Jillian Duran v. George Silva, State Farm Mutual Automobile Insurance Company and Rob's Air Conditioning & Heating, Inc.

JILLIAN DURAN * NO. 2019-CA-0748

VERSUS *
COURT OF APPEAL
GEORGE SILVA, STATE *
FARM MUTUAL FOURTH CIRCUIT
AUTOMOBILE INSURANCE *
COMPANY AND ROB'S AIR STATE OF LOUISIANA
CONDITIONING & HEATING, *******
INC.

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2016-05183, DIVISION “N-8”
Honorable Ethel Simms Julien, Judge
******
Judge Dale N. Atkins
******
(Court composed of Chief Judge James F. McKay, III, Judge Paula A. Brown,
Judge Dale N. Atkins)

Charles M. Thomas
Mary E. Schonekas
HUBER THOMAS & MARCELLE, LLP
1100 Poydras Street, Suite 2200
New Orleans, LA 70163

COUNSEL FOR PLAINTIFF/APPELLANT

Michele Trowbridge Barreca
PORTEOUS HAINKEL & JOHNSON, L.L.P.
704 Carondelet Street
New Orleans, LA 70130

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED
MARCH 25, 2020

DNA
JFM This is a personal injury case that arises out of a bicycle and automobile
PAB
accident. Appellant, Jillian Duran (“Ms. Duran”) and Appellee, George Silva (“Mr.

Silva”) were involved in an accident on Christmas Eve in 2015. While riding her

bicycle to work through the French Quarter, Ms. Duran was struck by Mr. Silva,

who was driving a van owned by his employer, Rob’s Air Conditioning & Heating,

Inc. (“Rob’s HVAC”).

Ms. Duran filed a personal injury lawsuit against Mr. Silva, Rob’s HVAC,

and State Farm Mutual Automobile Insurance Company, Rob’s HVAC insurance

carrier, (collectively “Appellees”), for injuries she sustained from the accident. On

May 1, 2019, the trial court rendered judgment in favor of Appellees, dismissing

Ms. Duran’s lawsuit with prejudice. Ms. Duran now appeals. For the reasons that

follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In the early morning hours of December 24, 2015, Ms. Duran was traveling

by bicycle to her place of employment at Bittersweet Confections, Inc., located at

725 Magazine Street, New Orleans, Louisiana. On the way, she was struck by Mr.

Silva, who was driving a 2008 Chevrolet Express van owned by his employer,

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Rob’s HVAC at the intersection of Ursuline and Decatur Streets in the French

Quarter. As a result of the accident, Ms. Duran sustained several injuries, including

a broken shoulder and two tears to her rotator cuff tendon.

On May 23, 2016, Ms. Duran filed a personal injury lawsuit against Mr.

Silva, State Farm Mutual Automobile Insurance Company, and Rob’s HVAC. A

bench trial commenced on April 17, 2019, during which three witnesses testified:

Ms. Duran, Mr. Silva, and New Orleans Police Department Officer Andrew

Harrelson (“Officer Harrelson”), the investigating officer. The deposition of Ms.

Duran’s expert accident reconstructionist, Woodrow Poplin (“Mr. Poplin”), was

also introduced into evidence at trial.

Ms. Duran’s Testimony

Ms. Duran testified that she normally traveled through the French Quarter

from North Peters Street to Barracks Street and then down Decatur Street to get to

work. Ms. Duran stated there was construction on Barracks Street on the day of the

accident, which prompted her to take an alternate route and required her to turn

from Barracks Street and travel down French Market Place, which comes to a dead

end at Ursuline Street. Ms. Duran testified that she was traveling the wrong way on

Ursuline Street, a one-way street, before making a left turn on Decatur Street. She

testified that she traveled about “five or six seconds” on the left side of Decatur

Street when she was struck from behind by Mr. Silva’s van. Ms. Duran testified

she sustained injuries when Mr. Silva’s van struck her right shoulder and right

handlebar, which caused her to drag along the side of the van for a short distance

before she fell to the ground. She testified she did not see Mr. Silva’s van prior to

the collision.

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Mr. Silva’s Testimony

Mr. Silva testified that he was driving the 2008 Chevrolet Express van on

the day of the accident. He testified he was on his way to his place of employment

at Rob’s HVAC, located in Harvey, Louisiana, traveling from his home located in

Chalmette, Louisiana. Mr. Silva explained that his route to work requires him to

travel through the French Quarter on Decatur Street. On the day of the accident,

Mr. Silva testified that he was traveling about twenty-five miles per hour on

Decatur Street, a one-way street. Mr. Silva recounted that, as he passed the

intersection of Ursuline and Decatur Streets, he heard something hit his car that

sounded like a “thump.” Mr. Silva explained that Ursuline Street is also a one-way

street that intersects Decatur Street, and traffic on Ursuline Street travels from the

right across Decatur Street. Mr. Silva testified that he heard this “thump” as he

passed the light pole “with the one-way sign on it” that sits on the corner of

Ursuline and Decatur Streets. He explained that, when he looked out his rearview

mirror, he observed Ms. Duran on the ground “approximately five feet in front of

that pole, give or take,” closer to the corner of the intersection. He testified that he

stopped the van, parked, and got out to check on Ms. Duran. Mr. Silva testified

that, prior to the collision, he did not see Ms. Duran as she was not traveling on

Decatur Street as he approached the intersection of Ursuline Street, nor was she

traveling ahead of him on Decatur Street at any time prior to the accident.

Officer Harrelson’s Testimony

Officer Harrelson investigated the accident. Officer Harrelson testified that

he spoke to Ms. Duran and Mr. Silva at the accident scene, but was unable to

observe Ms. Duran’s bicycle as it had been removed from the accident scene prior

to his arrival. He testified that he was wearing a body camera that captured footage

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of his investigation at the accident scene. Officer Harrelson recounted the

statement Ms. Duran provided at the accident scene. He testified that Ms. Duran

told him she was riding on Ursuline Street and turned left onto Decatur Street. He

testified that Ms. Duran admitted she was riding the wrong way on Ursuline Street.

Officer Harrelson testified that he did not know for how long Ms. Duran was

traveling on Decatur Street prior to the accident or the exact location of the

accident. However, Officer Harrelson testified that he asked a paramedic where he

believed the accident happened, and the paramedic pointed, “through the walls of

the ambulance,” to the general area where the crash happened, which was the

intersection of Ursuline and Decatur Streets.

Officer Harrelson also spoke with Mr. Silva at the accident scene. Mr. Silva

told Officer Harrelson he was traveling down Decatur Street when he heard

something hit his car. Officer Harrelson testified that he observed a black mark

going down the side of Mr. Silva’s van. He further testified that, even though he

was unable to observe Ms. Duran’s bicycle, the evidence suggested that the black

mark was caused by Ms. Duran’s handlebar based on his observation of the black

mark and the statements provided to him by Mr. Silva and Ms. Duran.

Officer Harrelson further testified that traffic traveling on Decatur Street has

the right-of-way at the intersection of Ursuline and Decatur Streets. Officer

Harrelson also explained that a building is located at the intersection of Ursuline

and Decatur Streets that would make it difficult for someone traveling on Decatur

Street to see a bicyclist traveling the wrong way down Ursuline Street. Based on

his investigation, Officer Harrelson concluded the accident occurred at the

intersection of Ursuline and Decatur Streets and that Ms. Duran was riding her

bicycle the wrong way on Ursuline Street. Therefore, Officer Harrelson determined

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that the accident was Ms. Duran’s fault. Officer Harrelson described the accident

as a “sideswipe” accident and cited Ms. Duran for traveling on the wrong side of

the road on a one-way street, a violation of La. R.S. 32:194.1

Mr. Poplin’s Testimony

Mr. Poplin, Ms. Duran’s expert accident reconstructionist, testified by

deposition that the accident could not have occurred at the intersection of Ursuline

and Decatur Streets. Mr. Poplin explained that his opinion of the accident was

based upon his review of the following: photographs of the accident scene;

photographs of Mr. Silva’s van; a photograph of Ms. Duran’s bicycle; Officer

Harrison’s body camera footage; depositions of Ms. Duran, Mr. Silva, and Officer

Harrelson; Google Earth satellite images of the accident scene; and Officer

Harrelson’s crash report.

Mr. Poplin testified that the physical evidence, including the black mark on

Mr. Silva’s car, revealed that Ms. Duran was traveling on Decatur Street, rather

than turning onto Decatur Street from Ursuline Street when the accident occurred.

Mr. Poplin explained that “in a sideswipe-type collision” the right handlebar is

“pushed forward,” causing the front wheel of the bicycle to rotate to the left,

which, in turn, would “pitch the bicycle” or cause it to rotate in a downward

direction to the right based on the momentum of the rider. As such, Mr. Poplin

opined that the “downward mark” found on Mr. Silva’s van indicated that Ms.

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La. R.S. 32:194 provides:

Every person riding a bicycle upon a highway of this state shall be
granted all of the rights and shall be subject to all the duties
applicable to the driver of a vehicle by this Chapter, except as to
special regulations in this Part, including special regulations
applying to peace officers utilizing bicycles in furtherance of their
official duties, and except as to those provisions of this Chapter
which by their very nature can have no application.

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Duran’s turn was complete and the two vehicles made parallel contact. Mr. Poplin

conclusively found this accident to be a “sideswipe/rear-end collision.” Thus, he

opined that Mr. Silva should have had an opportunity to see Ms. Duran, prior to the

collision, if he was looking forward and was alert while driving.

In addition to the testimony presented at trial, screenshots from Officer

Harrelson’s body camera footage of the accident scene, photographs of Mr. Silva’s

van, and a photograph of Ms. Duran’s bicycle were introduced into evidence. The

video from Officer Harrelson’s body camera was also introduced by Appellees

which captured Officer Harrelson’s investigation of the accident scene.

At the close of the trial, the trial court took the matter under advisement to

review Mr. Poplin’s deposition. On May 1, 2019, the trial court rendered judgment

in favor of Appellees and dismissed Ms. Duran’s lawsuit with prejudice. Ms.

Duran timely appeals.

STANDARD OF REVIEW

“Appellate courts review findings of fact made by the trial court judge using

the manifestly erroneous or clearly wrong standard of review.” Keller v. Monteleon

Hotel, 2009-1327, p. 2 (La. App. 4 Cir. 6/23/10), 43 So.3d 1041, 1043 (citing

Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989)). “[W]here there is conflict in the

testimony, reasonable evaluations of credibility and reasonable inferences of fact

should not be disturbed upon review, even though the appellate court may feel that

its own evaluations and inferences are as reasonable.” Id. (internal citation

omitted). “Where there are two permissible views of the evidence, the factfinder's

choice between them cannot be manifestly erroneous or clearly wrong.” Id.

In order for an appellate court to reverse a trial court’s finding of fact, an

appellate court is required “to find that the findings are not supported by a

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reasonable factual basis and that the record demonstrates that the findings are

clearly wrong.” Id. (citing Stobart v. State through Dep't of Transp. and Dev., 617

So.2d 880, 882 (La. 1993)). Ultimately, the appellate court must determine

whether the “factfinder's conclusion was a reasonable one.” Id., 2009-1327, p. 2,

43 So.3d at 1042-43.

DISCUSSION

On appeal, Ms. Duran raises the following six assignments of error: (1) the

trial court erred in assessing 100% of fault to her for the accident; (2) the trial court

erred in determining the accident occurred at the intersection of Ursuline Street and

Decatur Street; (3) the trial court erred in finding Mr. Silva was not liable for the

accident; (4) the trial court erred in failing to consider the weight of the physical

evidence demonstrating that Ms. Duran was “sideswiped” by Mr. Silva; (5) the

trial court erred in failing to consider the expert testimony of Mr. Poplin; and (6)

the trial court erred in failing to award Ms. Duran damages.

For discussion purposes, we have consolidated these assignments of error

into three issues. The issues are as follows: (1) whether the trial court erred in

finding Ms. Duran solely at fault for the accident; (2) whether the trial court

properly considered the testimony of Ms. Duran’s expert accident

reconstructionist, Mr. Poplin; and (3) whether the trial court erred in failing to

award Ms. Duran damages.

Allocation of Fault

Ms. Duran argues the trial court erred in finding her solely at fault for the

accident. To support her argument, Ms. Duran contends the trial court erred in

determining the accident occurred at the intersection of Ursuline and Decatur

Streets, finding Mr. Silva was not at fault, and failing to consider the weight of the

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evidence presented at trial, which she asserts demonstrates that she was

“sideswiped” by Mr. Silva’s van.

“Allocations of fault are factual determinations, which are not to be

disturbed by appellate courts in absence of manifest error or unless a particular

finding of fact was “‘clearly wrong.’” Antippas v. Nola Hotel Group, LLC, 2017-

0798, p. 4 (La. App. 4 Cir. 2/27/19), 265 So.3d 1212, 1216 (citing Aetna Life and

Casualty Company v. Solloway, 25,462 (La. App. 2 Cir. 1/19/94), 630 So.2d 1352,

1356). “Allocation of fault is not an exact science, or the search for one precise

ratio, but rather an acceptable range. Allocations of fault within such a range

cannot be clearly wrong.” Id. (citing Foley v. Entergy Louisiana, Inc., 2006-0983,

p. 32 (La. 11/29/06), 946 So.2d 144, 166).

Here, the trial court heard live testimony from Ms. Duran, Mr. Silva, and

Officer Harrelson, the investigating officer, regarding the events surrounding the

accident. Ms. Duran testified that she was traveling the wrong way on Ursuline

Street before yielding to make a left turn onto Decatur Street. She testified that she

was traveling on the left side of the street for approximately “five or six seconds”

before she was “sideswiped” by Mr. Silva’s van. Ms. Duran admitted that she did

not see Mr. Silva as she turned onto Decatur Street.

Mr. Silva testified that he was traveling about twenty-five miles per hour

down Decatur Street. He stated that, as he passed through the intersection of

Ursuline and Decatur Streets, he heard a “thump” when Ms. Duran hit his van. He

testified that he heard this noise at the corner of Ursuline and Decatur Streets

before the one-way sign and the light pole that sits on the corner of Ursuline and

Decatur Streets. Mr. Silva testified that he did not see Ms. Duran at any time prior

to the accident.

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Officer Harrelson testified the accident occurred at the intersection of

Ursuline and Decatur Streets based on the location of the ambulance, explaining

that an ambulance generally parks near where a victim is found. Officer Harrelson

also testified that he determined the accident occurred at the intersection of

Ursuline and Decatur Streets based upon his interviews of Mr. Silva and Ms.

Duran at the accident scene. Officer Harrelson testified that a motorist traveling

down Decatur Street would have an obstructed view of a bicyclist that was

traveling the wrong way on Ursuline Street because of a building located at the

intersection of Ursuline and Decatur Streets that protrudes into the intersection. He

testified that, after speaking with both Mr. Silva and Ms. Duran, he concluded the

accident was Ms. Duran’s fault because she was traveling the wrong way on a one-

way street, on the wrong side of the road before crossing the intersection and

hitting Mr. Silva. Accordingly, he cited Ms. Duran for violation of La. R.S. 32:194.

He testified that Mr. Silva had the right-of-way on Decatur Street.

In Louisiana, it is well-settled that bicyclists have a statutory duty to comply

with traffic laws applicable to drivers of motor vehicles. La. R.S. 32:194.

“Bicyclists are also subject to the same duties applicable to drivers of motor

vehicles, including the duty to keep a proper lookout at all times.” Antippas, 2017-

0798, p. 4, 265 So.3d at 1217 (citing La. R.S. 32:194). Moreover, “[e]very person

operating a bicycle upon a roadway shall ride as near to the right side of the

roadway as practicable, exercising due care when passing a standing vehicle or one

proceeding in the same direction...” La. R.S. 32:197(A). Additionally, “[w]hen two

vehicles approach or enter an intersection from different highways at

approximately the same time, the driver of the vehicle on the left, shall yield the

right of way to the vehicle on the right.” La. R.S. 32:121(A).

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Ms. Duran’s testimony established four critical facts: (1) she admitted that

she was traveling the wrong way down Ursuline Street; (2) she failed to keep a

proper lookout as she turned left onto Decatur Street, as she admitted that she did

not see Mr. Silva; (3) she failed to properly yield before turning onto Decatur

Street; and (4) she was traveling on the wrong side of Decatur Street, in violation

of La. R.S. 32:197(A). Ms. Duran argues that her expert, Mr. Poplin, opined that

Ms. Duran was “sideswiped” or “rear-ended” based on the physical evidence he

reviewed in this matter. However, Mr. Poplin’s testimony conflicts with Mr.

Silva’s testimony, Officer Harrelson’s testimony, and the physical evidence

presented at trial. The screenshots from Officer Harrelson’s body camera footage

showed the accident occurred at the intersection of Ursuline and Decatur Streets.

Mr. Silva’s and Officer Harrelson’s testimony corroborated that the accident

occurred at the intersection of Ursuline and Decatur Streets.

Further, the trial court determined that Mr. Silva’s account of the accident

was “more credible.” In making this determination, the trial court found that Ms.

Duran provided inconsistent accounts of the accident to her medical providers.

“The trial court’s credibility determinations must be given great deference 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 of what is said.”

Frost v. Carter, 2013-0375, pp. 12-13 (La. App. 4 Cir. 4/2/14), 140 So.3d 59, 67

(citing Billiot v. Billiot, 2001-1298, pp. 5-6 (La. 1/25/02), 805 So.2d 1170, 1174).

Ms. Duran and Mr. Silva gave conflicting accounts of the accident. As such,

the trial court had to make credibility determinations regarding their testimony. At

trial, Ms. Duran testified that she was established on Decatur Street when she was

“sideswiped” by Mr. Silva’s van, which hit her handlebar and caused her to fall

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over to the ground. The record reflects that Mr. Silva gave a statement to Officer

Harrelson that he was traveling down Decatur Street when he heard something hit

his car and that he did not see Ms. Duran. Mr. Silva’s trial testimony was

consistent with the statement he provided to Officer Harrelson. However, contrary

to Ms. Duran’s trial testimony that Mr. Silva’s van hit her shoulder and handlebar

on her bicycle, the record reflects that Ms. Duran told her medical providers that

she hit her head on Mr. Silva’s rearview mirrors. At trial, Ms. Duran admitted that

she told her medical providers inconsistent statements about where her body made

contact with Mr. Silva’s van. As such, the record reflects that Mr. Silva’s account

of the accident was consistent and was corroborated by Officer Harrelson’s

testimony.

Furthermore, the physical evidence presented at trial does not definitively

prove Mr. Silva’s fault, as Ms. Duran argues. In particular, the photograph of the

black mark on Mr. Silva’s van, which Ms. Duran argues proves she was

“sideswiped,” was not sufficient evidence to negate Ms. Duran’s fault for the

accident. The record reflects there was no evidence presented to definitively

attribute the black mark on the side of Mr. Silva’s van to the collision. Officer

Harrelson testified that the black mark he observed on the side of Mr. Silva’s van

suggests that it was from Ms. Duran’s handlebars. However, he admitted that he

did not observe Ms. Duran’s bicycle at the accident scene, therefore, he could not

affirmatively attribute the black mark on Mr. Silva’s van to be a result of striking

Ms. Duran on her bicycle.

Moreover, Mr. Poplin could not confirm the black mark or the scratches on

Ms. Duran’s bicycle was a result of the accident, as he admitted he did not inspect

Ms. Duran’s bicycle at the time of the accident. Additionally, the damage to Ms.

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Duran’s bicycle was not in his report because the photograph of her bicycle was

not provided to him until after his report was prepared.

We find that the trial court’s finding of fault is supported by the record and

is not “clearly wrong.” Antippas, 2017-0798, p. 4, 265 So.3d at 1216. Thus, we

conclude that the trial court was not manifestly erroneous in finding Ms. Duran

solely at fault for the accident.

Mr. Poplin’s Expert Testimony

Next, Ms. Duran argues the trial court erred in failing to consider the

testimony of her expert accident reconstructionist, Mr. Poplin, which Ms. Duran

contends demonstrates that Mr. Silva was liable for the accident and should have

had a percentage of fault allocated to him by the trial court.

“The great discretion and deference granted to the fact-finder on appellate

review extends to its assessment of expert testimony.” McKenzie v. Cuccia, 2004-

0112, p. 6 (La. App. 4 Cir. 6/23/04), 879 So.2d 335, 339 (citing Sistler v. Liberty

Mutual Ins. Co., 558 So.2d 1106 (La. 1990)). “The weight given expert testimony

is dependent upon the expert’s professional qualifications and experience, and the

facts upon which the opinion is based.” Tuft v. Tuft, 51,293 (La. App. 2 Cir.

1/18/17) (unpub.), 2017 WL 4341309, *6. “After weighing and evaluating expert

and lay testimony, the trial court may accept or reject the opinion expressed by any

expert.” Id.

In the case sub judice, the record reflects the trial court did consider Mr.

Poplin’s testimony and took the matter under advisement, at the conclusion of trial,

to review Mr. Poplin’s deposition. Ultimately, the trial court determined that Mr.

Poplin made “assumptions” regarding where the accident occurred, and that this

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testimony directly conflicted with the documentary evidence presented at trial. We

agree.

Mr. Poplin opined this accident was a “sideswipe collision, a rear end—from

the rear.” He testified the physical evidence exhibiting the black mark on Mr.

Silva’s van revealed that Ms. Duran was traveling parallel to Decatur Street as

opposed to turning onto Decatur Street when then the collision occurred. Mr.

Poplin explained that, if Ms. Duran was in the “midst of a turn” at the time of the

collision, the bicycle’s front wheel would have made contact with Mr. Silva’s van,

which would have created a lower mark on the van. However, due to the placement

of black mark on Mr. Silva’s van and the damage on Ms. Duran’s right handlebar

of her bicycle, he opined that the turn was complete and the two vehicles made

contact parallel to one another.

Contrary to Ms. Duran’s contention that Mr. Poplin’s testimony was not

properly considered by the trial court, the record reflects the trial court did not err

in concluding Mr. Poplin’s testimony was based on “assumptions.” In his

deposition, Mr. Poplin admitted that he did not go to the accident scene, talk to

either Ms. Duran or Mr. Silva, or personally inspect Ms. Duran’s bicycle.

Furthermore, he stated that his opinion was based upon his review of satellite

images of the area from Google Earth, photographs of the accident scene and the

vehicles, and review of the depositions of Mr. Silva and Ms. Duran.

Notably, Officer Harrelson, who was at the scene, saw Mr. Silva’s van, and

interviewed both Ms. Duran and Mr. Silva, concluded that the accident was a

“sideswipe” accident, and that the accident was Ms. Duran’s fault. Thus, we do

not find the trial court abused its discretion in determining that Mr. Poplin made

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“assumptions” regarding where and how the accident occurred. Accordingly, we

find this assignment of error lacks merit.

Damages

Lastly, Ms. Duran argues that the trial court erred in failing to award her

damages. Louisiana jurisprudence establishes that the trial court must determine

fault prior to making an award for damages. See Watson v. State Farm Fire &

Casualty Insurance Co., 469 So.2d 967 (La. 1985); Spears v. City of Scott, 2005-

230 (La. App. 3 Cir. 11/2/05), 915 So.2d 983, writ denied, 2005-2478 (La.

3/31/06), 925 So.2d 1259. The trial court evaluated the physical evidence and

testimony presented at trial and determined that Ms. Duran violated Louisiana

statutory traffic regulations. Accordingly, the trial court found Ms. Duran solely

liable for the accident. Ms. Duran is therefore not entitled to a damage award

because no fault was allocated to Mr. Silva. We find this assignment of error lacks

merit.

DECREE

For the following reasons, we affirm the trial court’s May 1, 2019 judgment

dismissing Ms. Duran’s lawsuit with prejudice.

AFFIRMED

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