Pamela Rogers VS Jimmy Graves, Jr. and Allstate Insurance Company
Annotate this Case
Download PDF
STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2006 CA 0648 PAMELA ROGERS VERSUS JIMMY GRAVES JR AND ALLSTATE INSURANCE COMPANY rendered Judgment FES 2 1 2007 Appealed from the 19th Judicial District Court in and for the Parish of East Baton Rouge Louisiana Trial Court No 496 294 Honorable Janice Clark Judge CHRISTOPHER D SHOWS ATTORNEY FOR BATON ROUGE PLAINTIFF APPELLANT LA PAMELA ROGERS DAVID C FORRESTER MARK G DEFENDANTS APPELLEES MURPHEY BATON ROUGE ATTORNEYS FOR LA JIMMY GRAVES JR AND ALLSTATE INSURANCE COMPANY BEFORE I Ja PETTIGREW DOWNING AND HUGHES 11 PETTIGREW J In this plaintiff challenges the trial case insurance company a credit for Defendants answered the affirm in a appeal court s judgment granting defendant property damage payment previously made to plaintiff For the reasons that follow we reverse in part and part fACTS AND PROCEDURAL HISTORY On November 8 sustained Road 2001 property damages traveling eastbound onto Joor Road in the left At the attempting was order to turn left and corner As insurer of Ms Springs Road proceed westbound 2 500 00 in a Jimmy Graves near its Rogers was exiting a was parking lot on As Mr intersection with Joor Road Springs Road in Greenwell Springs Road he struck the right Mr Graves and his on following which the trial Rogers and against Allstate awarding 6 891 89 in for previously paid by Allstate signed Ms Rouge Louisiana Springs Rogers filed suit against to a bench trial general damages coverage carrier Greenwell on Company hereinafter collectively referred diminished value of her vehicle a total to Ms 282 00 in 11 208 19 Rogers in its capacity as judgment special damages property damage and award of liability to as defendants court rendered Mr Graves was dismissed from the matter with 1 534 30 for the less Ms a credit for Rogers collision prejudice The trial judgment in accordance with these findings on October 27 2005 It is from this s automobile accident Rogers vehicle proceeded in favor of Ms court defendant result of the accident Ms a The matter court an to cross the eastbound left turn lane of Greenwell Allstate Insurance 6 891 89 result of turning lane of Greenwell Springs Road preparing to turn same time the south side of Greenwell front as a its intersection with Joor Road in Baton near Graves plaintiff Pamela Rogers suffered personal injuries and action of judgment that Ms allowing Allstate previously been made to Ms a Rogers appealed credit for the Rogers under her 2 assigning error to the trial property damage payment that had own collision insurance policy Allstate and Mr Graves answered the the amount of appeal raising issues regarding the allocation of fault and 1 damages APPLICATION OF COLLATERAL SOURCE RULE On appeal Ms Rogers argues the trial allowing Allstate own a credit for the property collision coverage carrier property damage payment for herself collateral Ms rule and assert the trial court she lIowing such a had to Ms a credit correctly held the collateral source as was in derogation of the proceeds of In response defendants rule does not mandate double injured party and the tortfeasor share the was legally and conventionally subrogated Rogers after Allstate paid her collision damages arguing by her Noting that this to the defendants the paid the premiums Defendants contend Allstate insurer made by through insurance that she had procured and paid to the tortfeasor s insurer where the liability 6 891 89 to be Allstate happened actually expropriated insurance coverage for which same made Rogers maintains that source damage payment which also was court violated the collateral source rule Defendants continue in brief follows Normally Allstate would have intervened to recover its payments if Ms Rogers prevailed on liability But Allstate did not intervene in this suit because it would have been suing itself Instead Allstate asserted the affirmative defense of a credit and or offset in its Answer as the liability insurer of Mr Graves expressed Following a That is in accord with the doctrine of confusion in Louisiana Civil Code Article 1903 thorough review of the record and applicable law Rogers argument and find that the trial collateral source source jurisprudence of this state collateral may 1 Ry Co source not be rule is of a common Louisiana 2002 2349 rule p 6 law origin yet it error in not Ms applying the is well established in the Dep t of Transp and Dev La 5 20 03 an because of benefits received v Kansas City 739 Under the injured plaintiffs tort recovery 846 SO 2d 734 tortfeasor may not benefit and diminished In brief to this court appeal legal agree with rule The collateral Southern court committed we by the plaintiff from sources Allstate and Mr Graves indicated their intent to abandon the issue of quantum no discussion of same herein Thus there will be 3 on independent of the tortfeasor s procuration 2301 14 p 11 3 95 La 1 Or 6 23 95 App contribution or 657 So 2d 697 Sutton lambert v 94 95 1859 La writ denied 706 661 So 2d 1384 According 1 to Restatement Second of Torts 9 920A 1979 A payment made by a tortfeasor or by a person acting for him to a person whom he has injured is credited against his tort liability as are payments made by another who is or believes he is subject to the same tort liability 2 Payments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor s liability although they cover all or a part of the harm for which the tortfeasor is liable Thus become a benefit as a benefit that is directed to the windfall for the tortfeasor by maintaining his own arrangements the law allows him Torts 9 920A injured party should and if the insurance to plaintiff was himself responsible for the or by making advantageous employment keep it for himself See Restatement Second of comment b At the close in of the evidence the instant judgment from the bench in favor of Ms Rogers to be awarded to Ms had not be shifted so as to Rogers question a the trial court rendered case After the court itemized the arose as to the damages property damage payment that previously been made to Ms Rogers by Allstate in its capacity as her insurer colloquy followed MR FORRESTER Your honor the plaintiff did testify that she had been paid for her property damage though That testimony is undisputed Allstate paid for her property damage MR elected SHOWS Her not to own subrogate element of her damages MR FORRESTER Allstate is not insurer Under Your paid for her property damages and collateral honor that source both insureds s a collectible were Allstate to sue itself to going theory of confusion You Therefore cannot sue the collateral get its money back So that s the yourself to get your money back source And this plaintiff would be recovering is rule does not apply in this case not within the law your honor clearly MR SHOWS Graves that we collision her If same Mr Graves is the at fault seek to have cast in carrier subrogation If they under collateral Your honor twice from the her judgment just damages they have she still has the 4 party It is Mr as in any other pays elect not to exercise it source party and that a right of she still has that loss and right to recover those damages This That s collateral It source s classic collateral a The fact source preferred and Allstate assigned that they didn t handle this matter as independently and as conflict free as they should have does not mean they are absolved of the effects of the collateral source rule and we are content to have that judgment against Mr Graves because it is Mr Graves negligence that brought us here today and for which we that one Allstate sued THE COURT Well outlined but the court will MR SHOWS are entitled to the court is a the court is give that her saying are ask the first circuit to a legal wise MR and THE COURT get in they But if rule is out the window might be in error giving this judgment Mr Shows I am not judgment in the interest of credit for what 500 00 deductible If this had been two different insurers The court has rendered a it but you will have to the court because the court believes it made just decision SHOWS believes that it source the court reverse as carrier pays her own damages and and she is not then able to recover surcharges her for those damages THE COURT Well judgment paid I understand that they going they waived her own those back then the collateral to render Allstate a credit for what it has Your honor credit where going was prepared in your favor to debate the issue like it or not The court justice and fair place that they should paid Now the judgment is against the defendant and Allstate If they ve paid they should get a credit and the court is going to allow them to have that credit MR That is what SHOWS brought THE COURT But that is us just it Mr Graves carrier has here This lady her own insurance paid Well the judgment is going to be against not paid Mr Graves and his creditor MR SHOWS And his creditor THE COURT I m sorry and his insurance carrier MR SHOWS But Mr Graves is not cast in judgment for the property damage THE COURT in judgment but the MR SHOWS Mr Graves is cast in insurance judgment counselor He is cast 2 carrier is going to get a credit Thank you your honor 2 Although in the trial transcript the court clearly stated Mr Graves would be cast in judgment the October judgment dismissed Mr Graves from the matter with prejudice When there is a conflict between the transcript and the judgment the judgment prevails See Spiers v Roye 2004 2189 p 8 n 5 La App 1 Cir 2 10 06 927 So 2d 1158 1163 n 5 set aside in part on other grounds on rehearing Nonetheless while we note this discrepancy in our review of the record neither party has raised the issue as error on appeal Thus our discussion of same ends here 27 2005 5 The only evidence in the record concerning the payment made payment was to Ms made under her Mr Graves insurer as Rogers to Ms Moreover nor was property damage Ms Rogers that this testimony by policy of insurance and not capacity policy between Allstate and Ms Rogers there intervention an was was not in the suit filed by Allstate source rule See Sutton 657 So 2d 697 706 writ denied Lambert v 95 1859 by legally subrogated the trial court erred in not credit for the Thus applying the collateral source property damage payment made we reverse that in its case 15 p La 661 So 2d capacity Accordingly as Ms we find Allstate is not entitled to rule to Ms 94 2301 11 3 95 La note there is no evidence in the record that Allstate we Rogers collision carrier had any right of subrogation in this policy in its Rogers after paying her collision damages which would have precluded the App lOr 6 23 95 a by Allstate although defendants argue that Allstate application of the collateral 1384 own The insurance introduced into evidence Ms is the Rogers by Allstate 6 891 89 Rogers under her collision portion of the judgment that awarded Allstate a credit of 6 891 89 ALLOCATION OF FAULT In answering Ms Rogers appeal defendants contend the trial of 100 percent of the fault to Mr driving Rogers as Graves fairly reckless was and too manifestly fast for erroneous the defendants maintain that she should be assessed at least 75 causing the accident We find no merit to this a La App wrong Birdsall 1 Cir 4 8 98 Regional Electric v 710 So 2d 1164 apportionment of fault lowering or it should raising it to the highest the trial court s discretion Clement 1168 v Describing Ms congested conditions percent of the fault for on appeal in the absence of Construction Inc If court finds an appellate adjust the award but then only lowest or allocation factual matter within the sound discretion of the trier of fact and will not be disturbed error s argument It is well settled that the allocation of fault is manifest court 97 0712 a p clearly to the extent of point respectively that is reasonably within Frey 95 1119 95 1163 pp 7 8 La 1 16 96 6 4 666 So 2d 607 611 However when there is evidence before the trial court that upon its reasonable evaluation of court finding the appellate s Adams manifest standard demands error the fact finder heavily can be 549 So 2d 840 844 La exist the fact finder wrong aware the listener on s reasonable factual basis for the trial 2002 0448 La great deference to the trier of fact s error 1 Cir 11 14 01 813 So 2d 4 19 02 1090 The findings for only of the variations in demeanor and tone of voice that bear understanding and belief in what is said 1989 Thus where two Rosell ESCO v permissible views of the evidence choice between them cannot be s finding absent manifest Rouge 2000 0424 p 23 La App writ denied 698 a court should not disturb this Parish of East Baton v 804 So 2d 679 so credibility furnishes manifestly erroneous or clearly Id After hearing from four trial court made the witnesses who testified about the accident in following findings concerning the allocation of fault The court finds that favored street exiting a an the result of private drive a person not question the accident occurred in the a collision between a turning lane on the sic left hand driver having been aided and abetted by persons or a party hereto The court is of the as such was judgment The trial court as was entitled to opinion that petitioner had the right of way and proceed Therefore the court is going to grant prayed for presented with two versions of how the accident occurred Having thoroughly reviewed the testimony concerning the accident and mindful of the great deference fault we must afford the trier of fact was error supports the Considering the record court s conclusion that Mr we in its cannot say the trial court entirety Graves was we are 100 s assessment of satisfied that it percent at fault in reasonably causing this accident CONCLUSION For the above and that awarded Allstate a foregoing reasons we reverse 6 891 89 credit for the Rogers under her collision coverage In all other 7 that portion of the judgment property damage payment made to Ms respects the judgment is affirmed All costs associated with this appeal are assessed Company and Jimmy Graves REVERSED IN PART AFFIRMED IN PART 8 against defendants Allstate Insurance if STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2006 CA 0648 PAMELA ROGERS VERSUS JIMMY GRAVES JR AND ALLSTATE INSURANCE COMPANY DOWNING J I concur concurs The and reasoning may have been different if assigns reasons and result in the main opinion are correct subrogation had been properly pled and proven The result
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.
