State Farm Fire v. Kansas City So Rwy

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-30712
Summary Calendar
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STATE FARM FIRE AND CASUALTY COMPANY,
Plaintiff-Appellee,
versus
KANSAS CITY SOUTHERN RAILWAY CO.,
Defendant-Appellee,
versus
SIMONELLI ENTERPRISES INC., doing business
as Simonelli Grocery,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
(2:94-CV-2213)
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January 10, 1997
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Simonelli Enterprises, Inc., challenges the adequacy of
damages awarded for lost profits by the district court following a
bench trial. Simonelli contends that the district court erred by
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
relying on the projection of future loss testified to by State
Farm’s expert witness, who relied on “national average” components.
Simonelli charges that this testimony was less reliable than that
of its expert or that of Kansas City Southern Railway Co.’s expert,
both of whose projections were derived using actual financial data
of the business.
In its findings of fact, the district court stated the State
Farm’s expert’s “calculations are the most detailed and reliable of
the lost profits figures presented to the court.” Needless to say,
“[t]he credibility determination of witnesses, including experts,
is peculiarly within the province of the district court.” Orduna
S.A. v. Zen-Noh Grain Corp., 913 F.2d 1149, 1154 (5th Cir. 1990).
We cannot say that the district court committed clear error by
accepting the testimony of State Farm’s expert over that of the
other two. Id. See also FED. R. CIV. P. 52(a); Anderson v. City of
Bessemer City, N.C., 470 U.S. 564, 573-74 (1985) (“Where there are
two permissible views of the evidence, the factfinder's choice
between them cannot be clearly erroneous.").
The judgment is, therefore,
AFFIRMED.
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