but whether the factfinder right or one Development 617 So 2d and 1016 an writ appellate reasonable than credibility and reasonable of inferences of fact should not be disturbed upon review where conflict exists in the testimony Rosell v ESCO 549 So 2d However when the trial comi commits taints the fact process the manifest finding at 844 legal error error standard is v App 1 Cir 9 26 03 3200 La 2 6 04 In the instant 2d So case did it come p 7 La 2003 724 727 plaintiff objected between defense counsel and the USAA Q or applicable 974 writs denied 2003 3161 855 So 2d 968 865 not 2003 0037 Bayou Indus Maintenance Services Inc Levy which interdicts to your to the following interchange adjuster attention later that plaintiff had been in another accident A We There agree inadmissible was with hearsay documentation that stated that plaintiff appellant that this The USAA claims 4 adjuster did statement constituted not that he had testify any personal knowledge that the plaintiff had had there any proof offered exception LSA C LSA C E to mi E 802 art to bring this establish the proof of the 80l C and 802 witness The to the 803 6 Fmiher it was matter questioned as he knew of any pre his initial he did at any other accident him to case he at the The to the plaintiff had adjuster During was re as a the called and distinguish between to it would have been adjuster was also asked whether portion of the vehicle covered by time he made the estimate he been involved in arts damage that might have been Immediately thereafter the adjuster lemned that LSA C E in chief to establish the cost responded that separate it in elicited was repair of his vehicle issue and existing damage repair estimate not statement proscribed by would have been able to whether he impossible for as the USAA case damage caused by the accident by within the business record plaintiff had called the USAA claims adjuster of the defendants presentation was prohibition of hearsay contained asselied USAA necessary for the by accident Nor prior apparent that the during the presentation of his estimated caused statement a a was responded that asked whether he later subsequent accident as quoted above One of a possible claim for did not seek purpose for such penalties for failure penalties in this following justification would be important for the sole appraiser caused by unpersuasive the case timely the 30 1998 plaintiff In brief to this court USAA asselis the reflecting a performance of the adjuster in in defense pay the claim however any documentation for USAA March to testimony could have been previous accident s work duties detelmining what damage if accident We find this Even if the statement had been relevant for such would have been inadmissible under LSA C E 5 mi 403 a any as was argument purpose it which provides evidence may be excluded if its Although relevant substantially outweighed by issues or misleading danger of unfair prejudice confusion of the the the jury value is probative or by consideration of undue delay or waste of time The defendants plaintiff and produced no his vehicle had been involved in or could have caused the substantial Fmiher USAA at to admission of the to the defendant listed March 9 statement at a s would have impermissibly object to other Graves plaintiff s vehicle of a USAA prior accident file s We 1998 the as the nor reject USAA testimony i vehicle and the presence in s e as two accident date to s the medical justified the issue proof that the plaintiff had documentation of such bald asseliion that he had influenced the hearsay testimony is subject v of prior accident which caused the damage complained of this witness improperly rear neither establish that the to prior accident which a documentation In the absence of any reliable affirmative been involved in case introduced into evidence was plaintiffs failure damage that issue to the Moreover actually possessed contention that records damage witness identified what no documentation lack of evidence in this admitted to testimony 2004 1831 14 p hannless a to enor Although analysis accident the admission of we be harmless in this instance do not find the See Clement 924 So 2d 196 204 1 Cir 9 28 05 App La jury an 5 Under 111 a most circumstances an appellate judgment and the record is complete conducted and the when judgment is rendered weight of the evidence is witnesses is essential to a so on an the merits comi finds error independent review is However in nearly equal that fair resolution of the issues 6 legal a some cases first hand view of An appellate court must itself decide whether the record is such that the court preponderance of the evidence from the cold record witnesses is essential to should be remanded for 2525 4 5 pp 2004 2876 La La Southwest Ins fair resolution of a new 128 05 79 California Union Ins La Co 2002 0369 p 27 After careful review of the record to is the turns on to a the resolution of Xerox v we Corp 03 12 9 861 So 2d 579 find that serious issues of a first hand fair resolution of the issues This striking Most contradictory testimony case directly oppositional testimony of the plaintiff who testified that his vehicle sustained defendant vehicle damage as result of the accident a who testified that the was old remand the case and for was a damage not caused new trial by to the did Having occur plaintiff appellant s so Furthermore concluded rear we at and the issue end of the the accident interests of justice introduction of evidence of fact Argonaut v the fact witnesses exist herein and that view of the witnesses is essential essentially writ denied 1 Cir App 12 19 03 188 writ denied 2003 2742 La credibility with respect 131 and Gonzales La case Reis 2003 v See also Norfolk Southern 1975 a view of the a citing Ragas 388 So 2d 707 708 La 1980 Co 859 So 2d 167 Capital Corp 897 So 2d 128 So 2d 893 Where fairly find conflicting evidence the trial Certified 1 Cir 10 29 04 App 320 So 2d 163 165 Corp v a can plaintiff s Therefore we remand will allow a accident prior find it unnecessary if to will in the one in address remaining assignments of enor CONCLUSION For the dismissing reasons the suit of remanded for a new assigned herein the judgment of the trial Anthony trial N Graphia is reversed All costs of this 7 appeal court and the matter is are to be borne by defendants appellees Douglas Woolfolk and USAA Casualty Company REVERSED AND REMANDED 8 Insurance ANTHONY N GRAPHIA NUMBER 2006 CA 0790 VERSUS COURT OF APPEAL USAA CASUALTY INSURANCE COMPANY FIRST CIRCUIT STATE OF LOUISIANA BEFORE PETTIGREW DOWNING AND HUGHES JJ PETTIGREW J CONCURS AND ASSIGNS REASONS PETTIGREW J concurring In addition to the reasons am also of the automobiles it was error on the opinion that property damage appraiser There jurisprudence for him was given by the majority for this reversal and remand to testify no to do so part of the trial court to allow the in the field of forces and their effects foundation established under I Daubert on and various Foret
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