Frederick Franklin VS AIG Casualty Company, CRST, Inc., and Orlando Stanley (2012CA1698 Consolidated With 2012CA1699)
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCLTIT NO 2012 CA 1698 FREDRICK FRANKLIN VERSUS G AIG CASUALTY COMPANY CRST INC AND ORLANDO STANLEY CONSOLIDATED WITH NO 2012 CA 1699 OLD REPUBLIC LIFE INSURANCE COMPANY VERSUS CRST VAN EXPEDITED INC ORLANDO L STANLEY AND AIG INSUItANCE COMPANY Judgment Rendered N o 7 2 3 On Appeal from the 21st Judicial District Court In and for the Parish of Livingston State of Louisiana Trial Court No 125466 Consolidated With Trial Court No 125873 Honorable Ernest G Drake Jr Judge Presiding Steven A DeBosier Attorneys for Plaintiff Appellee Jill LeBlanc Fredrick Franklin Brady Baton Rouge LA Michael H Rubin Jamie D Attorneys for Defendants Appellants CRST International Inc Orlando Stanley Seymour Brook L Thibodeaux and New Hampshire Ins Co Baton Rouge LA Paul A Eckert New Orleans LA Willie G Johnson Baton Rouge LA Jr Attorney for Plaintiff Appellee Intervenar Old Republic Life Insurance Company BEFORE WHIPPLE C McCLENDON AND HIGGINBOTHAM JJ J 2 HIGGINBOTHAM J This action arises out of a parking lot collision that occurred at a truck stop in Denham Springs on October 12 2008 The collision was between the cab tractor portions of two eighteen trucks Because plaintiff Fredrick wheeler Franklin was injured in the collision and underwent eatensive medical treatment that included two back surgeries he filed suit against the other driver Orlando Stanley Mr Stanley employer CRST International Inc CRST and CRST s s liability insurer New Hampshire Insurance Company New Hampshire defendants hereafter collectively referred to as Chartis In this memorandum opinion we affirm a summary judgment that was granted against Chartis and in favor of intervenor Old Republic Life Insurance Company Old Republic The summary judgment allowed Old Republic the occupational accident insurer for Mr Franklin to recover 98 from Chartis 65 402 on a subrogated claim for medical expenses and disability benefits paid to or on behalf of Mr Franklin as a result of the accident Because there are three appeals that have been filed in connection with this case we refer to this particular appeal of the subrogation summary judgment as Franklin 1 s Chartis also appealed from another summary judgment hereafter referred to as Franklin 2 which was signed on the same day as the subrogation summary On November 12 2009 two cases azising out of the accident at issue were consolidated in the 21st Judicial District Court in Livingston Pazish Fredrick Franklin v AIG Casualty Company CRST Inc and Orlando Standey Trial Court Number 125466 was consolidated with Old Republic Life Insurance Company v CRST Van Expedited Inc Orlando L Stanley and AIG Insurance Company Trial Court Number 125873 This court declined to consolidate the three appeals that arose out of these related matters however the appeals were all assigned to the same panel for consideration on the same docket See Franklin v AIG Casualty Company 1698 w 1699 0069 w 0070 2012 c 2012 2013 c 2013 and 2013 c 2013 La App 0226 w 0227 lst Cir 2 order A full recitation of the factual and procedural background unpublished 13 15 is contained in our opinion in one of the companion appeals Franklin v AIG Casualty Company 2013 c 2013 La App lst Cir 6 0226 w 0227 unpublished 13 Franklin 3 7 2 Citations for all three appeals aze Franklin v AIG Casualty Company 2012 c 1698 w 1699 2012 La App lst Cir 6 Franklin 1 Franklin v AIG Casualty unpublished 13 7 Company 2013 c 2013 La App lst Cir 6 0069 w 0070 unpublished 13 Franklin 2 7 and Franklin v AIG Casualty Company 2013 c 2013 La App lst Cir 0226 w 0227 unpublished 13 7 6 Franklin 3 3 judgment in favor of Mr Franklin on the issues of liability causation employee status and insurance coverage Essentially the Franklin 2 liability causation summary judgment declared that 1 Mr Stanley was acting within the course and scope of his employment with CRST at the time of the accident 2 Mr Stanley was 100 at fault in causing the accident and 3 CRST liability insurer New s Hampshire provided coverage for the negligent conduct of CRST employee Mr s Stanley The liability summary judgment further declared that the causation accident was the sole cause of Mr Franklin back and neck injuries and his s subsequent medical treatment including future lumbar fusion surgery which has been recommended by Mr Franklin treating physician s Additionally Chartis filed a third appeal from the final judgment hereafter referred to as Franklin 3 which was rendered afrer a jury trial on the merits regarding the only remaining issue conceming quantum for Mr Franklids personal injury damages One day after the summary judgments were rendered by the trial court a two jury trial took place At the conclusion of the trial the day jury entered a verdict in favor of Mr Franklin and against Chartis awarding Mr Franklin a total amount of 1for damages arising out of the accident 10 079 557 Chartis filed three separate appeals two appeals concemed the pretrial summary judgments and one appeal related to the jury verdict Chartis raised and briefed the same three assignments of error in each appeal all concerning the amounts awarded by the jury to Mr Franklin for damages relating to his past and future lost wages and loss of earning capacity Absolutely no assignments of error or arguments contained in any of Chartis briefs pertain to either of the summary s judgments rendered prior to trial Because Chartis did not assign brief or argue any errors concerning the subrogation summary judgment at issue in this Franklin 1 appeal any potential 4 issues or errors related to that summary judgment are hereby deemed abandoned Uniform Rules Courts of Appeal Rules 1 and 2 Herbert v Placid 3 4 12 Refining Co 564 So 371 372 n2 La App lst Cir writ denied 469 So 2d 2d 981 La 1990 Juneau v Louisiana Bd of Elementary and Secondary Educ on Behalf of Louisiana Special Educ Center 506 So 756 757 n La App 2d l lst Cir 1987 Stuart v City of Morgan City 504 So 934 936 La App 2d 937 1 st Cir 1987 McGowan v Ramey 484 So 785 788 La App 1 st Cir 1986 2d Vining v Bardwell 482 So 685 694 La App 1 st Cir 1985 writ denied 487 2d 2d So 439 La 1986 Ketcher v Illinois Central Gulf R Co 440 So 805 2d 808 La App lst Cir 1983 writs denied 444 So 1220 1222 La 1984 2d Therefore since Chartis has not pointed out any enor in the trial court action of s granting the Franklin 1 subrogation summary judgment we conclude that it must be affirmed Furthermore in its appellate brief the intervenar Old Republic raised an issue asserting that the trial court erred in rendering the subrogation summary judgment subject to Mr Franklin request for recovery of attorney fees s s However the law is clear that if an appellee desires to have a judgment modified revised or reversed in part an answer to the appeal must be filed See La Code 3 We are mindful of the supreme court decision in Nicholas v Allstate Ins Co 99 La s 2522 00 31 8 765 So 1017 1022 where it was emphasized that assignments of error are 2d 1023 necessary as required by Uniform Rules Courts of Appeal Rule 1 unless the interest of 3 justice clearly requires otherwise and that La Code Civ P art 2129 provides that an assignment of enors is not necessary in any appeal However we find that this case is distinguishable from those where an appellate court considers issues not specified or assigned as error when the interest of jusrice clearly requires otherwise Absolutely no argument is made or implied in any of the Chartis briefs or at oral argument regazding the summary judgments that were basically uncontested in the trial court Thus even liberally construing Chartis arguments on quantum made in its briefs in each appeal we do not find that this is one of those instances where the interest of justice clearly requires or compels us to review the propriety of the trial sactions regarding the summary judgments court 4 A rule uniformly established in an old line of jurisprudence is that a trial court judgment is presumptively correct and it is the appellanYs duty to point out any error in the judgment appealed otherwise the appellate court may rely upon the presumption and affirm See State Through Dept of Highways v Metropolitan Life Ins Co 168 So 889 891 La App 2d 2d Cir 1964 5 Civ P art 2133 See also Augustus v St Mary Parish School Bd 95 2498 La App lst Cir 6 676 So 1144 1156 96 28 2d Old Republic did not file a written answer to any of Chartis appeals nor did it properly move for and file its s own appeal of the subrogation summary judgment in accordance with La Code Civ P arts 2133 and 2121 Thus we are precluded from addressing the issue of the propriety of the subrogation summary judgment award made subject to Mr s Franklin request for attorney fees s Accordingly we hereby affirm the subrogation summary judgment dated July 16 2012 and we issue this memorandum opinion pursuant to Uniform Rules Courts of Appeal Rule 2 All costs of this appeal are assessed to B 1 16 appellants defendants Orlando Stanley Hampshire Insurance Company AFFIRMED 6 CRST International Inc and New
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