Charles Glyn Bardwell, II VS Mary P. Moreau and Hector P. Perez
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2011 CA 0302 CHARLES GLYN BARDWELL II VERSUS MARY P MOREAU AND HECTOR P PEREZ Judgment Rendered September 14 2011 On Appeal from the 21 st Judicial District Court In and for the Parish of Tangipahoa 4 State of Louisiana Trial Court No 2006 0000817 The Honorable Brenda Bedsole Ricks Judge Presiding Hobart O Pardue Jr DeVan Pardue Attorneys for PlaintiffAppellee Charles Glyn Bardwell II Springfield La Katherine M LaPorte Attorney for Defendant Appellee Baton Rouge La State Farm Mutual Automobile Insurance Company Matthew D Fontenot Lafayette La Attorney for Defendant Appellant Safeway Insurance Company of Louisiana BEFORE CARTER C PARRO AND HIGGINBOTHAM JJ J CARTER C J In this action for damages arising out of a multimotor vehicle collision the appellant defendant Safeway Insurance Company of Louisiana appeals the district court judgment granted in favor of appellees Charles Glyn Bardwell II and State Farm Mutual Automobile Insurance Company Safeway assigns error to the district court assessment of fault and general damages award s After a thorough review of the record we find that the district court s assessment of fault was not manifestly erroneous See Brewer v J Hunt B Transport Inc 091408 La 3 35 So 3d 230 239 10 16 And we further conclude that the district court determination of damages in the instant case was s not an abuse of discretion See Guillory v Lee 090075 La 6 16 So 3d 09 26 1104 1117 For the foregoing reasons the judgment of the district court is affirmed by summary disposition in accordance with Uniform RulesLouisiana Courts of Appeal Rule 2 16 7 and 8 Costs of this appeal are assessed to the A 2 appellant defendant Safeway Insurance Company of Louisiana AFFIRMED 0a NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT Z011 CA 0302 CHARLES GLYN BARDWELL II VERSUS MARY P MOREAU AND HECT P PEREZ R BEFORE CARTER C PARRO AND HIGGINBOTHAM PARRO dissenting I respectfully disagree with the majority in this case because I believe that th trial cour committed errors of bath law and fact in rendering its judgment This matter arase out of an accident involving vehicles driven by Mary Moreau Francis Manate Hector Perez and the plaintiff Charles Glyn Bardwell II A review of the record indicates that on the date of the accident Ms Moreau was driving westbound on Interstate 1 in the left lane when she decided to turn left into a crossaver road b the westbaund and eastbound lanes in order to proceed in the tween opposite direction As Ms Mareau slowed her vehicle ta exECUte the allegedly illegal turn Mr Manale wha was driving the vehicle immediat behind her was able to slow ly his vehicle in order to match her d spe and avoid a collision ver How Mr Manale suddenly switched into the right lane after naticing tha a large vehicle was bearing down on him rather quickly from behind Mr Bardwell who was immediat b ly hind Mr Manale applied his brakes and veered to the left onto the median in an efFort to avoid a collision Despite these efforts Mr Bardwell vehicle was struck from behind s by the vehicle immediately behind him which was driven by Mr Perez Thereaft the r Perez vehicle continued ahead and also struck the Manale vehicle in the right lane Mr Bardwell filed suit against all of the drivers involved as well s their insurance respectiv however companies after various settlements the only defendants remaining at the time of trial were Ms Moreau insurance campany Safeway Insurance Company of Louisiana Safeway and Mr Manale insurance s company State Farm Automobile Insurance Company State Farm After a tri on the m the tri court ssigned the following reasons in l rits l support af its judgm nt Gentlemen I could ak this und advisement and go back r through everything that is sitting there and if I did in fact I would probably render a judgment in the nature of 45 plus interest and 000 all All that is available is the 10 that I believe should have been 000 d tender based just upon the medical bills just based upon the injury Had there been available the court would have considered something more than that As that is all that is available the court gives that plus interest and all costs additional money Thereafter the trial court signed a written judgment in favor pf Mr Bardwell and against Safeway in the amount of 10 the limits of Safeway policy plus legal 000 s interest and all costs of court The majority is correct that the trial court findings of fact conc allocation s rning of fault are subject to the manifest error standard of review See Brewer v J Hunt B Inc 1408 Transport 09 La 3 35 So 230 239 Althaugh gre deference is 10 6 l 3d t generally af a trial court findings of fact under this standard of r this does orded s view not mean hat factual determinations cannot ver or hardly ever be upset Although ference d to the fact inder should be accorded because appellate courts have a constitutional duty to revi both law and facts they have the right and the obligation w to determin whether a trial court factual findings are clearly wrong based on the s evidence or clearly without evidentiary support Td A review of the abave oral reasons provided by the trial caurt indicates that the trial court actually did not make any speci indings of fact with regard to th fault of ic 1 Ms Moreau was never served with the original petition or any of its amendments therefore she was dismissed on Safeway mation at the trial s Z State Farm had also filed a cross claim against Safeway for damages to the Manale vehicle The parties stipulaked thak State Farm had reimbursed damages of 94 700 4 to Mr Manale for his Glaim any of th defendants in this matter While it may be implied that the trial caurt intended to find Ms Moreau to be 10Q percent at fault in causing the accident no such finding appears in the triat transcript Furthermore it should be noted that the trial court erred as a matter of law in failing to comply with LSA art 2323 which pravides in pertinent part GC A In any action for damages where a person suffers injury death or lass the degree or percentag of fault of all persons causing or contributing to the injury death or loss shall be determined regardless of r th wh the person is a party to the action or a nanparty and regardless af the person insolv ability to pay immunity by statute including s ncy but not limited to the provisions of R 23 or that the other S 103 s person identity is not known or reasonably ascertainable If a persan suffers injury death or loss as the result partly of his own negligence and partly as a result af the fault of another person or persons the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury death or loss B The provisions of Paragraph A shall apply to any claim for covery r of damages for injury death or loss asserted under any law or legal doctrine or thepry pf liability regardless of th basis of liability As noted previously at no point in its oral reasons did the trial court assign a percentag of fault ta any individual involved in the accident Furthermore even if an assignment of a percentage of fault to Ms Moreau could be considered implicit the trial court failed tp consider the potential fault of any af the other individuals causing or contributing to the injury or loss Such a failure is an error of law Finally the trial cour failed to address the fact that pursuant to LSA 32 S R 81 a following motorist has a duty not to follow another vehicle more closely than is reasonabt and prud having due regard for he speed of such vehicle and the traffic nt upon and the condition of the highway As Louisiana courts have uniformly held a following motorist in a rear collision is presumed to have breached this duty and end hence is presumed neglig nt Mart v Hill 505 So 1120 1123 La 1987 Lv v 2d State Throu h De t of Public Safe and Corrections 633 So 197 201 La App 1st 2d Cir 1993 writ denied 93 La 2 634 So 835 Therefore in a rear 3134 94 2S 2d end collision the following motorist is presumed negligent unless he proves lack of fault Tavlor v Voiqtlander 36 La App 2nd Cir 12 833 So 1204 1205 670 02 11 2d 3 Moreover if Ms Mareau percentage of fault is implied to be 100 percent I submit that such a finding s wauld constitute manif st error based on the record in this case When this presumption applies in order to escape liability th following motorist has the burden to prove that he had his vehicle under control clas observed th lead ly vehicle and follawed at a safe distance ar that th lead vehicle negligently creat a d hazard which the following vehicle could not reasonably avoid Id In the matter before this court there is clearly some evidence that Ms Moreau was nt neglig However both Mr Bardwell and Mr Manale were able to maintain control aver th vehicles and avoid a collision while Mr Perez failed to do so ir Therefor I believe that the trial court legally and manifestly erred in failing to assign some percentage of fault to Mr Perez for his failur to maintain control over his vehicle and avoid dissent colliding with the Bardwell and Manale vehicles Accordingly I respectfully
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