Shannon Hultberg and Jordan Hultberg VS General Insurance Company of America and Margaretta Spielman
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2008 CA 2147 SHANNON HULTBERG AND JORDAN HULTBERG jW VERSUS GENERAL INSURANCE COMPANY OF AMERICA AND MARGARETTA SPIELMAN fMQ On Appeal from the 19th Judicial District Court Parish of East Baton Rouge Louisiana Docket No 511 456 Section 24 Honorable R Michael Caldwell Leonard Cardenas III Baton Rouge Judge Presiding Attorney for Plaintiffs Appellants LA Shannon and Jordan Andrew w Eversberg Attorneys Brad M Boudreaux Guglielmo Marks Rouge and Margaretta Spielman LA BEFORE PARRO McCLENDON AND WELCH JJ Judgment 1f6 J c j c Appellees General Insurance Co of America Terhoeve and Love Baton for Defendants Schutte Hultberg sEd5 1 f f U fA rendered J t3 S o S OCT 3 0 2009 J cw 6Yff PARRO J In this favor personal injury suit Shannon Hultberg appeals against the defendants Company of America court seeking a judgment in her Margaretta Spielman and General an increase in damages awarded Insurance to her by the trial 2003 at We affirm FACTS AND PROCEDURAL BACKGROUND This action Carwash an involves located Benny s vehicular collision a on Perkins Road in Baton automated carwash where the customer chooses drives to a reaches this designated position vehicle toward the wash tunnel vehicle must be brake placed and the driver s on how to drivers and to hit a encounter it to the s is tunnel When the vehicle onto a conveyor that transports the sign stating and illustrating that the the driver s foot must be removed from the the and proceed entry to the wash tunnel points The steering wheel to a second A Benny s makes eye contact sign providing the guider has the responsibility to same help confused stop button if a driver fails to heed instructions The conveyor which near Benny Louisiana s The driver remains inside the vehicle and at the encounters a approaching driver information guided Benny particular wash option and a hands must be taken off the employee guider stands with the are neutral in Rouge in line for the wash position the wheels beginning of the conveyor July 15 on runs 36 feet from the point at which a vehicle s wheels first point of entering the wash tunnel The conveyor has rollers keep vehicles separated while entering the wash If a vehicle is properly on the rollers of the conveyor with the transmission in neutral and without the brake being applied the vehicle will roll approximately eight inches per second on through the wash tunnel If the brakes are at speed of a applied while a vehicle is the conveyor the rollers will go underneath the vehicle and the vehicle will not move into the wash tunnel driver takes his or However if the transmission is left in drive and the her foot off the brake the vehicle will travel 125 foot wash tunnel 2 rapidly through the On the Spielman day of the accident Shannon Hultberg entered Benny was driving the vehicle immediately behind Ms to place her vehicle her hands from the remove steering wheel took her foot off the brake without to on a entered the wash tunnel the vehicle had tunnel already injuring Benny Ms s rear Spielman became confused and car in neutral Ms Spielman could Immediately after Ms gUider stopped the carwash ended Ms causing the vehicle Hultberg Spielman by knocking to correct Ms shouting instructions but situation in time to stop her vehicle s not correct the Spielman However the vehicle while both were and Ms Hultberg reached Hultberg and her husband Jordan Company of America sued Ms for Ms Hultberg s Although Ms Spielman trial counsel for Ms Spielman and her insurance company advised the plaintiffs have stipulated that the a cause exclusive of interest and costs trial at the beginning of the court that In response stipulation sum of the Hultbergs attorney was with regard to the controversy After Mr by jury of action does not exceed the corrected this statement and stated that the s in the wash general and special originally requested Hultberg Spielman Spielman and her insurer and her insurer had amount in vehicle private settlement after the accident a damages and Mr Hultberg s loss of consortium damages 50 000 s Hultberg Ms General Insurance the sign higher rate of speed than if the rollers had transporting it The guider attempted her window and to the take her foot off the brake and Ms placing her proceed toward the wash tunnel at been in neutral As Ms Hultberg Spielman drove her vehicle onto the conveyor the guider pointed giving instructions Margaretta s presentation of the evidence the trial medical expenses Hultberg s 45 000 for her loss of consortium court awarded 30 317 for Ms general damages and The court stated the 15 000 for following concerning liability 1 In their answer negligence of to the Benny s Hultbergs petition causing the Hultbergs Ms Spielman and her insurer alleged the fault and supplemental petition naming Benny s as a to file a defendant 3 Benny s had the greater duty to protect customers on its premises I drive by that carwash all the time but Ive only been from harm in it once or twice It is as testified by Ms Spielman somewhat confusing You do go into a dark tunnel and your car is covered As I said I think with soap and you can t see whats going on Benny s has the greater duty in this case I think Benny s with this automated car wash has created a risk and has a greater duty to prevent an injury And I don t think that Benny s did enough in this case to escape liability It was the testimony of Ms Spielman that the very demonstrative actions of the guider caused her to be confused and perhaps not see the signs that were there So I think there is certainly liability on the part of Benny s After noting that Ms Spielman also had assessed 75 fault to Benny s fault to Ms and 25 At the conclusion of the court to bear some of the s oral of 50 000 was responded that the no Spielman reasons attorney asked the court to clarify whether the for amount in in excess of Spielman s controversy stipulation Hultberg Ms reduction should be made until there was Ms judgment starting point for fault allocation determine whether the total award the court liability was a s final counsel figure to Both counsel then 50 000 informally discussed with the court whether the allocation of fault should be made on the total award with exceeded that amount a further reduction to 50 000 only if the final award whether the allocation of fault should or at begin The court indicated this decision would be made in connection with the On was the August 5 2008 the to which starting point Spielman was court responsible for 25 ordered to pay Ms Hultberg signed a judgment judgment reflecting that the fault allocation of that amount 12 500 in total 50 000 was 50 000 Since Ms applied she and her insurer damages plus legal were interest from the date of judicial demand Hultberg appealed Ms contends were fault to Ms reversible Spielman error 2 45 000 in into evidence the medical and 5 1 allocating 75 fault to Benny error 4 general damages to Ms Hultberg examination report of defendant reducing the plaintiff s damages 4 twice s that and only s improperly taking judicial notice of facts awarding only Joseph asserting five assignments of in she 25 dispute refusing expert 3 to admit Dr Allen by first reducing the to the damages amount in stipulated reducing the damages in controversy of 50 000 and then further 2 proportion to the allocation of fault ALLOCATION OF FAULT The trier of fact is owed finding of percentages of fault is S Ry Co 00 0066 992 s U 121 La S Ct 149 allocation of fault is subject of review v 882 La Stobart to the State an 11 29 06 the trier of fact s lowest or discretion In L Ed 2d 508 manifestly cert 680 81 2001 Thus erroneous or Kansas City 532 trier of fact s clearly wrong standard exact science an v dismissed a through Dept of Transp and Dev clearly wrong 946 So 2d 144 166 Foley v or 617 SO 2d 880 the search for one Entergy Louisiana Inc 06 Only after making apportionment of fault is clearly wrong disturb the award highest 773 SO 2d 670 Duncan acceptable range and any allocation by the fact finder within that range cannot be La factual determination Allocation of fault is not 1993 precise ratio but rather 0983 a 10 30 00 1651 deference in allocation of fault since the some and then only to the extent of determination that a can an lowering it or appellate raising it court to the point respectively which is reasonably within the trial court s Clement Frey 95 1119 La 1 16 96 v 666 So 2d 607 609 611 determining the percentages of fault the trier of fact should consider both the nature of the conduct of each relation between the conduct and the party at fault and the extent of the causal damages claimed In assessing the nature of the conduct of the parties various factors may influence the degree of fault assigned 1 involved conduct including an awareness 3 the whether of the the conduct resulted 2 danger significance of what how was capacities of the actor whether superior or circumstances which might require the thought State Farm Fire and Cas 2 Mr Watson Hultberg did not v appeal the damages a risk inadvertence was created sought by the conduct inferior actor to proceed Ins awarded to him 5 great from Co and 5 in haste any or by the 4 the extenuating without proper 469 So 2d 967 974 La 1985 These guide the appellate factors same respective fault allocations See Clement 666 So 2d After reviewing the record the allocation of only 25 we tunnel Spielman Benny correctly It evaluation of the at 611 conclude that there fault to Ms customers entered the wash court s was no s was had a aware manifest the wash tunnel confused Benny s by the unusual deposition testimony make machinery also well was the or aware movement caused Benny s ensure its that a if in neutral We testimony it is automatically make preceding vehicle it her was the correctly car in to She stated that when pedal depressed is in neutral apparent that the guider had the duty In responsibility to take their foot off the brake or sure proceed by the conveyor procedure customer goes toward the wash tunnel with the brake stop the whole thing and tell them vehicle that customers could become guider acknowledged driver entered the wash tunnel sure a of any rear in duty to entered the wash tunnel with the transmission in drive that vehicle would unchecked and could strike the error to ensure that w e put their though a car From this a driver had complied with all instructions before entering the wash tunnel Also if something were wrong the Ms guider had the duty and the ability to stop the mechanism Spielman testified that she clear her confusion was She said that while she had her foot waiting for instructions the guider hit the her foot off her brake her car in neutral or Ms made take her foot off the brake length within which see what was on guider did not help the brake and was car window and hollered at her to take Spielman testified that the guider never sure that her car was both duties of the to correct her situation act in haste and became flustered not confused and the in front of her Ms told her to in neutral before guider With a put telling her to limited conveyor Spielman obviously felt she had Once she entered the wash tunnel because of the soap and water to she could on her car increasing her confusion Ms The accident occurred because wash tunnel incorrectly Benny s had Spielman was allowed to enter the greater appreciation of the risk and the a 6 best to opportunity Watson factors Spielman we in this case prevent the incident that occurred do not find the trial court s allocation of Applying the only 25 fault to Ms clearly wrong was JUDICIAL NOTICE Judicial forming part of the and the common intelligence and judge 231 SO 2d 692 695 State 1st Cir App judicial notice of Through Dept in his experience conclusion Benny guider See LSA C E art s automated carwash was to assist with present that occurred in this confusing to her Ms case Highways v Thurman We was when he said error somewhat not in evidence in confusing reaching his Witnesses for both disagree on her behalf stated that the nature of the process was Therefore we find no already merit in this an entering the wash tunnel can car While experience the confusing in evidence from witnesses for both assignment of as Additionally on comment may have reflected his own judge s The Spielman described the wash tunnel experience confusing especially since it is dark and soap is covering the vehicle the trial parties exactly the type of pre entry conveyor confusion because of the soap and water expert witness testifying be 201 merely within possible and actual confusion during the carwash process as to as 1970 thereby taking judicial notice of adjudicative facts testified of fact a Hultberg argues that the trial judge committed legal Ms that may not take knowledge La only of facts which may be regarded knowledge of every person of ordinary understanding a court individual s be taken notice may parties error ADMISSIBILITY OF EXPERT REPORT the trial court is Generally rulings and its determinations will not be disturbed on of that discretion 732 742 Allen granted broad discretion Ms Joseph Smith v Smith Hultberg sought a 04 2168 to introduce La a App 7 its appeal absent 1st Cir a 9 28 05 evidentiary clear abuse 923 So 2d medical examination report from Dr specialist hired by the defendants The trial court refused to admit the report on to review her medical condition concluding it was hearsay and that none hearsay exceptions applied of the Hultberg proffered the report for this According Louisiana to statement other than trial Article 802 states that the Code of Evidence 1st Cir 9 27 02 hearsay or other of Evidence article 801 to prove the truth is not admissible 828 SO 2d 1212 1217 n 7 as otherwise Ostrowe v at the a present of the matter asserted except Turner legislation is hearsay by the declarant while testifying hearing offered in evidence or Ms court s consideration Code made one to allow its admission into evidence writ denied provided by 01 1935 02 2940 La App 2 7 03 La 836 SO 2d 107 In this case Ms the extent of her was thus an out asserted injuries and of court However authorized Hultberg sought to introduce Ms admission made the by a under LSA C E a art 801 0 not a c in that personal Clearly Or Joseph is or party 2 his own conclusions Joseph s they are Article 801 0 a His 2 provides own that a c statement is not by a or to make made it was person authorized an offered b was a belief and or statement concerning a was c 2 indicates that these a by the parties themselves was the Hultberg s injuries by subject 8 they obviously did or a if it is offered not against a adoption a or use it party and is belief in its truth statement As adopt representative capacity him to make agent independent medical expert an Ms hearsay statement in either his individual A statement because since the defendants decided not to b A statement of which he has manifested his the hearsay but there any indication that he in furtherance of their case report report 3 concerning subparagraph b of Article 801 0 2 not was 2 to Article 801 0 nor is to prove The by their representative representative of the defendants rather than reaching 3 made by the defendants However official comment are 801 0 they had manifested their adoption subject See LSA C E report s in court to prove the truth of the matter art was Joseph to the accident Hultberg contends the report person authorized statements causally link them writing offered against the defendants and statement in which to Dr or concerning to Or or Finally indicate any belief in its truth Joseph apparently Ms concerning them to make could have medical was hired Hultberg s medical a statement to condition anyone else In briefs to this court on we not as non was her behalf on to them opinion not authorized concerning the subject neither Ms by Hultberg if she believed his party included any Louisiana jurisprudence whose behalf the report non hearsay when introduced prepared when that expert has was testify and has not been deposed conclude that under these circumstances the above an Dr although c case not been shown to be unavailable to err in clearly expert s report is admissible an against the party did not he subpoenaed the doctor to testify concluding that subparagraph by the defendants to express opinion would support her qualify to as hearsay under LSA C E art 801 0 an 2 Based on expert s report does Therefore the court excluding this document GENERAL DAMAGES The role of appellate court in reviewing general damages an decide what it considers to be exercise of discretion 10 18 00 appropriate award but rather to review the an by the trier of fact 774 So 2d 70 The initial 74 is not to Wainwright inquiry v Fontenot 00 0492 is whether the award for the particular injuries and their effects under the particular circumstances particular injured person is fact Youn a clear abuse of the Maritime Overseas v denied 510 U S persons frequently disagree about the case It is 1114 114 S Ct 1059 only when the award reasonable trier of fact could assess is 127 measure L Ed 2d of 1260 379 La 1994 general damages in either direction for the effects of the on 1993 In this or case decrease the award Ms 30 317 for medical Hultberg expenses was cert Reasonable in a particular beyond that which particular injury particular plaintiff under the particular circumstances that the appellate should increase the of the trier of much discretion 623 So 2d 1257 Corp La a to the court Id at 1261 awarded the total 9 45 000 in of which was general damages and reduced based on a stipulation award After careful review of the record a reasonable and not was accident involved minor a an abuse of discretion impact No injury investigated the accident The last time for her injuries was in October 2005 within the range of what a was Ms The find that the trial court we s The record shows that this reported Hultberg to the saw a police officer who health provider care general damage award of 45 000 reasonable trier of fact could assess as was damages STIPULATION Whether the trial court stipulation concerning the review of decision La a App 12 13 96 legally is controversy simply a decision correct or incorrect 1st Or 9 27 96 680 SO 2d 1358 50 000 the At the end of the trial the difference between not have used amount in Therefore stipulation 50 000 as a 50 000 exceeded under the facts of this Spielman the trial court in v 1210 the Appellate whether the lower court Allstate Ins Co writ denied s 96 0159 96 2586 La the trial court used this amount on the allocation of fault legal reversible error cause in as not the Ms Hultberg to recognize failing of action Hultberg contends that the trial with regard court should after Thus applying the allocation of fault the cause initial of action to the total question is whether there is and the amount in a controversy case cites several cases which determining the final Winn Dixie of La 95 0435 parties stipulated that the court found the controversy did starting point rather the award should only have distinction between the terms Stevens question of law amount in controversy and Ms been reduced if the final award Ms v 1360 parties stipulated that the argues that the trial court committed award a as to Cangelosi starting point and then reduced it based to this is to the 692 So 2d 375 In this case exceed amount in question of law was correctly applied the allocation of fault plaintiff was 50 support the method employed by amount awarded to Ms La App 1st Or 11 amount of the case 9 95 was at fault and the defendant 10 was Hultberg In 664 SO 2d 1207 20 000 50 The trial at fault and awarded the plaintiff 30 000 which reduced was by her percentage of fault On appeal the First Circuit found that the trial court erred in damages in excess that 20 000 that stipulated of at 1213 Id amount The Louisiana Supreme Court in Bullock cited with amount in controversy amount in This 96 0711 in Stevens 00 0424 La was cause cause 11 28 00 as a 50 000 plaintiffs cause jury trial 20 000 In Bullock of action cause petitioner as s amount in language but or occurrence jury trial found in not on the amount of against the defendant to a were court in of action in a suit if no individual intended to focus right the 773 So 2d 702 707 out of the transaction before the court at the time the In the The The court concluded that the was of action The supreme court further noted the is not synonymous with the term amended in 1989 plaintiffs overall claim arising value of the are prohibiting Benoit 773 So 2d at 707 Article 1732 the 1732 of action exceeds controversy In Bullock abrogated by the supreme In Benoit the supreme court stated that the term art on 11 1 96 La did not exceed controversy and part of the opinion in LSA C C P based stipulation is made the award should first a Allstate Ins Co v parties had stipulated stipulation and then fault should be allocated court found that the terms Benoit Graham v approval the method used supreme court determined that when be reduced to the s 4 plaintiff alleged that the synonymous Because the the maximum award fault should have been allocated was 681 So 2d 1248 20 000 assessing the plaintiff is or on the defendants who litigated Id at 708 follows frequently occurring tort case where a tort against two defendants whose concurrent conduct gave rise to one cause of action for damages and one of the defendants settles prior to trial the amount of the plaintiffs cause of action for damages against the remaining defendant remains the same because the remaining defendant may be found by the trier of victim 4 s A similar calculation So 2d 766 more suit is was performed 777 writ denied their claims did not exceed damages the judgment to the defendant 17 500 There was no was App 1st Or 3 29 06 934 plaintiffs had stipulated that the court found they were entitled to greater Although limited to 50 000 and the percentage of fault allocated that amount Therefore each plaintiff was awarded Hussey v Russell 04 2377 La 6 14 06 50 000 each in their favor 35 in 06 0962 was applied to discussion of the distinction between controversy 11 La where two of the cause of action and amount in fact to be one hundred percent at fault Benoit 773 So 2d at 709 In this case plaintiffs stipulated that their 50 000 thus corrected that 50 000 cause eliminating the right stipulation to a to state that the Since the defendants had plaintiffs agreed exceed 50 000 that the defendants reduction of the to a jury trial In open court amount in stipulation that the right to a a trial amount in jury trial out of the plaintiffs overall claim arising amount of her a cause of action for controversy to one cause Therefore of action to calculate the total award to the at 708 in open court did not in this case since there were rise Later in stipulated sum not exceed it was by jury occurrence not This precluded at issue was in order to reduce the We believe that the use amount of the term change the effect of the stipulation multiple defendants whose for only controversy did was of plaintiffs damages below the minimum threshold jury trial See Benoit 773 So 2d amount in the controversy did voluntary remission by the plaintiff of part of her claim for jury trial of action did not exceed the initially requested after the a a parte motion for cancellation of the jury bond the defendants stated that an ex the originally the defendants had requested See damages concurrent conduct gave Benoit 773 SO 2d at 709 appropriate award the judge correctly reduced the amount and then allocated fault We find no error in this determination of the proper award CONCLUSION For the are foregoing assessed to Shannon reasons we affirm the Hultberg AFFIRMED 12 judgment All costs of this appeal NUMBER 2008 CA 2147 SHANNON HULTBERG AND JORDAN HULTBERG COURT OF APPEAL VERSUS FIRST CIRCUIT GENERAL INSURANCE COMPANY OF AMERICA STATE OF LOUISIANA AND MARGARETTA SPIELMAN JfW@ concurring in part and dissenting in part Welch J I agree with the and the opinion on general damage award percentage reduction for Benny have applied the 75 However s 50 000 court Triche App 1st Cir 12 20 96 v as well the fault allocation as disagree with the calculation of the I comparative fault I believe the trial court should Benny s to the total amount of damages stipulation stipulation has the effect of parties and the evidentiary issues reduction for the fault of awarded rather than to the A the a judicial admission Allstate Insurance 686 So 2d 127 confession which binds all Company 96 0575 pp 6 As such 131 or a 7 La stipulation constitutes the law between the parties and is interpreted according to the intent of the parties to the agreement See Triche Allstate Insurance 96 0575 at p 7 686 So 2d at 131 Company 97 0582 pp 12 13 La App see Robling also 1st Cir 4 8 98 v 711 So 2d 780 787 The only question the trial court appropriate calculation reduction Ms Hultberg s from the total was was called upon to decide in determining the whether the parties intended that the reduction of damages because of the negligence of another tortfeasor would be made awarded from 50 000 This question can by looking at all of the circumstances under which the stipulation was Ms damages or At the plaintiffs stipulated that the Hultberg counsel Hultberg s was Ms Spielman beginning of the trial the only defendant sued apprised the court that stipulation made Hultberg settled with Benny s before filing this lawsuit against and her insurer s only be answered cause of action did not exceed 50 000 Ms immediately corrected this statement by advising the court that the only with respect to the attorney clarified the stipulation to amount in ensure controversy that it referred Obviously Ms only to the value of her claim against Ms Spielman and her insurer the only defendants tortfeasors conclude that a were intended and Ms Hultberg s her damages claim further It would be unreasonable to 30 000 in medical expenses alone against all parties responsible for her injuries case I can was agreed less than only conclude that the parties agreed that the stipulation would apply only to the value of was bound to the total value of by this stipulation and should have calculated the percentage of fault attributable to Benny s from Ms Hultberg rather than sum over litigation against Ms Spielman and her insurer and not The court reduction for the that in the Under the circumstances of this understood award involved plaintiff who incurred that the value of her claim 50 000 after her Benny s and not to the total value of her claim for damages regardless settlement with of which at trial reducing Ms Hultberg s total award to 50 000 and then by the percentage of fault attributable to Benny s appropriate general damage award 2 total reducing Therefore respectfully dissent from that portion of the opinion upholding the trial calculation of the s I court s
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