Melissa Jo Davis v. Allstate Property & Casualty Insurance Company and Jonathan Len Anthony ( 2019 )

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NUMBER 2019 CA 0285
r
MELISSA JO DAVIS
VERSUS
ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY AND
JONATHAN LEN ANTHONY
Judgment Rendered: NOV 15 2019
Appealed from the
Twenty -First Judicial District Court
In and for the Parish of Tangipahoa
State of Louisiana
Docket Number 2016- 0000472
Honorable Charlotte H. Foster, Judge Presiding
William R. Mustian, III Counsel for Plaintiff/Appellant,
Metairie, LA Melissa Jo Davis
Dan Richard Dorey Counsel for Defendant/Appellee,
Covington, LA Louisiana Farm Bureau Casualty
Insurance Company
BEFORE: WHIPPLE, C.J., GUIDRY, AND CRAIN, JJ.
WHIPPLE, C.J.
Plaintiff, Melissa Jo Davis, appeals from a judgment of the trial court in
favor of defendant, Louisiana Farm Bureau Casualty Insurance Company,
dismissing her suit with prejudice. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
On November 18, 2015, at approximately 4: 05 p.m., plaintiff was backing
her 2008 Toyota Corolla out of a parking spot off of, and perpendicular to, East
Oak Street' between South Myrtle and South Bay Streets in Amite. As she backed
out, her vehicle collided with a 2013 Chevrolet Silverado truck driven by Jonathan
Anthony, who was travelling west on East Oak Street.
Plaintiff thereafter filed a petition for damages for injuries allegedly
sustained as a result of this accident against Mr. Anthony and his insurer, Allstate
Property and Casualty Insurance Company (" Allstate"). Following a settlement,
plaintiffs claims against Allstate and Mr. Anthony were dismissed with prejudice
pursuant to a joint motion and order of dismissal.2
Plaintiff also filed a supplemental petition for damages against her insurer,
Louisiana Farm Bureau Casualty Insurance Company (" Farm Bureau"), seeking
LTM benefits, contending that the policy limits from Mr. Anthony' s insurance
policy were insufficient to fully compensate plaintiff for her damages. Farm
Bureau answered the petition, averring that plaintiff' s comparative negligence,
failure to mitigate her damages, and pre- existing and/or superseding or intervening
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medical conditions precluded plaintiff from any further recovery.
The matter proceeded to trial on October 1, 2018. Following the submission
of post -trial memorandums, the trial court issued written reasons for judgment in
Oak Street also serves as Louisiana Highway 16.
2Allstate tendered plaintiff the liability policy limits of $15, 000.00.
3Farm Bureau issued plaintiff $5, 000. 00 in medical payments coverage benefits.
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favor of Farm Bureau and against plaintiff, finding that " the testimony of every
witness called at trial contained multiple inconsistencies and therefore the plaintiff
simply did not prove by a preponderance of the evidence that [ Mr. Anthony] was at
fault in causing the crash that resulted in plaintiff's damages." On November 12,
2018, the trial court signed a judgment, dismissing plaintiff' s suit against Farm
Bureau with prejudice and ordering each party to bear their own costs.
Plaintiff now appeals, contending that the trial court erred in: ( 1) finding
that plaintiff failed to prove her case by a preponderance of the evidence based
upon the court' s finding that the testimony of every witness contained multiple
inconsistencies; ( 2) failing to make credibility assessments of the witnesses at trial;
3) failing to weigh the testimony of the witnesses; and ( 4) not finding Mr.
Anthony at fault in causing the accident.
DISCUSSION
Assignments of Error Numbers One, Two, and Three
As set forth above in these assignments of error, plaintiff essentially
challenges the factual findings of the trial court as reflected in the trial court' s
reasons for judgment. Specifically, plaintiff contends the court erred in finding
that she failed to prove her case by a preponderance of evidence, and challenges
the trial court' s statement in its reasons for judgment that the testimony of every
witness contained multiple inconsistencies. Plaintiff further argues the trial court
erred in failing to make credibility assessments and weigh witnesses' testimony,
citing the absence of such in any discussion in its reasons for judgment. Plaintiff
argues that the trial court failed to reconcile any inconsistent testimony, noting that
i] n its Reasons for Judgment, the trial court did not discuss any weight or
credibility that it gave to any particular witness."
The trial court' s reasons for judgment provide, in pertinent part:
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T] he testimony of every witness called at trial contained
multiple inconsistencies and therefore plaintiff simply did not prove
by a preponderance of the evidence that Jonathan Len Anthony was at
fault in causing the crash that resulted in plaintiff' s damages.
Although plaintiff contends the trial court' s reasons for judgment are
defective for lack of specificity or detail, and evidence error by the trial court, we
note that as an appellate court, we review judgments and not reasons for judgment.
Walton v. State Farm Mutual Automobile Insurance Company, 2018- 1510 ( La.
App. 1st Cir. 5/ 31/ 1. 9), 277 So. 3d 1193, 1199. Indeed, judgments are often upheld
on appeal for reasons different than those assigned by a trial court. Wooley v.
Lucksinger, 2009- 0571 ( La. 4/ l/ 11), 61 So. 3d 507, 572. The written reasons for
judgment are merely an explication of the trial court' s determinations. They do not
alter, amend, or affect the final judgment being appealed. Walton v. State Farm
Mutual Automobile Insurance Company, 277 So. 3d at 1199. Accordingly, the job
of the appellate court is to review the trial court' s judgment, not its reasons for
judgment. Wooley v. Lucksing r, 6:1. So. 3d at 572.
We nonetheless note that to the extent that plaintiff contends that the trial
court' s reasons for judgment failed to indicate how it reconciled conflicting
testimony, or whether it reconciled conflicting testimony, a weighing of the
testimony and a determination of the credibility to be given to the witnesses'
testimony is implicit in the trial court' s ultimate ruling that plaintiff failed to prove,
by a preponderance of the evidence, that Mr. Anthony was at fault. As further set
forth in our discussion of the remaining assignment of error, the ultimate
determination of the trial court as to fault is amply supported by the record.
We find no merit to these three assignments of error.
Assignment of Error Number Four
In plaintiffs fourth assignment of error, she contends that the trial court
erred in finding that she failed to prove that Mr. Anthony was at fault in causing
the accident by a preponderance of the evidence.
A determination of fault is a factual determination. McDowell. v. Diggs,
201.7- 0755 ( La. App. l" Cir. .10/ 3/ 18), 264 So. 3d 489, 493. In order to reverse a
factual determination by the trier of fact, this court must find that a reasonable
basis does not exist for the finding and that the record establishes that the finding is
clearly erroneous. Stobart v. State, Department of Transportation and
Development, 617 So. 2d 880, 882 ( La. 1993).
Appellate courts review apportionment of fault under the manifest error -
clearly wrong standard of review. Schexnqyder v. Bridges, 2015- 0786 ( La. App.
I" Cir. 2/ 26/ 16), 190 So. 3d 764, 773. The manifest error standard demands great
deference to the fact finder' s conclusions; for only the fact finder 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. Pinn v. Pennison, 2016- 0614 ( La. App.
I" Cir. 12/ 22/ 18), 209 So. 3d 844, 847. Moreover, when factual findings are based
on credibility determinations the manifest error standard of review demands great
deference to the trier of fact' s findings. Rosell v. ESCO, 549 So. 2d 840, 844 ( La.
1989). Where there are two permissible views of the evidence, the fact finder' s
choice between them cannot be manifestly erroneous. Rosell v. ESCO, 549 So. 2d
at 844; McDowell v. Diggs, 264 So. 3d at 494.
A preponderance of the evidence means evidence that is of greater weight
than that which is offered in opposition thereto. Wiley v. Department of Health
and flospitals, 22015- 1984 ( La. App. I' t Cir. 9/ 16/ 16), 203 So. 3d 1085, 1088.
Proof is sufficient to constitute a preponderance when, taken as a whole, it shows
the fact of causation sought to be proved is more probable than not. Brown v.
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Department of Health and. Hospitals Eastern Louisiana Mental Health System,
2004- 2348 ( La. App. 1" Cir. 11/ 4/ 05), 917 So. 2d 522, 527, writ denied, 2006-
0178 ( La. 4/ 24/ 06), 926 So. 2d 545.
Thus, applying these precepts, our only inquiry at this stage is whether the
trial court's factual findings of fault were reasonable, regardless as to how we may
have weighed the evidence differently if we were sitting as the trier of fact. See
Pinn v. Pennison, 209 So. 3d at 848.
Plaintiff testified that at the time of the accident, she was employed as a
clerk in the property tax department of the Tangipahoa Parish Sheriff' s Office and
was leaving work for the day. She stated that she parked her car in a parking spot
in the middle of the block about eleven spaces from the stop sign so she could
see" when she backed out onto Oak Street. Plaintiff testified that she got into her
car, looked both ways, and saw that there was a car coming to the right. According
to plaintiff, she then waited for the car to pass before backing out. Plaintiff stated
that after the car cleared, she began backing out, when all of a sudden, she was hit
on the rear driver' s side of her vehicle. She testified that she was not really sure
what happened after she started to back out, and she admitted. that she never saw
Mr. Anthony' s truck prior to the accident.
Mr. Anthony testified that just before the accident, he picked up his seven-
year- old son. : from daycare on Myrtle Street, and he then. proceeded to the
intersection. of Myrtle and Oak Streets. He stated that after coming to a stop at the
stop sign, he made a left turn and proceeded west on Oak Street for about 150 feet,
when the front passenger side of his truck was struck by the rear of plaintiffs
vehicle. Mr. Anthony testified that the accident happened very quickly and that he
did not see plaintiff' s vehicle before it hit him. He stated that plaintiff backed
straight out of the parking spot and that there was nothing he could have done to
avoid the accident. Mr. Anthony stated that the rear end of plaintiffs vehicle
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struck the front passenger door of his truck behind the front passenger tire and that
there was no damage to the front center bumper of his truck. Mr. Anthony denied
that his vehicle struck the rear of plaintiff' s vehicle as it was backing out. Mr.
Anthony testified that he did not apply his brakes before the accident because he
did not see plaintiff' s vehicle before it struck him. He described it as a " sudden.
impact" from. the side as he travelled down the street.
Sergeant Eric Simmons of the Anite City Police Department was dispatched
to the scene to investigate the accident. After speaking to plaintiff and Mr.
Anthony, Sgt. Simmons concluded that a contributing factor to the accident was
plaintiff' s violation of " improper backing" and that plaintiff was " inattentive."
Sgt. Simmons testified that he noted the violation by plaintiff in his report because
motorists are supposed to look back and make sure the roadway is clear before
backing up into the roadway. The officer' s report further indicates that plaintiff' s
vehicle was at an angle when the accident occurred, however, both plaintiff and
Mr. Anthony testified that plaintiff was facing north and was backing straight out
of the parking spot when the accident occurred. Sgt. Simmons did not issue a
citation to either driver.
Sgt. Simmons testified that although he had no independent recollection of
speaking with either driver at the time of trial, he would defer to the findings set
forth in his report, which indicated that he spoke to both plaintiff and Mr. Anthony
at the scene of the accident. Plaintiff, however, denied speaking to the officer at
the scene of the accident. Also, while Sgt. Simmons recorded that Mr. Anthony
told him that the glare from the sun was in his eyes and that he did not see
plaintiffs vehicle backing out, Mr. Anthony denied making any such statement
and testified that there must have been a misunderstanding, because when Sgt.
Simmons asked him what happened, Mr. Anthony replied that he did not know,
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and. told the officer that maybe the sun was in plaintiffs eyes and she did not see
him.
Marcie Renee Chadwick, a co- worker of plaintiff, testified that she was in.
her vehicle at the intersection of Myrtle and Oak Streets just before the accident
occurred. Ms. Chadwick testified that she was at the stop sign coming from North
Myrtle Street facing Mr. Anthony' s vehicle, which was at the stop sign. coming
from South Myrtle Street. After she and Mr. Anthony turned onto Oak. Street
heading in opposite directions, she witnessed the accident in her rearview mirror.
Ms. Chadwick testified that she saw Mr. Anthony' s truck strike the rear passenger
side of plaintiff' s vehicle. She further testified that from what she could tell,
plaintiff' s vehicle was not at an angle at the time of the accident. Ms. Chadwick
testified that prior to the accident, she did not see plaintiff' s vehicle moving or
backing out. Ms. Chadwick did not stop and return to the scene of the accident
that day, but she was asked by a deputy to give a statement the following day.
Photographs of the vehicles taken after the accident and introduced at trial
show damage across the rear and on the driver' s side rear corner of plaintiff s
vehicle and to the front passenger side of Mr. Anthony' s vehicle.
After thorough review of the evidence and conflicting testimony herein, we
find the record reasonably supports the trial court' s conclusion that plaintiff's
negligence was the sole cause of the accident. Louisiana law specifically provides
that the driver of a vehicle shall not back the same unless such movement can be
made with reasonable safety and without interfering with other traffic. LSA-R.S.
32: 281. Backing an automobile is considered a dangerous maneuver, and the law
imposes a high duty of care upon the driver attempting it. Rodrigue v. Firestone
Tire & Rubber Company, 540 So. 2d 477, 479 ( La. App. 1st Cir.), writs denied, 546
So. 2d 179, 180 ( La. 1989).
As the party backing her vehicle out onto Oak Street into oncoming traffic,
plaintiff had a high duty of care to ensure she could do so without interfering with
other traffic. As the record amply demonstrates, she breached the duty of ensuring
that such a maneuver could be made with reasonable safety, where Mr. Anthony
was already traveling on Oak Street at the time. Considering the applicable law
and the evidence presented herein, we find no; error in the trial court' s finding that
plaintiff failed to establish, by a preponderance of the evidence, that Mr. Anthony
was at fault in causing the accident.
Having thoroughly reviewed th.e conflicting testimony concerning the
accident, and mindful of the great deference we must afford the trial court as fact
finder, we are unable to say that the trial court' s fault determination was manifestly
erroneous or clearly wrong. Accordingly, we find no error in the ultimate ruling of
the trial court, and no merit to plaintiff' s assignment of error concerning the
finding of fault.
CONCLUSION
For the above and foregoing reasons, the November 12, 2018 judgment of
the trial court is hereby affirmed Costs of this appeal are assessed to the
plaintiff/appellant, Melissa Jo Davis.
AFFIRMED.
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