Ronald G. Kyle VS New Hampshire Insurance Company and Allan Boudreaux
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2006 CA 0796 7 tJ RONALD G KYLE VERSUS NEW HAMPSHIRE INSURANCE COMPANY AND ALLAN BOUDREAUX CER fl I Judgment Rendered J t 1 7nn7 1 Appealed from the Nineteenth Judicial District Comi In and for the Parish of East Baton Rouge Louisiana Trial Comi Number 496 766 Honorable R Michael Caldwell James L Hilburn Baton Rouge LA Judge Attorney for Plaintiff Appellee Ronald G Kyle John Dale Powers Attorneys for Douglas M Chapoton Baton Rouge LA Defendant BEFORE New Appellant Hampshire Ins Co KUHN GAIDRY AND WELCH n WELCH J The defendant referred to as New appellant appeals defendant a Hampshire in favor of the judgment Kyle hereinafter referred to other driver insured Mr Boudreaux defendant automobile accident s Kyle Mr as underlying this finding for diminution of value of his vehicle we of the trial 25 Mr repairs right of action no deny the exception and affirm in part and reverse G fault and the at fault in at awarding plaintiff Ronald causing the Kyle 18 000 00 to his vehicle and Defendant has also filed in this peremptory exception raising the objection of reasons 75 20 099 68 for the 00 for the loss of use of the vehicle 487 6 Kyle Mr and litigation Company hereinafter Insurance For the court a following in part the judgment comi FACTUAL BACKGROUND This at matter approximately accident divided Siegen bumper 5 30 p an m to automobile accident that occurred on center Lane at that time bumper Lane in Baton Mr Kyle was on driving a He 1998 BMW 750 road where he could pull approximately the Car facility on the northbound lanes in order Lane to of a got into the Siegen make The northbound traffic a 2 tmning driveway on was to the left side of the on Siegen to cross over proceed southbound bumper business exiting the Enterprise intending to backed lane and traveled proceed southbound Lane was center a left turn and which traveling in the left around and go back time Mr Boudreaux right side instances were to turn in turn around and same some All three lanes of traffic Highway his left The record reveals that the traffic nOlihbound in the lane with the intent of reaching At June 28 2001 At the site of the Rouge extremely congested and in Kyle decided he wanted facility he had passed lane turning was northbound lane toward Airline up and Mr Siegen on Lane has three lanes southbound and three lanes northbound by a yellow striped Siegen on involves Lane Rental all three on Siegen bumper had stopped and created sufficient gap a to allow him by several of the stopped drivers nOlihbound traffic Mr Kyle According to Mr front of him Boudreaux stopped see Kyle he vehicle The of Mr Kyle vehicle scene The proceeded that he Mr Boudreaux was turning Mr as lane across unable to s vehicle which stop or BMW struck the front driver investigating officer testified and while he did not drivers had violated traffic laws and Mr Boudreaux had failed to out in pulled Mr avoid the collision pulled into the turning lane and flying came findings turning lane Siegen Lane He umped from the end of the left northbound Kyle and he His on this gap in the the center down there and physical evidence reveals that the right front s being waved tmning lane his vehicle collided with traveling northbound in never saw After if he could make his left turn onto southbound of the accident both drivers center the other hand testified that he testified that he watched lane into the was unexpectedly so on to which those lanes Mr Boudreaux As he entered the vehicle s to traverse were as s side to his Mr findings was was engaged in his comer of Mr Boudreaux upon fairly consistent with Kyle into passenger side comer issue any citations it ran his arriving the s at the testimony of opinion that both improper lane usage yield PROCEDURAL BACKGROUND Mr Kyle instituted this suit against insurer New Hampshire Insurance aforementioned accident that claim was abandoned of the accident negligence damages and After a Boudreaux and his automobile Company seeking damages arising out of the Although his original petition alleged personal injury as Mr Kyle testified that he In addition to the facts was driven not injured as a result surrounding the accident relevant liability the remaining evidence introduced to the BMW BMW caused Mr by Mr Kyle including at to trial concerned the the diminution of value of the by the accident bench trial judgment was rendered 3 finding Mr Kyle 25 and Mr Boudreaux 75 at fault in causing the accident found that Mr Boudreaux specifically into his vehicle is less I think plausible In version s than Mr Kyle allocating that Mr stating s fault the trial court flew Kyle just in oral right reasons presented with this situation given the sad state of traffic in Baton Rouge and the more popular use now of the fifth turning lane on major thoroughfares such as Siegen Lane And as I said I find Mr Kyle s version of the accident more plausible than Mr Boudreaux s but I don t think Mr Kyle is totally free from fault The trial we comi s have all been judgment awarded for the diminution of value the sum of Mr 16 484 2 Kyle the trial court s same amounts amount of court use of 25 less 18 000 Kyle the BMW fault costs Motion for New Trial and a failure award the value of the property to award the proper to comparative fault result of the accident as a comparative less 25 then filed vehicle and for its failure The trial to Mr legal contending it together with interest was warranted damage repairs amount for loss to by his of use of the vehicle granted the motion and rendered judgment awarding Mr previously awarded and adding award in the 20 099 68 for the of the vehicle from repairs 2 to 16 484 to this recovery the vehicle and 6 487 00 to an Kyle the adjusting the award for loss The defendant perfected this appeal NO RIGHT OF ACTION The defendant has filed with this court a peremptory exception raising the objection of no right of action The basis of defendant s exception is its assertion that the plaintiff s wife Sharon Kyle is her husband C C P mi operating at the and La C C mi was 6861 the sole registered owner of the vehicle time of this incident therefore pursuant 2351 2 she is the sole proper pmiy to La plaintiff to sue Louisiana Code of Civil Procedure Art 686 provides in pertinent part that either spouse during the existence of the mmital cOlmnunity is the proper pmiy plaintiff to sue to enforce a conununity right exceot when one spouse is the managing spouse with respect to the conmmnity right sought to be enforced then only that spouse is the proper 4 party plaintiff to enforce any related to the vehicle rights While defendant s argument may have merit support of the exception otherwise in the record or contention that the vehicle was Moreover both Mr and Mrs Kyle testified vehicle Thus the record evidence no registered in the at of Sharon defendant plaintiff we Kyle only suppOlis the presumption that the vehicle is community to sue to enforce any Given the lack of evidence in the record claim that Sharon s s they were the owners of the property and that either spouse is the proper party plaintiff rights related thereto in presented support defendant to name trial that was Kyle is the sole registered owner to support and proper party overrule the exception ALLOCATION OF FAULT The defendant first assigns en or review of the record reveals that this the to was slightly conflicting testimonies of the testimony was in conflict with the investigating officer accident we are more The trial court two review of the record Ins Co s or drivers involved defendant is citation that his situation is heightened duty 2 the or to a Mr Kyle a on Neither driver the or rendering this us findings s s of the version of the factual that the trial 1985 v finding that nor court cOlTectly State Farm Fire and and its ultimate inconsistent with the application of the Watson factors Moreover allocation of fault Our factual determination based forth in Watson La s disturbing convinces set 469 So 2d 967 a expressly found credible than Mr Boudreaux considered the relevant factors Casualty purely comi physical evidence legally prohibited from reassessing Our the trial findings manifestly are neither enoneous simply inconect in asserting without supporting one not usually contemplated when motorist Mr Boudreaux making Louisiana Civil Code Ali 2351 provides that when a of only one spouse that spouse has the exclusive name lease that movable 5 a prescribe left hand tuITI community right courts movable is a In Miller registered to manage alienate in encumber v Keal La 29 564 97 13 10 App 2nd Cir La 703 2d So circuit confirmed that turning lane center motorists who are 620 even exiting Miller 694 So 2d at 573 of fault similar Finally findings 3 29 06 a law a the find we emphasis no 926 So 2d 683 the being the application it date of this This this was heard on improperly using the higher standard of lot to enter case finding no is entirely inapposite s use case of a case of an s the most glaring emergency vehicle statute Rabalais a court App 3rd Cir La 2005 937 center turn October 16 2006 and enor contention that the trial s on highway a manifest Nash case care 70 30 allocation a v in that such vehicle at hand the second The court affirmed merit in defendant First case driver is parking or added Supreme Court granted writs in that 6 30 06 imposes private drive a to the 75 25 allocation in specifically addressing the VelY similar to the inconsistent with Rabalais are distinction a case writ denied 97 1751 694 So 2d 569 in this situation where travel to 7 5 97 v decision We also note that lane Nash was 2006 0999 still pending La at the opinion assignment has no merit Damages for Vehicle Repairs The defendant Kyle asserts Motion for New Trial and s because the evidence Kyle s the trial including Mr awarding the repair damages Kyle automobile insurer Allstate had damage to The the vehicle abused its discretion in cOUl1 s own not As claimed the an already reimbursed the Kyles defendant also less the that the asserts element of damages before the was not amount of 950 deductible a the total of repairs 18 to 49 327 6 the vehicle the new property trial was properly pleaded cOUl1 by the defendant the record establishes that Kyles for the full to Mr testimony established that Mr improperly granted because the claim for repair damage and therefore granting the BMW Allstate reimbursed following the accident However there is no evidence in the record to Allstate support the defendant claim from the s settlement of its 20 099 68 subrogation not in the record between Mr Kyle and Allstate at issue The issue Boudreaux 1150 were made before 93 859 La 94 1640 claim policy issued settlement is policies s was 7 10 94 paid to presented 4 6 94 to Allstate 6 018 18 neither the settlement evidence thereof App 3rd Cir Hampshire settled claim the amount of Additionally or New to Boudreaux and pmi of the record before a us La appeal that on nor in This agreement the Allstate insurance us in the third circuit Kidder v 636 So 2d 282 writs denied 94 644 So 2d 629 630 under very similar facts and circumstances W hether the tortfeasor insurer Farm Bureau New Hampshire in this is entitled credit for medical payments propeliy damage to the injured party Mrs Kidder Mr Kyle made by her own insurer where the insurer making payments Allstate did not assert a subrogation right and where there is no evidence in the record that Mr Kyle and Allstate entered into a subrogation agreement or that under its policy Allstate was contractually subrogated to the rights of Mr Kyle to case Kidder a 636 So 2d at 284 credit for the amount The third circuit found Farm Bureau paid specifically recognized that source even However if the pmiy subrogation had case App 1 on st appeal Cir So 2d 1384 right plaintiff by her own of subrogation is an subrogated does not us not 657 So 2d 697 where conventional cJ Sutton writ denied subrogation applied 7 v The its to court collateral subrogation of the necessary party subrogation must be found that conventional introduced into evidence and Kidder 636 So 2d at 284 6 23 95 court entitled to the not appear to assert the Kidder not Id exception established because the insurance was was insurer timely object to nonjoinder before not been plaintiff and her insurer record the the court also confirmed that conventional As in the proven to the and the defendants do rights Id rule s policy between the was not Lambert 95 1859 La collateral a part of the 94 2301 11 3 95 source lule La 661 was based inapplicable insurer which was settlement introduced into evidence between Mr defendant and Allstate plaintiff s insurance Kyle and Allstate the Allstate nor with its contract conventionally subrogating Allstate As noted earlier the defendants rights against the in the provision on a the in this matter to neither the alleged settlement between policy was made a part of the record before us Therefore the collateral granting result is in Kidder conventional as source rule trial and a new applies and the trial no with the was not during the trial objected 3 to the trial The rule is most s oral cOUli for reasons failure s element of propeliy to commonly applied damage This the collateral source 3 to granting the new tlial the BMW because that element of Mr sufficiently pleaded by court abuse its discretion in not argues the trial cOUli erred in awarding damages for the repairs damages did has not been proven here jurisprudence applying subrogation has been proved Alternatively defendant and court awarding the Kyles this wholly consistent rule where subrogation At the end of the first trial Kyle judgment award the Mr s counsel specifically repairs for the property damage proceeds to insurance Kyle and the tortfeasor In liability to an plaintiff had the s injured plaintiff is held to be the same regardless of whether or not that foresight to obtain insurance Louisiana Department of Transportation and Development v Kansas City Southern Railway Co 2002 2349 La 5 03 846 20 2d So 734 740 Thus the tOlifeasor is not allowed to benefit from the victim s foresight in procming insurance and other benefits Bozeman defendant s the v State 2003 1016 ofthis state has For years already dip aspect of the collateral double dip in fact occurred b the diminution ofpatrimony additional case premiums of insurance which unlawful forced to purchased by with the so called In response to the plaintiff by windfall or rule ecause was In the a struggled source diminished to the extent that he was 698 double recovery addressed and rejected that notion the Louisiana comis have double 879 So 2d 692 7 2 04 contention that this award amounts to jurisprudence or La only to discover that no windfall injured party s patrimony was recover against outside sources and the damage the diminution of his suffered by him the plaintiff as that plaintiff has paid cash would have patrimony By going against his own insurance company he is diminishing the benefits of that policy which would otherwise be available he has suffered a diminution in patrimony by premium payments and his rates will rise providing a third area of loss are a otherwise been available to him Bozeman 879 2d So at 699 8 response the trial court stated it wasn t in your original pleadings a specific claim for Frankly damage to the vehicle And as defendant counsel points out and I pointed out I didn t think it was an issue of damage at trial I frankly didn t 1 thought that the evidence was offered merely to show the extent of the damage to the vehicle and that was used in the valuations And 1 don t think that was an issue that any done by the experts of us least I didn at pick t on up it at trial And you may be going to stand with and you may prevail on appeal But Im the judgment of the eighteen thousand dollars diminution in value cOlTect plus the rental Subsequently in granting the plaintiff s motion for admitted that he brought before the of the value mistaken in my was consideration the tlial trial ruling that this issue had court and that s where concluded that there he was the trial focused judge been properly was on the loss not He noted that the concentration at trial court the vehicle to new a Upon further evidence that it was before the court I t is clear that the petition talks about the omnibus clause asking for T he pretrial order and the intelTogatories did address damages the issue Likewise according to my notes in the deposition of Joannie Kittrell from Cavin s Auto the invoice for the original repairs to the B M W from September 2ih 2001 invoice number 9606 and the invoice for the November 6 2002 So clearly the supplemental repairs invoice number were cost 13224 of admitted into evidence of repairs was which totaled admitted 20 099 68 Our review of the entire record supports the trial new trial and establishes that the property indeed to court s findings in granting the damage for the repairs of the vehicle pleaded by the plaintiff and sufficient competent evidence support the award for this element of damages was was introduced The trial court did not abuse its discreti on For all the foregoing reasons this assignment has no merit DIMINUTION IN VALUE AWARD The record contains the valuation testimony The conclusions of these two of expelis in diminution of vehicle experts 9 were vastly different defendant s expert Mr Neil Blitstein testified that the diminished value of the BMW result of the accident 2 500 00 was concluded the diminished value was Defendant assigns enol to s testimony enoneous the Cynthia Wyatt arguing that the trial for the valuation of this element of Kyle for the to Mr 18 000 awarded she did not possess sufficient as a 18 000 diminution in value of the BMW 750 Wyatt Ms plaintiffs expert as court s damages expertise and her reliance was on Ms manifestly methodology was unreliable A district court is accorded broad discretion in determining whether expert testimony is admissible and who should be permitted Moreover the decision to of discretion Cheairs qualify an expert will not as an be overturned absent State DOTD 2003 0680 v testify to La 12 03 03 expert an abuse 861 So 2d 536 541 We have thoroughly reviewed the evidence presented diminished value of the BMW as a Cynthia Wyatt and Neil Blitstein result of this accident While the concernmg wit the to the testinlony of testimony of each witness varies greatly neither witness outright contradicted the other rather the methodology employed by each in aniving the testimony of Ms Wyatt at the diminished valuation differed upon which the trial comi reasonable factual basis for her valuation of the vehicle the trial court s award based thereon in any event We find that expressly relied provides a following the accident and there is clearly no abuse of discretion In blanket particular the trial court noted that it could not opinion that the involved in an accident take into account the most any was 10 could be diminished in value for car of its pre loss value specific value of In contrast the trial court noted the accept Mr Blitstein a BMW specifics 10 as such compared with in Ms Wyatt s s being testimony did not any other vehicle testimony that prior to the 40 000 00 and considering the a retail value of severity trade in value of a BMW had the accident reliable and more 39 875 00 auction value of an testimony of truer to Ms and that after the accident of the accident and the extent of the concluded that it found the with approximately 18 000 and 38 000 00 trade in value between a repairs 20 400 4 the BMW had The trial Wyatt and the figures she the diminished value of the court came up luxury automobile at Issue Our review of the record reveals III admitting and relying testimony was based on on her Ms both wrote them up and etc 18 000 award of those years of employment She testified that she worked with the used Ms Wyatt s she sold appraised them as a Ms Based s manager in the a on the relevant factors concluded that the diminished Wyatt result of the accident and testimony provides car Wyatt testified that she has performed her in her evaluations Her Ms following through with the clients concerning the appraisals value of the BMW 750 was During of evaluations of used BMW employed by great discretion s experience and knowledge gained from working for performance of these duties thousands court and used demoed them did the initial evaluations new trade in value abuse of the trial Wyatt s opinion testimony Brain Harris BMW for twelve years cars no repairs necessitated thereby reasonable factual basis for the trial 18 000 for the diminished value of the BMW court In any event there is s no abuse of discretion This assignment lacks merit Loss of Use Award At the end of the first trial the trial 484 2 amount 16 for the loss of use court awarded Mr of his vehicle while it is consistent with the evidence presented was Kyle the amount being repaired in the record of This including the 4 The trial comi also noted that Mr Blitstein could not the vehicle 11 dispute the wholesale auction value of Enterprise Mr us does court s not a for car on the 00 of the was testimony of the Kyles that they rented new were the trial and amount for The a charges therefore the trial adjusting this award based vehicle for an only support in plaintiff s at the trial awards the loss of answers use was trial in support of and the 2 484 16 invoice for only explanation for loss of use of the vehicle of month but one trial find for this increase in this award is the damage testimony The record before new light of the fact that the only evidence presented In this element these the without intenogatories in which he claims the total 487 6 vehicle a healing for simply and the approximately after that and shared in which it 3 922 00 we can rented transcript therefor amount the record that they damages contain the reasons additional to their mitigate 2 484 16 Car invoice in the amount of a and his wife that Kyle chose to Rent approximately supporting one month and court abused its discretion in granting the the unsupported assertions made on by the plaintiff during discovery Accordingly this portion of the judgment original award of on the new trial is amended the 16 for the loss of use of the vehicle is reinstated 484 2 AWARD IN EXCESS OF POLICY LIMITS In its final the trial court on assignment of the granting of the otherwise affirmed defendant contends that if the en or the judgment new trial in the total clearly exceeds the property damage which the tortfeasor Boudreaux that may be rendered court s judgment against it must cannot be amended Again while the defendant applicable to s to exceed the no more had under the As noted earlier the New than the no Hampshire policy 12 policy limit for amount terms of his of the judgment policy limits therefore the trial argument may be policy coverage limits there is of 44 586 68 is 25 000 00 Accordingly defendant contends the maximum policy amount judgment of policy limits a conect statement evidence in the record was not to of the law support it introduced into evidence at trial or otherwise made stipulates that said New of said limits are terms not judgment the trial court page of its to the terms that the pre trial order true liability insurer of Mr Boudreaux and that the and limitations contained therein conditions conditions and limitations court granted Mr the defendant filed a Kyle including s most notably the policy Motion for New Trial and rendered motion for The defendant attached to a new trial which its motion for new was denied by tlial the declarations policy with Boudreaux which does reflect that the policy limits for property damage is in the record and the trial reason was While it is contained in the record After the trial a new part of the record Hampshire policy is subject none a nothing before was not comi us However this attachment to 25 000 before the trial did not warranting err an in court when awarding the amendment to a motion is not evidence it rendered judgment For this amount that it did and there is that judgment on this basis CONCLUSION For all of the vacate the foregoing additional original award of the judgment of the trial comi is amended to amount awarded for loss 484 2 judgment of the trial reasons 16 for this element of court of use of vehicle and reinstate the damage In all other Defendant is assessed all is affirmed respects the costs of this appeal PEREMPTORY EXCEPTION DENIED AFFIRMED AS AMENDED 13 JUDGMENT AMENDED
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