Cynthia Smith Versus Charles Murret, and National General Insurance Company ( 2022 )

CYNTHIA SMITH NO. 21-CA-662
VERSUS FIFTH CIRCUIT
CHARLES MURRET, AND COURT OF APPEAL
NATIONAL GENERAL INSURANCE
COMPANY STATE OF LOUISIANA
ON APPEAL FROM THE FIRST PARISH COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 168-729, DIVISION "B"
HONORABLE PAUL A. BONIN, JUDGE PRO TEMPORE
August 03, 2022
HANS J. LILJEBERG
JUDGE
Panel composed of Judges Robert A. Chaisson,
Stephen J. Windhorst, and Hans J. Liljeberg
AFFIRMED
HJL
RAC
SJW
COUNSEL FOR PLAINTIFF/APPELLANT,
CYNTHIA SMITH
Nancy S. Silbert
Mark R. Wolfe
Michael J. Begoun
T. Daniel Pick
COUNSEL FOR DEFENDANT/APPELLEE,
CHARLES MURRET AND IMPERIAL FIRE AND CASUALTY INSURANCE
COMPANY
Christopher P. Lawler
Peter M. Donovan
LILJEBERG, J.
In this personal injury case, plaintiff appeals the trial court’s judgment
rendered in favor of defendants, dismissing her lawsuit with prejudice. For the
following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On January 27, 2020, plaintiff, Cynthia Smith, filed this lawsuit against
defendants, Charles Murret and Imperial Fire and Casualty Insurance Company
(“Imperial”),1 for damages she allegedly sustained in a motor vehicle accident that
occurred on February 18, 2019, in Jefferson Parish. In her petition for damages,
Ms. Smith asserted that she was driving eastbound in the far left lane of Veterans
Boulevard near its intersection with Division Street and, as she was stopping for
traffic ahead of her, she was struck from behind by a vehicle driven by Mr. Murret.
Ms. Smith asserted that she suffered personal injuries, including lower back pain,
due to the accident. On March 5, 2020, Mr. Murret and Imperial filed an Answer
in which they denied any fault for the accident and asserted that Ms. Smith was
solely at fault for “improperly backing” her vehicle.
Trial of this matter was held on July 7, 2021. At trial, Ms. Smith testified
that on February 18, 2019, at around 12:30 p.m., she was driving in the far left lane
of Veterans Boulevard in Metairie on the way to her place of employment, Macy’s.
She testified that it was raining and there was lots of traffic. Ms. Smith indicated
that she stopped to allow a large truck to merge into her lane near a red light at the
intersection of Veterans Boulevard and Division Street. She stated that she was
stopped for a minute or two when she heard and felt a loud bump and noticed Mr.
Murret had hit her car from behind. She stated that when she got out of her car,
she told Mr. Murret that he hit her car, but he replied that she had backed into him.
1
Initially, the petition for damages incorrectly named National General Insurance Company as Mr.
Murret’s insurer.
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Ms. Smith testified that her left rear bumper was “kind of pulled” and “hanging a
little bit,” and the insurance adjuster estimated that there was $54 worth of
damage.2
Ms. Smith indicated that she told the police officer that she was not injured
and went to work after the accident, but she began to feel lower back pain the next
day. However, her medical records indicate that she told her doctor that she
immediately experienced pain after the accident. Ms. Smith was treated at Spine
Care of Metairie a few days after the accident through July 26, 2019.
Charles Murret testified that the accident took place on Veterans Boulevard
near the intersection with Division Street. He stated that he and Ms. Smith were
both in the left lane next to the “neutral ground.” Mr. Murret stated that Ms.
Smith’s car was behind a large tow truck and that he was directly behind Ms.
Smith. According to Mr. Murret, Ms. Smith started to back up, as if she was
attempting to change lanes, and he blew his horn, but she did not stop until she hit
his bumper. Mr. Murret stated that Ms. Smith jumped out of her car and told him
that he hit her car, but he replied, “No way, I could hit your car, if I’m stopped.”
Mr. Murret testified that he was not hurt in the accident, and the police officer did
not issue a citation to either driver.
On July 8, 2021, the trial court rendered a judgment in favor of defendants,
dismissing Ms. Smith’s lawsuit with prejudice. In its reasons for judgment, the
trial court found that Mr. Murret’s testimony that the accident was caused when
Ms. Smith backed into his truck was consistent with his prior statements to Ms.
Smith, the investigating traffic officer, and his answers to interrogatories.
However, the court stated that Ms. Smith’s testimony about her vehicle’s
movement or non-movement before the accident was inconsistent with statements
made in her answers to interrogatories and statements attributed to her by her
2
A copy of the repair estimate of $54.60 was admitted into evidence.
21-CA-662 2
healthcare providers. The trial court stated that Ms. Smith’s credibility was also
undermined by her inconsistent statements about the onset of her pain and its
duration and intensity. The court also noted that there was no appreciable damage
to Ms. Smith’s car and no damage to Mr. Murret’s car, and stated that it was
“unconvinced that Mr. Murret’s truck rear-ended Ms. Smith’s car.” Ms. Smith
appeals the trial court’s judgment.
LAW AND DISCUSSION
On appeal, Ms. Smith argues that the trial court erred by disregarding
evidence of how the accident occurred, and by failing to apply the presumption
that the following motorist in a rear-end collision is liable. She argues that it is
undisputed that she was driving the lead vehicle and that a “disagreement of the
facts should not negate a legal presumption.” Ms. Smith contends that the
evidence presented at trial supports the finding that Mr. Murret was negligent and
caused the accident. She states that Mr. Murret’s contention that she backed up
because she wanted to change lanes is simply conjecture and speculation.
Mr. Murret and Imperial respond that the trial court was not required to
apply the presumption that the following motorist in a rear-end collision is liable,
because a rear-end collision did not occur. They argue that Ms. Smith backed into
Mr. Murret’s vehicle in an effort to go around the truck that had merged in front of
her. They assert that the trial court made appropriate credibility determinations
when finding defendants were not liable, noting that there were inconsistencies
between Ms. Smith’s testimony and other documents. Specifically, they note that
Ms. Smith’s petition for damages and answers to interrogatories indicate that she
was slowing or stopping when the accident occurred, but she testified at trial that
she was stopped for a minute or two before the accident occurred. They also note
that the police report indicates Ms. Smith stated that a truck “cut in front of her
21-CA-662 3
vehicle from the middle lane, causing her to stop in the far left lane,” but she
testified that she allowed the truck to merge in front of her.
In civil cases, the appropriate standard for appellate review of factual
determinations is the manifest error-clearly wrong standard which precludes the
setting aside of a trial court's finding of fact unless the finding is clearly wrong in
light of the record reviewed in its entirety. Morgan v. Louisiana Dept. of Transp.
and Development, 06-615 (La. App. 5 Cir. 1/16/07), 951 So.2d 408, 411; Rosell v.
ESCO, 549 So.2d 840 (La. 1989). A reviewing court may not merely decide if it
would have found the facts of the case differently. Hall v. Folger Coffee Co., 03-
1734 (La. 4/14/04), 874 So.2d 90, 98. Rather, in order to reverse a trial court’s
factual conclusions, there must be no reasonable factual basis for the conclusion
and the finding must be clearly wrong. Hayes Fund for First United Methodist
Church of Welsh, L.L.C. v. Kerr-McGee Rocky Mountain, L.L.C., 14-2592 (La.
12/8/15), 193 So.3d 1110, 1115-1116; Stobart v. State, Department of
Transportation and Development, 617 So.2d 880 (La. 1993);
When the trial court's findings are based on determinations regarding the
credibility of witnesses, the manifest error standard demands great deference to the
fact finder's conclusions, because “only the factfinder can be aware of the
variations in demeanor and tone of voice that bear so heavily on the listener's
understanding and belief in what is said.” Rosell, 549 So.2d at 844; Palmisano v.
Ohler, 16-160 (La. App. 5 Cir. 12/7/16), 204 So.3d 1134, 1137-38. Where there is
a conflict in the testimony, reasonable evaluations of credibility and reasonable
inferences of fact should not be disturbed upon review, even if the appellate court
may feel that its own evaluations and inferences are as reasonable. Desselle v.
Jefferson Hosp. Dist. No. 2, 04-455 (La. App. 5 Cir. 10/12/04), 887 So.2d 524,
528.
21-CA-662 4
At trial, the parties agreed that Ms. Smith was in the eastbound left lane of
Veterans Boulevard behind a truck that had merged into her lane and Mr. Murret
was traveling directly behind Ms. Smith. Ms. Smith testified that she had stopped
to allow the truck to merge into her lane and was stopped for a minute or two when
she heard and felt a loud bump and noticed Mr. Murret’s vehicle had hit her car
from behind. Conversely, Mr. Murret testified that Ms. Smith started to back up,
as if she was attempting to change lanes, and he blew his horn, but she did not stop
until she hit his vehicle. No other witnesses were called to testify as to how the
accident occurred.
Where two permissible views of the evidence exist, the factfinder’s choice
between them cannot be manifestly erroneous. Henderson v. Nissan Motor
Corporation, 03-606 (La. 2/6/04), 869 So.2d 62, 69. If a trier of fact’s findings are
reasonable in light of the record reviewed in its entirety, an appellate court may not
reverse even if convinced that if it had been sitting as trier of fact, it would have
weighed the evidence differently. Kraemer v. Joseph, 04-270 (La. App. 5 Cir.
9/28/04), 885 So.2d 22; Stobart, supra.
In the present case, the trial court was presented with two conflicting
versions of how the accident occurred and had to make credibility determinations
to determine whether Mr. Murret was at fault. After considering the testimony and
evidence, the trial court rejected Ms. Smith’s testimony regarding how the accident
occurred, indicating that it did not believe Mr. Murret’s truck rear-ended Ms.
Smith’s car. Based on the conflicting testimony, the trial court’s decision to find
that Mr. Murret’s truck did not rear-end Ms. Smith’s car was reasonable and thus,
it was not manifestly erroneous.
Ms. Smith argues that the trial court erred by failing to apply the
presumption that a following motorist is at fault for a rear-end collision. Mr.
21-CA-662 5
Murret and Imperial respond that the following motorist presumption does not
apply in this case.
La. R.S. 32:81(A) provides:
The driver of a motor vehicle shall not follow
another vehicle more closely than is reasonably
prudent, having due regard for the speed of such
vehicle and the traffic upon and the condition of
the highway.
The law has established a rebuttable presumption that a following motorist
who strikes a preceding motorist from the rear has breached the standard of
conduct set forth in La. R.S. 32:81 and is therefore liable for the accident. Daigle
v. Mumphrey, 96-1891 (La. App. 4 Cir. 3/12/97), 691 So.2d 260, 262; McGowan v.
Loupe, 08-810 (La. App. 5 Cir. 3/24/09), 11 So.3d 24, 26. This presumption is
based on the idea that a following motorist whose vehicle rear-ends a preceding
vehicle either has failed to maintain a sharp lookout or has followed at a distance
from the preceding vehicle which is insufficient to allow him to stop safely under
normal circumstances. Antill v. State Farm Mutual Insurance Co., 20-131 (La.
App. 5 Cir. 12/2/20), 308 So.3d 388, 403; Daigle, 691 So.2d at 262.
In order for the presumption to apply, the following motorist must strike the
preceding motorist’s vehicle. In this case, Mr. Murret testified that he did not
strike the back of Ms. Smith’s vehicle, but rather Ms. Smith backed into his
vehicle. The trial court stated that it was unconvinced that Mr. Murret’s truck
struck the rear of Ms. Smith’s vehicle. Because the trial court did not find that Mr.
Murret’s truck struck the rear of Ms. Smith’s vehicle, the following motorist
presumption does not apply in this case.
In a negligence action, the plaintiff bears the burden of proving fault,
causation, and damages. Wainwright v. Fontenot, 00-492 (La. 10/17/00), 774
So.2d 70, 74. In this case, the trial court found that Ms. Smith did not meet her
burden of proving that Mr. Murret was at fault for the accident. We find no
21-CA-662 6
manifest error in the trial court’s finding. Accordingly, the trial court’s decision to
dismiss Ms. Smith’s lawsuit against Mr. Murret and Imperial must be affirmed.
DECREE
For the foregoing reasons, we affirm the trial court’s July 8, 2021 judgment
in favor of defendants, dismissing Ms. Smith’s lawsuit with prejudice.
AFFIRMED
21-CA-662 7
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
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www.fifthcircuit.org
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I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
AUGUST 3, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:
21-CA-662
E-NOTIFIED
FIRST PARISH COURT (CLERK)
HONORABLE JOHN J. LEE, JR. (DISTRICT JUDGE)
MARK R. WOLFE (APPELLANT) T. DANIEL PICK (APPELLANT) CHRISTOPHER P. LAWLER (APPELLEE)
MAILED
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