Cynthia Gray v. Andrea Barr-Ambler, Clinical Pathology Labs, Inc., Safety National Casualty and State Farm Insurance Company

Judgment rendered January 12, 2022.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,183-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

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CYNTHIA GRAY Plaintiff-Appellant

versus

ANDREA BARR-AMBLER, CLINICAL Defendants-Appellees
PATHOLOGY LABS, INC., SAFETY
NATIONAL CASUALTY AND STATE
FARM MUTUAL INSURANCE COMPANY

*****

Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Webster, Louisiana
Trial Court No. 77,843

Honorable Robert Lane Pittard, Judge

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SMITH & NWOKORIE, LLC Counsel for Appellant
By: Brian G. Smith

CASTEN & PEARCE, APLC Counsel for Appellee,
By: Marshall R. Pearce State Farm Mutual
Insurance Company

*****

Before PITMAN, COX, and THOMPSON, JJ.

COX, J.

This case arises out of the Twenty-Sixth Judicial District Court,

Webster Parish, Louisiana. Plaintiff, Cynthia Gray (“Gray”), appeals a

judgment granting an involuntary dismissal in favor of Defendant, State

Farm Insurance Company (“State Farm”), relating to an automobile

collision. For the foregoing reasons, we affirm the trial court’s judgment.

FACTS

On February 28, 2019, Gray, while operating her 2009 Honda

Sonata,1 drove southbound on Homer Road in Minden, Louisiana. As Gray

attempted to make a left-hand turn into a parking lot, she was struck from

behind by Andrea Barr-Ambler (“Barr-Ambler”), who was operating a 2017

Nissan Versa, owned by Clinical Pathology Labs, Inc., and insured by Safety

National Casualty Corporation. Following the accident, Gray submitted a

claim to her insurer, State Farm, for damages sustained to the vehicle as a

result of the accident. State Farm subsequently towed the 2009 Honda

Sonata to Jim Taylor’s Auto Repair Shop (“Jim Taylor’s”), provided Gray

with a temporary rental vehicle while her vehicle was being repaired, and

paid, in full, all repairs performed on the vehicle.

On April 29, 2019, Gray filed a petition for damages and a claim for

bad faith against Barr-Ambler, Clinical Pathology Labs, Inc., Safety

National Casualty Corporation, and State Farm. On November 19, 2019,

Gray dismissed all claims against Barr-Ambler, Clinical Pathology Labs,

Inc., and Safety National Casualty Corporation. Trial commenced on

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Although in both the brief and record, Gray’s vehicle is referred to as a “Honda
Sonata,” we note that the vehicle is likely a Hyundai Sonata as Sonata’s are not produced
and manufactured by Honda.

February 3, 2021, against State Farm. The trial court first noted, as a general

matter, that counsel for Gray failed to provide the court with a bench book or

pretrial memorandum and that no exhibit or witness list was filed with the

court as requested. Counsel for Gray clarified that during a phone

conference between the parties and the trial court, it was stipulated that the

matter would be continued under the condition that no additional witnesses

or exhibits would be added from the date of the phone conference until trial

commenced. Counsel explained that he intended for Gray to be the sole

witness to testify at trial and that no written evidence would be introduced.

Specifically, counsel stated:

. . . one of the things the [c]ourt, that we agreed with the [c]ourt
is, is that Mr. Kitchens will not deny or object to the
continuance of this. So[,] nothing else was added. And he
indicated in the conference that we had evidence submitted and
the only party that was going to be here, that the [c]ourt knew it
was my client. And that was one of the conditions that he would
continue this matter.

Gray was the only witness to testify at trial. She stated that on or

about February 28, 2019, she was rear-ended by another vehicle when she

attempted to make a left-hand turn. As a result of the accident, Gray stated

that she sustained damage to her 2009 Honda Sonata and that she had to file

a claim with State Farm. Gray testified that State Farm informed her that the

car would be towed to their selected auto repair shop, Jim Taylor’s. Gray

stated that her vehicle remained there for approximately three months, but

was never informed why the repairs took that long.

Gray stated that when she retrieved her vehicle from Jim Taylor’s, she

noted that the body of the vehicle was repaired. However, when she drove

home, she noticed that the car had a “real bad noise,” jerked, and “shut out”

as she drove. She testified that she notified both State Farm and Jim
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Taylor’s about the issue, but was never contacted about the problem from

either party after she notified them. Since the car first “shut out,” Gray

stated that she has been afraid to drive the vehicle out of fear that it would

stop again while she drove. As a result, Gray stated that she has had to

borrow either her daughter’s or son-in-law’s vehicle in order to pick up her

medication or run errands.

At the close of Gray’s testimony, counsel for State Farm moved for

involuntary dismissal under La. C.C.P. art. 1672(B), on the grounds that

Gray failed to present sufficient evidence to support her claims for loss of

use and bad faith against State Farm. The trial court subsequently granted

the motion and dismissed Gray’s claims. This appeal followed.

DISCUSSION

In her sole assignment of error, Gray asserts that the trial court,

although vested with great discretion in deciding whether to grant a motion

for involuntary dismissal, nevertheless erred in doing so. Specifically, Gray

argues that State Farm acted in bad faith in failing to fully repair her vehicle

after the accident because it was made aware of the continued mechanical

failures. Gray argues that although State Farm towed the vehicle and had

the body of the vehicle repaired, it failed to repair the internal mechanical

problems the vehicle sustained as a direct result of the accident. As her

insurer, Gray asserts that State Farm is liable to her for the loss of use of her

vehicle and any damages associated with the accident as a result of its failure

to ensure that the vehicle was fully restored.

In contrast, State Farm asserts that because Gray failed to introduce

sufficient evidence to establish a claim for loss of use and bad faith, the

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court was correct in granting the motion for involuntary dismissal.2 State

Farm contends that it properly discharged its duties as Gray’s insurer,

highlighting that, after the accident it: 1) paid to have the vehicle towed for

repairs; 2) provided Gray with a temporary rental vehicle while the 2009

Honda Sonata underwent repairs; and 3) paid the cost of repairs. With

respect to Gray’s claims for loss of use and bad faith, State Farm argues that

she failed to introduce any evidence outside of her own testimony to support

her claims. Therefore, State Farm argues that because Gray cannot show

that it acted in bad faith or that it is responsible for her loss of use of the

vehicle, the motion should be affirmed. We agree.

The motion for involuntary dismissal is defined by La. C.C.P. art.

1672(B), which provides:

In an action tried by the court without a jury, after the plaintiff
has completed the presentation of his evidence, any party,
without waiving his right to offer evidence in the event the
motion is not granted, may move for a dismissal of the action as
to him on the ground that upon the facts and law, the plaintiff
has shown no right to relief. The court may then determine the
facts and render judgment against the plaintiff and in favor of
the moving party or may decline to render any judgment until
the close of all the evidence.

A motion for involuntary dismissal requires the trial court to evaluate all the

evidence presented by the plaintiff and render a decision based on a

preponderance of the evidence. Town of Arcadia v. Arcadia Chamber of

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Although not raised on appeal, and acknowledging that the matter would
be premature, State Farm further argues, in the interest of thoroughness, that Gray
would not have a claim for bad faith against it under either La. R.S. 22:1973 or
La. R.S. 22:1982. In brief, State Farm asserts that under either statute, Gray
would not be able to establish a claim for bad faith primarily because she failed to
set forth satisfactory proof of loss. Specifically, Gray failed to introduce any
evidence showing that State Farm was arbitrary, capricious, and lacked probable
cause, such as a handwritten estimate for repairs, or an invoice. The only
evidence introduced was Gray’s testimony that the car sustained issues after it
was repaired, which does not sufficiently establish proof of loss or bad faith.
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Commerce, 50,564 (La. App. 2 Cir. 4/13/16), 195 So. 3d 23; Taylor v.

Tommie’s Gaming, 04-2254 (La. 5/24/05), 902 So. 2d 380; Coordinating &

Dev. Corp. v. D.H. Patten Children Co., 47,000 (La. App. 2 Cir. 2/29/12),

87 So. 3d 214.

Proof by a preponderance means that the evidence, taken as a whole,

shows that the fact or cause sought to be proved is more probable than not.

Hebert v. Rapides Parish Police Jury, 06-2001 (La. 4/11/07), 974 So. 2d

635; Bartley v. Fondren, 43,779 (La. App. 2 Cir. 12/3/08), 999 So. 2d 146.

The plaintiff opposing a motion for involuntary dismissal is entitled to

no special inferences in his favor. Crowell v. City of Alexandria, 558 So. 2d

216 (La. 1990); Coordinating & Dev. Corp., supra. The appellate court will

not reverse an involuntary dismissal in the absence of manifest or legal error.

Roberson v. Chance, 50,169 (La. App. 2 Cir. 11/18/15), 182 So. 3d 203, writ

denied, 16-0153 (La. 4/4/16), 190 So. 3d 1208.

After a thorough review of the record, we find that the trial court was

not manifestly erroneous in granting the motion for involuntary dismissal.

In order to satisfy her burden of proof, Gray was required to establish that

State Farm acted in bad faith with respect to the loss of use of her vehicle

and failure to respond to her claims in regard to the sustained damage of the

vehicle after repairs. At the outset of trial, Gray’s counsel provided that the

only evidence he intended to submit was Gray’s testimony. During trial,

Gray only testified about the mechanical difficulties she experienced with

the vehicle after it was repaired and that, through an agent, she informed

State Farm about the continued problems.

We note that in establishing her claims, Gray failed to introduce any

other witnesses, expert or otherwise, to testify about the condition of the
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vehicle before and after the accident occurred. Moreover, she offered no

other documentary evidence to establish a connection between the accident

itself and the resulting damages or evidence establishing that State Farm

knew or was aware of the vehicle’s internal mechanical failures, including,

but not limited to: invoices, estimates, accident reports, records of the work

performed, or a copy of the insurance claim filed with State Farm after the

issue was reported. Nevertheless, the trial court had the benefit of hearing

the evidence presented at trial and considered Gray’s testimony before it

made its final ruling.

Given the limited testimony and evidence presented at trial, we find

that the trial court had the benefit of hearing all of the evidence and that it

acted within its discretion in granting the motion for involuntary dismissal.

CONCLUSION

For the reasons expressed, the trial court’s judgment is affirmed.

Costs associated with this appeal are assessed to the Appellant.

AFFIRMED.

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