Carolyn C. Tregre v. Brenda S. Fletcher, State Farm Automobile Company, Kendall L. McGee and Allstate Insurance Company

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2020 CA 0859

CAROLYN C. TREGRE

VERSUS

BRENDA S. FLETCHER, STATE FARM AUTOMOBILE
INSURANCE COMPANY, KENDALL L. MCGEE AND ALLSTATE
INSURANCE COMPANY

Judgment Rendered: FEB 1 9 2021

On Appeal from the
22nd Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Trial Court No. 2017- 11350

Honorable Richard A. Swartz, Judge Presiding

Delbert G. Talley Attorney for Plaintiff A
- ppellee,
Covington, LA Keith Tregre, son of Carolyn C.
Tregre, deceased

Ryan G. Davis Attorneys for Defendant -Appellant,

Molly Manieri Louisiana Farm Bureau Casualty
Mandeville, LA Insurance Company

Jude H. Trahant Attorney for Defendant -Appellee,
Madisonville, LA Allstate Insurance Company

BEFORE: THERIOT, WOLFE, AND HESTER, JJ.

W,

HESTER, J.

In this case arising out of a three -car accident, plaintiff's

uninsured/ underinsured motorist ( UM) carrier appealed the judgment of the trial

court finding one defendant driver was the sole proximate cause of the accident

thereby triggering UM coverage under plaintiff' s automobile insurance policy. For

the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On July 20, 2016, Carolyn Tregre was driving eastbound on C. M. Fagan Drive

in Hammond, Louisiana, when she was involved in a three -car rear -end collision.

At the time of the accident, Ms. Tregre was driving the lead vehicle, Kendall McGee

was driving the middle vehicle, and Brenda Fletcher was driving the last vehicle.

Ms. Tregre filed a petition for damages naming as defendants Mr. McGee and his

insurance company, Allstate Insurance Company (" Allstate"); and Ms. Fletcher and

her insurance company, State Farm Automobile Insurance Company (" State Farm")

While the suit was pending, Ms. Tregre passed away and Ms. Tregre' s son, Keith

Tregre, was substituted as plaintiff pursuant to La. Civil Code art. 2315. 1.

On March 14, 2018, Mr. Tregre filed an amended petition adding Louisiana

Farm Bureau Casualty Insurance Company (" Farm Bureau"), Ms. Tregre' s UM

carrier, as a defendant, alleging that Ms. Tregre' s damages exceeded the cumulative

insurance coverage of Mr. McGee and Ms. Fletcher. Prior to trial, Mr. Tregre settled

with State Farm for the limits of Ms. Fletcher' s policy. Thereafter, a judgment was

signed dismissing Mr. Tregre' s claims against Ms. Fletcher and State Farm.

On January 22, 2020, the matter came before the court for a bench trial. After

taking the matter under advisement, the trial court issued written reasons for

judgment finding Ms. Fletcher' s negligence was the sole proximate cause of the

accident. On May 14, 2020, the trial court signed a judgment in favor of Mr. Tregre

and against Farm Bureau in the sum of twenty- one thousand five hundred ninety -

FA

one dollars and sixteen cents ($ 21, 591. 16), subject to a credit for fifteen thousand

dollars ($ 15, 000. 00) paid in settlement by State Farm, and dismissing all claims

against Allstate and Mr. McGee. It is from this judgment that Farm Bureau appeals,

raising as its sole assignment of error, the apportionment of fault by the trial court.

Specifically, Farm Bureau contends that the trial court committed error in

disregarding the testimony of a disinterested witness, the investigating officer, in

favor of the testimony of the defendant driver.

LAW AND ANALYSIS

When reviewing factual findings made by the trier of fact, including the

allocation of fault, this court is required to apply the manifest error standard of

review. See Stobart v. State, Department of Transportation and Development,

617 So. 2d 880, 882 ( La. 1993). Under the manifest error standard, which demands

that great deference be given to the trial court' s factual findings, the issue to be

resolved on appeal is not whether the trial court was right or wrong, but whether its

conclusions are reasonable. Adams v. Rhodia, Inc., 2007- 2110 ( La. 5/ 21/ 08), 983

So. 2d 798, 806. If the factual findings are reasonable in light of the record reviewed

in its entirety, a reviewing court may not reverse even though convinced that, had it

been sitting as the trier of fact, it would have weighed the evidence differently.

Adams, 983 So.2d at 806 ( citing Stobart, 617 So. 2d at 882- 83).

This is especially true when the trial court' s factual findings are based on

witness credibility, 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. 1st Cir. 12/ 22/ 16),

209 So. 3d 844, 847. Thus, a factfinder' s conclusions, based on its decision to credit

the testimony of one of two or more witnesses, can virtually never be manifestly

erroneous. Adams, 983 So. 2d at 807. Where there are two permissible views of the

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evidence, the factfinder' s choice between them cannot be manifestly erroneous.

Jones v. Bravata, 2018- 0837 ( La. App. 1st Cir. 5/ 9/ 19), 280 So. 3d 226, 233.

Trooper Jesse Sanders,' who investigated the July 20, 2016 accident, testified

at trial, and his " Uniform Motor Vehicle Crash Report" was introduced into

evidence. His report2 stated the following:

Upon arrival officers made contact with the driver of vehicle number
one who stated that her and the passenger of vehicle one were traveling
eastbound on C. M. Fagan Drive. Vehicle number one was traveling
behind vehicle number two when vehicle number two hit his brakes.
Vehicle number one then struck the rear of vehicle number two.

The driver of vehicle number two stated that he was traveling eastbound
on C. M. Fagan Drive. Vehicle number two was traveling behind
vehicle number three when the driver of vehicle number three hit her
brakes. Vehicle number two then struck the rear of vehicle number

three, and was also struck in the rear by vehicle number one.

The driver of vehicle number three stated that she was traveling
eastbound on C. M. Fagan Drive. Vehicle number three hit her brakes
to slow down, and was then struck in the rear by vehicle number two,
and was also moved forward slightly from vehicle number one hitting
vehicle number two.

While Trooper Sanders testified that he had no recollection of investigating

the accident, he said that protocol was to talk to all parties involved. Trooper Sanders

was asked about statements made by Ms. Fletcher and Mr. McGee during their

depositions saying that they never discussed the accident with the investigating

officer. Trooper Sanders said, " I had to have discussed the accident with them."

Trooper Sanders also stated, " every accident that I' ve ever responded to I' ve talked

to every driver involved." Based on review of his report, Trooper Sanders concluded

that the accident involved two impacts to Ms. Tregre' s vehicle, the first caused by

1 Trooper Sanders is now employed by Louisiana State Police. He was employed by the Hammond
Police Department at the time of the accident.

2 In Trooper Sanders' report, vehicle number one is Ms. Fletcher, vehicle number two is Mr.
McGee, and vehicle number three is Ms. Tregre.

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Mr. McGee' s vehicle hitting the back of Ms. Tregre' s vehicle and the second caused

by Ms. Fletcher' s vehicle hitting the back of Mr. McGee' s vehicle.

Mr. Tregre, who was in the vehicle with his mother at the time of the accident,

testified that there were two impacts, one directly after the other, and that the first

impact was more severe. He said he immediately left the scene of the accident

because he was not feeling well. He agreed that he was not there when the

investigating police officer arrived and did not see the officer speaking with the other

drivers. Mr. Tregre acknowledged that he did not see the accident happen because

he was facing forward. He testified that he was not sure if Ms. Fletcher hit Mr.

McGee first. Mr. Tregre said that he brought his mother to her deposition, and at

that time, she was really sick, in hospice care, and " forgot some things." He

acknowledged that Ms. Tregre' s deposition was taken close to when she passed

away.

Mr. McGee, the driver of the second vehicle involved in the accident, testified

that " Ms. Fletcher, the vehicle behind me, hit my vehicle and caused me to hit Ms.

Tregre' s vehicle." Mr. McGee said he did not strike Ms. Tregre' s vehicle prior to

Ms. Fletcher striking his vehicle. Mr. McGee testified that the investigating police

officer spoke to Ms. Tregre for at least five minutes, but he never asked him for a

statement and never spoke to Ms. Fletcher. Mr. McGee said Ms. Fletcher apologized

to him after the accident and told him that she was not paying attention and was

talking to a person in her vehicle.

Ms. Tregre and Ms. Fletcher' s depositions were offered into evidence during

the trial. In her deposition, Ms. Tregre said that a man hit her in the back and then a

car hit him causing him to hit her a second time. She said both impacts were hard,

but the second impact was not as hard. Ms. Tregre' s deposition testimony was

inconsistent and incoherent at times. She said at one point that the crashes were five

minutes apart and that she got out in between the two impacts and then testified that

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the impacts were immediately after one another. She also testified that her son was

not in the car at the time of the accident.

In Ms. Fletcher' s deposition, she testified that at the time of the accident it

was raining, the roads were wet, and the traffic was backed up. She said that her co-

worker was in the vehicle and said something and she " looked at him; and when

she] looked back, they were stopped again. And [ she] put on brakes, but that didn' t

help." She acknowledged that she made impact with the vehicle in front of her when

she took her eyes off the road momentarily. When Ms. Fletcher was asked if the car

in front of her had already hit the vehicle in front of him prior to her truck making

impact, she replied, " I don' t know." She said she gave the investigating police

officer her license and insurance, but she did not think that he asked her what

happened, nor did she tell him what happened. She said Ms. Tregre talked to the

officer, but she did not see the officer speak with the other driver.

In written reasons for judgment, the trial court pointed out that as plaintiff,

Mr. Tregre had the burden of proving that Mr. McGee and Ms. Fletcher were at fault

in causing the accident. The trial court stated, "[ t] he Court has reviewed Mrs.

Tregre' s statement and deposition and finds her testimony inconsistent and

confusing, and further finds that Plaintiff failed to meet his burden of Proof that Mr.

McGee was at fault."

Farm Bureau contends that the trial court erred in giving more credibility to

the testimony of Mr. McGee, a defendant, than Trooper Sanders, the investigating

officer. In favor of its position, Farm Bureau cites Winfield v. Porter, 618 So. 2d

890, 893 ( La. App. 4th Cir. 1993), which provides that the testimony of a

disinterested witness, if credible, should be given greater weight by the trial court

than that of an interested witness. In Winfield, the disinterested witness was an

independent eyewitness of the accident. See Winfield, 618 So. 2d at 891- 92. Unlike

in Winfield, Trooper Sanders was not an eyewitness to the accident. His report and

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testimony during trial revealed that his determination of how the accident occurred

was based primarily on the description of the accident given to him by Ms. Tregre

and conversations he testified he must have had with Ms. Fletcher and Mr. McGee

because of protocol and how he always investigates traffic accidents. Ms. Fletcher

and Mr. McGee did not recall Trooper Sanders asking them about how the accident

happened. During trial, Trooper Sanders did not discuss any additional investigation

into the cause of the accident such as examining skid marks or evaluating the damage

to the vehicles.

While it is true that testimony of an apparently disinterested witness, if

credible, is entitled to great weight, this must be balanced against the trial court' s

essential function of evaluating the credibility of witnesses. The trial court had the

opportunity to see and hear the witnesses in this matter and was in the best position

to determine credibility of the witnesses. As noted, a trial court' s conclusions, based

on its decision to credit the testimony of one of two or more witnesses, can virtually

never be manifestly erroneous, and where there are two permissible views of the

evidence, the factfinder' s choice between them cannot be manifestly erroneous. In

this case, there are clearly two permissible views of the evidence. Either Ms.

Fletcher' s vehicle rear- ended Mr. McGee' s vehicle causing Mr. McGee to rear -end

Ms. Tregre' s vehicle or Mr. McGee' s vehicle rear-ended Ms. Tregre' s vehicle before

he was rear-ended by Ms. Fletcher. Considering the report and testimony of Officer

Sanders and the weight that both should be given as well as the testimony of the

remaining witnesses, we cannot conclude that the trial court' s decision between two

permissible views ofthe evidence, finding Ms. Fletcher was the sole proximate cause

of the accident, is manifestly erroneous. Therefore, we affirm the decision of the

trial court.

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CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. All costs

of the appeal are assessed to appellant, Louisiana Farm Bureau Casualty Insurance

Company.

AFFIRMED.