Cynthia Smith Versus Charles Murret, and National General Insurance Company

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.

21-CA-662 1

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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GRETNA, LOUISIANA 70054 (504) 376-1400

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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
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
HONORABLE PAUL A. BONIN MICHAEL J. BEGOUN (APPELLANT) PETER M. DONOVAN (APPELLEE)
(DISTRICT JUDGE) NANCY S. SILBERT (APPELLANT) ATTORNEY AT LAW
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