Marilyn Maricle v. Liberty Mutual Insurance Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-1149

MARILYN MARICLE, ET AL.

VERSUS

LIBERTY MUTUAL INSURANCE CO., ET AL.

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APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT,
PARISH OF ALLEN, NO. C-2000-599,
HONORABLE PATRICIA C. COLE, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Sylvia R. Cooks, Jimmie C. Peters, and J. David Painter, Judges.

AFFIRMED.

Cooks, J., dissents and assigns written reasons.

J. Craig Jones
Craig R. Hill
Jones & Hill, LLC
P. O. Box 1260
Oberlin, LA 70655
(337) 639-2127
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Marilyn Maricle
Audrey McDaniel

Eric J. Miller
Bolen, Parker & Brenner, LTD.
P. O. Box 11590
Alexandria, LA 71315-1590
(318) 445-8236
COUNSEL FOR DEFENDANTS/APPELLEES:
Donald Gene Dyer

Transwood Trucking Company
Liberty Mutual Insurance Company

PETERS, J.

This personal injury lawsuit arises from a two-vehicle accident which occurred

in Allen Parish, Louisiana, at approximately noon on November 15, 1999. In the

accident, Marilyn Maricle and her mother, Audrey McDaniel, sustained personal

injuries. Ms. Maricle and Ms. McDaniel instituted suit to recover for their injuries,

naming as defendants Donald Gene Dyer, the driver of one of the vehicles involved

in the accident; Transwood Trucking Company (Transwood Trucking), Mr. Dyer’s

employer and the owner of the vehicle he was driving at the time of the accident; and

Liberty Mutual Insurance Company (Liberty Mutual), the liability insurer of

Transwood Trucking and Mr. Dyer. A jury trial resulted in a verdict in which the jury

found that Mr. Dyer was without fault in causing the accident. Based on the jury’s

verdict, the trial court executed a judgment dismissing the plaintiffs’ claims against

all of the defendants. The plaintiffs appealed this judgment, asserting four

assignments of error. For the following reasons, while we find merit in three of the

plaintiffs’ assignments of error and those findings mandate that we conduct a de novo

review, we nevertheless reach the same conclusion as did the jury. Therefore, we

affirm the trial court judgment.

DISCUSSION OF THE RECORD

The accident giving rise to this litigation occurred on U.S. Highway 165 (Hwy

165) a short distance north of Oakdale, Louisiana. At the place where the accident

occurred, Hwy 165 is a straight and level two-lane highway running north and south.

The travel lanes are each twelve feet wide, and the paved shoulders on each side of

the highway are approximately nine feet wide. The centerline is dashed yellow line

indicating that it is not a no passing zone.

Immediately before the accident, Ms. Maricle was driving north on Hwy 165

in a 1983 Dodge sedan, which was also occupied by Ms. McDaniel and Ms. Maricle’s

three small children. At the same time, Mr. Dyer was driving Transwood Trucking’s

tractor-trailer rig (eighteen-wheeler) north on Hwy 165 and was immediately behind

two vehicles, with the lead vehicle of the two being Ms. Maricle’s vehicle.

There is little dispute concerning certain aspects of the accident. The testimony

of the witnesses and the exhibits in evidence establish that the impact between the

two vehicles occurred as Mr. Dyer attempted to pass Ms. Maricle’s vehicle at a time

when Ms. Maricle was attempting to make a left turn from Hwy 165 onto Meyers

Road. Ms. Maricle’s vehicle was struck between the driver’s door and the front

bumper by the right outside tire of the front axle of the rear tandem of the eighteen-

wheeler. The point of impact between the two vehicles was one to two feet across the

centerline of Hwy 165 in the southbound lane. The photographs in evidence clearly

show the scraping effect on the trailer tire and black marks on the fender of the

Dodge. Additionally, photographs and eyewitness testimony place debris from Ms.

Maricle’s vehicle west of the centerline of the highway. The impact of the collision

deflated the Dodge’s left front tire, and the vehicle came to rest approximately

thirteen feet from the point of impact, facing in a northwesterly direction entirely

within the southbound lane of Hwy 165. Mr. Dyer parked his eighteen-wheeler on

the shoulder of the northbound lane of Hwy 165 beyond the accident scene.

The principal facts in dispute involve the movement of the two vehicles at the

moment of the collision. Ms. Maricle, Ms. McDaniel, and Mr. Dyer gave direct

testimony regarding the particulars of the accident, as did two independent

eyewitnesses to the accident, Allen Parish Deputy Sheriff Patrick Buxton and Betty

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Chevalier. Louisiana State Police Trooper Clifton Mire, who investigated the

accident, also testified, as did two accident reconstruction experts.

Ms. Maricle testified that as she traveled north on Hwy 165, she decided to turn

left onto Meyers Road to visit a friend. According to Ms. Maricle, she activated her

turn signal approximately 100 yards from the Meyers Road intersection and reduced

her speed to five to ten miles an hour to begin her turn. She testified that when she

began the turn, she looked in her rearview mirror and saw Mr. Dyer’s eighteen-

wheeler coming around her vehicle. When she observed him, she immediately

stopped to avoid hitting him. According to Ms. Maricle, the eighteen-wheeler was

partly on the west shoulder as it passed, but as it began to return to the northbound

lane of Hwy 165, it “cut back over too quick,” resulting in the impact. She believed

that her vehicle spun a full 360 degrees before it came to a stop.

The testimony of Ms. McDaniel, who occupied the front seat of the Dodge at

the time of the accident, was of little assistance in determining the dynamics of the

accident. She remembered only that her daughter hit her brakes, and, as she looked

through the window, the eighteen-wheeler was immediately in front of her. Unlike

her daughter, she did not believe their vehicle spun after impact.

Mr. Dyer testified that he had just left Oakdale traveling north on Hwy 165 and

was traveling approximately forty-five miles per hour when he observed two slow-

moving vehicles ahead of him. As he approached the two vehicles, he observed no

brake lights or turn signals, and, after making sure Hwy 165 was clear of southbound

traffic, he increased his speed to fifty or fifty-five miles per hour and proceeded to

pass both vehicles. According to Mr. Dyer, he was almost completely around the lead

vehicle when he “felt something.” He then looked in his rearview mirror and saw that

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Ms. Maricle’s vehicle had “bounced off” of his trailer and seemed to fall in line

behind his eighteen-wheeler. He then reentered the northbound lane and came to a

stop on the shoulder. According to Mr. Dyer, at no time during the passing maneuver

did his eighteen-wheeler traverse any part of the west shoulder of Hwy 165.

Immediately before the accident, Ms. Chevalier was driving her Chevrolet

Corsica north on Hwy 165 and was between the two vehicles involved in the

accident. According to Ms. Chevalier, when she left Oakdale, there was no vehicle

in front of her on Hwy 165. However, while traveling at fifty-five miles per hour, she

soon reached Ms. Maricle’s vehicle. When asked to describe her observations

concerning the accident, Ms. Chevalier stated the following:

Well, I saw [Ms. Maricle’s] blinker light finally. I hadn’t seen it
so I had to stop pretty abruptly but she was going to make a left hand
turn and just before I got caught up to her I could see the truck in my
rearview mirror and it sure did look like it was coming awful fast. And
I said, “Oh Lord, here I am in the middle”. Well, I stopped. I had to
stop pretty quick and I looked in my side of my mirror and here this
truck’s coming out of the left hand side of us. I was so scared, I couldn’t
let the woman know not to turn or anything and the truck, the trailer part
of it got right up to about halfway and she turned into it. I’m sure she
didn’t see him coming.

Ms. Chevalier disagreed with Ms. Maricle’s statement that the eighteen-wheeler

traversed the west shoulder of Hwy 165 during the passing maneuver. She stated that

when it passed her, the eighteen-wheeler was so close to her vehicle that “[Mr. Dyer]

could have reached out and grabbed a hold of us.”

Deputy Buxton testified that he was traveling south on Hwy 165 and was at

least 200 to 250 yards north of the intersection of Hwy 165 and Meyers Road when

the accident occurred. According to Deputy Buxton, Mr. Dyer’s eighteen-wheeler

had ample time to pass the two vehicles, as the southbound lane was clear all the way

to his sheriff’s unit. The deputy testified that he observed Ms. Maricle begin her left

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turn maneuver at that same time that Mr. Dyer began to pass and that both vehicles

crossed the centerline of Hwy 165 simultaneously. It appeared to Deputy Buxton that

Ms. Maricle stopped her vehicle one to two feet west of the highway centerline as Mr.

Dyer “aggressively” passed with one-half of his vehicle in the southbound lane and

one-half on the west shoulder. Deputy Buxton testified that, at the time of impact,

Mr. Dyer’s trailer was still partially on the west shoulder as he began to return to the

northbound lane. Once the impact occurred, Deputy Buxton did not see Ms.

Maricle’s vehicle again until the eighteen-wheeler had cleared the southbound lane

and she had come to a complete stop. Therefore, he could not say whether the impact

caused her vehicle to spin, although he testified that he thought it had. Deputy

Buxton also testified that he did not observe a left turn signal on Ms. Maricle’s

vehicle, but he stated that he was never close enough to the Maricle vehicle to see a

blinker. The deputy acknowledged that Mr. Dyer had adequate time to pass both

vehicles safely, that it is not illegal to pass aggressively, and that he did not consider

Mr. Dyer’s actions to be reckless. Had he been the investigating officer, he would not

have issued a citation to either party.

Trooper Mire arrived on the scene over one hour after the accident. He

interviewed Mr. Dyer at the scene and Ms. Maricle in an Oakdale hospital.

According to Trooper Mire, Ms. Maricle told him that she was attempting to turn onto

Meyers Road and that she did not see the eighteen-wheeler, while Mr. Dyer told him

that as he passed two slow-moving vehicles, Ms. Maricle turned into his path.

Trooper Mire examined the accident scene and concluded that the impact occurred

inside the southbound lane and that Ms. Maricle’s vehicle traveled thirteen feet after

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impact. After completing his investigation, he issued a traffic citation to Ms. Maricle,

charging her with making an unsafe turn in violation of La.R.S. 32:104.

Ms. Maricle recalled someone interviewing her at the hospital, but did not

recall everything she and the interviewer discussed. She denied that she told anyone

she never saw the eighteen-wheeler. She did remember that she was issued a traffic

citation, and she later paid the fee associated with the citation. According to Ms.

Maricle, she made the payment because an attorney told her that if she did so, it

would not appear on her driving record and she would not have to appear in court.

Verrel Paul Herbert, a resident of Quincy, California, who described his

occupation as that of “commercial vehicle safety and compliance specialist,” testified

on behalf of the plaintiffs and was recognized by the trial court, first as an expert in

the field of trucking safety, and later in his testimony as an expert in the field of

accident reconstruction. Mr. Herbert opined that Mr. Dyer did not properly manage

the speed of his eighteen-wheeler in the passing maneuver in that he should have

slowed down and communicated his presence before passing. He opined that the

impact occurred when Mr. Dyer tried to return to the northbound lane too soon and

that this negligence was the cause of the accident. In reaching this conclusion, Mr.

Herbert assumed as true that the brake lights on the Maricle and Chevalier vehicles

were engaged and visible to Mr. Dyer, that Ms. Maricle’s vehicle was stationary at

the time of impact, and that the Maricle vehicle was struck by the rear wheels of the

trailer as the eighteen-wheeler moved back into the northbound lane of Hwy 165.

According to Mr. Herbert, the rear wheel impact occurred because when an eighteen-

wheeler attempts to return to its original lane after a passing maneuver, the trailer will

not follow in the exact path of the tractor but will cheat, or off-track to the inside.

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However, by accepting as fact these relative positions of the tractor and trailer at the

time of impact, Mr. Herbert conceded that it would have been impossible for Deputy

Buxton to have seen the impact, as the tractor would have obstructed his view.

Mr. Herbert attempted to explain why Ms. Maricle’s vehicle traveled thirteen

feet forward after impact, even though it was stopped at impact, by theorizing that the

tire rims of both vehicles engaged, temporarily causing the truck to pull the car into

motion. He acknowledged that the more reasonable explanation of her forward

movement after impact is that she was moving at impact. Had she been stopped, and

assuming no engagement by the tire rims, he would have expected the vehicle to

come to rest in a northeasterly direction instead of a northwesterly direction. Mr.

Herbert also disagreed with both Ms. Maricle and Deputy Buxton in that he did not

believe the accident would have occurred at the established point of impact had any

portion of the trailer been on the west shoulder of Hwy 165 at the time of impact. He

attached no importance to whether or not on its way to its resting place the car spun

in a complete circle.

Gene Byron Moody, a Baton Rouge, Louisiana consulting engineer, was

recognized by the trial court as an expert in the field of accident reconstruction and

testified on behalf of the defendants. Mr. Moody’s evaluation of the evidence,

including the scrub marks caused by the car’s deflated tire on the pavement, caused

him to conclude that Ms. Maricle’s vehicle was actually in motion at the time of

impact and was moving toward the northwest at a slight angle as it began its turn onto

Meyers Road. According to Mr. Moody, the vehicle’s momentum carried it in that

direction and Ms. Maricle could not have stopped it prior to impact. In fact,

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according to Mr. Moody, the forward momentum was necessary for the vehicle to

have reached its final resting place after impact.

Both experts agreed that the point of impact was inside the southbound lane of

Hwy 165. Thus, based on the evidence presented, and particularly the experts’

opinions, it is clear that the single most important disputed fact in this matter is

whether or not the Maricle vehicle was in motion at the time of impact. If the vehicle

was not in motion at the time of impact, the argument that Mr. Dyer attempted to

return to the northbound lane too soon has credibility, establishing fault on his part.

If the Maricle vehicle was in motion at the time of impact, credence can be given to

the argument that Ms. Maricle either did not stop at all or, after stopping, did not see

the truck and simply drove into the trailer’s passing rear wheels, establishing fault on

her part. Mr. Moody concluded that Ms. Maricle was moving, and Mr. Herbert

concluded otherwise. The two versions of the accident are irreconcilably at odds with

each other.

After hearing the evidence presented and after being instructed as to the

applicable law, the jury was given a verdict form with five interrogatories to answer,

with the first three being related to the issue of liability and with the remaining two

being related to the issue of quantum. The first interrogatory related to the question

of Mr. Dyer’s fault, and the jury concluded that Mr. Dyer was without fault in causing

the accident. That conclusion rendered the remaining interrogatories moot.

OPINION

All four of the plaintiffs’ assignments of error relate to evidentiary rulings by

the trial court. The first three pertain to rulings admitting evidence unfavorable to

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Ms. Maricle, and the fourth pertains to a ruling excluding evidence arguably

favorable to her.

Assignment of Error Number One

In their first assignment of error, the plaintiffs assert that the trial court erred

in admitting evidence that Ms. Maricle was issued a traffic citation following the

accident and that she paid it, where there was no evidence that she entered a guilty

plea to the traffic offense. We find that this assignment of error has merit.

A guilty plea to a traffic offense is admissible into evidence as an admission

against interest relevant to show fault. Shephard ex rel. Shephard v. Scheeler,

96-1690, 96-1720 (La. 10/21/97), 701 So.2d 1308. It is competent evidence in a civil

action involving the same subject matter. Davis v. Bankston, 192 So.2d 614 (La.App.

3 Cir. 1966). However, in a civil case it is inadmissible merely to show that one or

the other of the parties was charged by the police with a traffic violation. Ruthardt

v. Tennant, 215 So.2d 805 (La.1968). Additionally, it is inadmissible in a civil case

to show that a party pleaded nolo contendere. La.Code Evid. art. 410.

Often, the payment of a traffic citation requires no court appearance. Pursuant

to La.R.S. 32:641(A), the judges of the various judicial districts1 are authorized to

“adopt a parishwide schedule of fines, penalties and costs for violations of traffic

laws . . . within the limits of such penalties as are set by law.” Any individual

charged with a violation of a traffic law included within the schedule “may enter a

written plea of guilty to the [traffic violation] by signing a declaration to that effect”

and pay the fine and costs provided on the schedule without having to appear in open

court. La.R.S. 32:641(B) and (E).

1
Other than the parish of Orleans, which is excepted from the statute.

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At a hearing held three days before the beginning of trial, the trial court heard

a number of evidentiary motions filed by both sides to the litigation. One was a

motion filed by the plaintiffs seeking to exclude any reference to the fact that Trooper

Mire had issued the traffic citation to Ms. Maricle for making an unsafe left turn or

to the fact that she had paid the fine associated with the traffic citation. The trial

court rejected this motion, and, at trial, Ms. Maricle was forced to admit on cross-

examination that she received the traffic citation and paid a fine. The defendants then

introduced a copy of the traffic citation, as well as a receipt issued by the sheriff’s

office, showing payment of the fine and costs. However, the defendants offered no

evidence to establish that Ms. Maricle had executed a written plea of guilty as

required by La.R.S. 32:641.

The defendants have provided us with no reference to authority for the

proposition that the mere payment of a fine without a corresponding written guilty

plea satisfies the requirement of La.R.S. 32:641. Our research reveals only one

Louisiana case which even remotely suggests that payment of a fine amounts to a

guilty plea, and even its language is ambiguous. Specifically, in Jackson v. St. Pierre,

336 So. 2d 261, 264 (La.App. 1 Cir. 1976), there is language to the effect that “both

[defendants] entered guilty pleas by paying the fines prescribed therefor.” The first

circuit further explained that, while such a plea is admissible against a defendant in

a civil proceeding, it is not conclusive, and the amount of weight to be given to such

a plea must be determined by consideration of all the evidence, including the reason

for the plea. In finding the defendants without fault, the first circuit gave weight to

their explanation “[t]hat it would be less hassle and expense to pay the fine rather

than go through with a trial on such a matter.” Id.

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To the extent that the Jackson decision seems to suggest that the payment of

a fine by itself equates to a guilty plea, we disagree. One of our neighboring states,

Arkansas, in Dedman v. Porch, 739 S.W.2d 685 (Ar.1987), has declined to hold that

paying a traffic ticket is an admission against interest, and we choose to follow that

rationale. Thus, we find that the trial court erred in allowing evidence of the traffic

citation and payment of the fine to be introduced at trial.

Assignment of Error Number Two

In their second assignment of error, the plaintiffs assert that the trial court erred

in allowing Trooper Mire to give opinion testimony with regard to the cause of the

accident. We also find merit in this assignment of error.

Trooper Mire was a rather inexperienced officer at the time of the accident. He

had graduated from the Louisiana State Police Academy just six months earlier and

was still in the supervisory or probationary period of his career. Although he testified

that he was not an expert in accident reconstruction, the trial court allowed him, by

reference to his accident report, to testify that Ms. Maricle was inattentive and

distracted at the time of the accident and that had she not been so, she would have

seen the eighteen-wheeler as it approached. The trial court based the admissibility

of this opinion on the trooper’s “experience as a police officer and his training.”

With regard to the cause of the accident, Trooper Mire testified that he noted

on his accident report that the “harmful event” in the accident was the movement of

Ms. Maricle’s vehicle. Additionally, Trooper Mire was allowed to testify, not that he

gave Ms. Maricle a traffic citation for an unsafe left turn, but that she committed an

unsafe left turn.

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The testimony of an investigating officer not qualified as an accident

reconstruction expert is limited to opinions based upon rational perceptions of facts

and recollections pertaining to the accident scene. Jaffarzad v. Jones Trucking, Inc.,

561 So.2d 144 (La.App. 3 Cir.), writ denied, 565 So.2d 450 (La.1990). It is

prejudicial error to allow a non-expert investigating officer to give opinions on

crucial fact determinations concerning liability when the officer did not witness the

accident. Fontenot v. Cooper, 599 So.2d 883 (La.App. 3 Cir.), writ denied, 604 So.2d

1305 (La.1992). We find that the trial court erred in allowing Trooper Mire to give

testimony in opinion form.

Assignment of Error Number Three

At the previously mentioned hearing on the evidentiary motions, the trial

court also rejected the plaintiffs’ motion to exclude Trooper Mire’s accident report

from being introduced into evidence. At trial, the trial court allowed the accident

report to be admitted into evidence pursuant to La.Code Evid. art. 803(5), but

declined to allow it to be published to the jury because certain portions contained

“inadmissible hearsay.” While the trial court did not allow the jury to examine the

report, it did allow Trooper Mier to be questioned extensively concerning the contents

of the report, and it did allow him to read directly from it. In their third assignment

of error, the plaintiffs assert that this was error on the part of the trial court. We

agree.

The contents of Trooper Mire’s accident report clearly contain hearsay as

defined by La.Code Evid. art. 801(C). The report is therefore inadmissible unless it

fits within one of the exceptions found in La.Code Evid. art. 803. While public

records and reports are generally considered as an exception to the hearsay

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exclusionary rule pursuant to La.Code Evid. art. 803(8), that same provision

specifically excludes “[i]nvestigative reports by police and other law enforcement

personnel” from that exception. La.Code Evid. art. 803(8)(b)(i).

The trial court found that the accident report was admissible pursuant to the

exception to the hearsay exclusionary rule found in La.Code Evid. art. 803(5), which

provides:

A memorandum or record concerning a matter about which a
witness once had knowledge but now has insufficient recollection to
enable him to testify fully and accurately, shown to have been made or
adopted by the witness when the matter was fresh in his memory and to
reflect that knowledge correctly. If admitted, the memorandum or
record may be read into evidence and received as an exhibit but may not
itself be taken into the jury room. This exception is subject to the
provisions of Article 612.

Louisiana Code of Evidence Article 612(A) relates to the use of writings to refresh

the memory of a witness and provides in pertinent part:

In a civil case, any writing, recording, or object may be used by
a witness to refresh his memory while testifying. If a witness asserts
that his memory is refreshed he must then testify from memory
independent of the writing, recording, or object. If, before or during
testimony, a witness has used a writing, recording, or object to refresh
his memory for the purpose of testifying in court, an adverse party is
entitled, subject to Paragraph C, to have the writing, recording, or object
produced, if practicable, at the hearing, to inspect it, to examine the
witness thereon, and to introduce in evidence those portions which relate
to the testimony of the witness.

Louisiana Code of Evidence Article 612(C) provides:

If it is claimed that a writing or recording contains matters not
related to the subject matter of the testimony the court shall examine it
in camera, excise any portions not so related, and order delivery of the
remainder to the party entitled thereto. Any portion withheld over
objections shall be preserved and made available to the appellate court
in the event of an appeal.

In the matter before us, Trooper Mire was asked whether he needed his report

in order to testify, and he responded: “I’m gonna need the report to be accurate.”

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Significantly, he was never asked whether his review of the report refreshed his

memory or whether he had insufficient recollection to testify and was relying solely

on the content of the report. Because there is no evidence of insufficient recollection,

the trial court erred in admitting the accident report and, at the same time, in allowing

the trooper to testify concerning its contents, as if he had independent recollection.

Additionally, as pointed out in Talamo v. Shad, 619 So.2d 699, 701-02 (La.App. 4

Cir.), writ denied, 625 So.2d 175 (La.1993), for a document to be admissible under

La.Code Evid. art. 803(5), “it must be shown, among other things, that the witness

had firsthand knowledge of the matter described in the memorandum.” While

Trooper Mire had firsthand knowledge of matters he observed in his investigation,

his conclusions with regard to the accident itself were acquired from his investigative

analysis, and not from firsthand knowledge. Therefore, the trial court erred in

allowing introduction of the accident report and in allowing Trooper Mire to read

from that report.

Assignment of Error Number Four

In this final assignment of error, the plaintiffs assert that the trial court erred

in excluding evidence of Mr. Dyer’s violation of Transwood Trucking’s safety rules

by failing to sound his horn as he began his passing maneuver. The ruling rejecting

this evidence was again rendered by the trial court at the hearing held three days

before trial. We reject this assignment of error.

The safety rule at issue is Transwood Trucking Safety Rule No. S-2, which

requires in pertinent part that a Transwood Trucking driver sound his horn when

passing a vehicle from the rear. As pointed out by the defendants in brief, the only

violations pled by the plaintiffs were the laws of the State of Louisiana and of the

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Parish of Allen. The trial court did not err in granting the motion to exclude this

evidence.

Standard of Review

Ordinarily, we review a jury’s factual findings under the manifest error

standard of review. See Rosell v. ESCO, 549 So.2d 840 (La.1989). However,

“[w]here one or more trial court legal errors interdict the fact-finding process, the

manifest error standard is no longer applicable, and, if the record is otherwise

complete, the appellate court should make its own independent de novo review of the

record and determine a preponderance of the evidence.” Ferrell v. Fireman’s Fund

Ins. Co., 94-1252, p. 7 (La. 2/20/95), 650 So.2d 742, 747.

Ms. Maricle and Ms. McDaniel urge this court to conduct a de novo review

based on the various trial court errors alleged. On the other hand, the defendants

argue that this is nothing more than a manifest error case. However, in making this

argument, the defendants have not directly responded to the plaintiffs’ assignments

of error. Rather, their response begins and ends with the contention that any errors

as to the admissibility of evidence addressing Ms. Maricle’s negligence should not

be considered on appeal because the only decision the jury reached was that Mr. Dyer

was not negligent. The defendants accordingly maintain that because the jury never

made a finding regarding Ms. Maricle’s negligence, the verdict could not be tainted

by error.

Initially, we acknowledge that the supreme court, in Picou v. Ferrara, 483

So.2d 915 (La.1986), held that when the trial court’s legal error taints only one of

several findings of fact by the jury, the reviewing court may give the usual deference

to the untainted findings and make de novo determinations without regard to the

15

findings of the jury as to the tainted issues. This circuit applied that holding in Nalle

v. State Farm Fire & Cas. Co., 97-441 (La.App. 3 Cir. 10/8/97), 702 So.2d 854, 860

n.4, writ denied, 97-2832 (La. 2/13/98), 706 So.2d 994. However, we do not find that

the holding in Picou is applicable to the circumstances of the present case.

Specifically, the issue of the negligence of Ms. Maricle and Mr. Dyer was such

that a finding of no fault on the part of Mr. Dyer was tantamount, under the facts of

this case, to an implicit finding of fault on the part of Ms. Maricle. By admitting the

evidence that Ms. Maricle got a ticket and paid the fine, the trial court effectively

encouraged the jury to consider that the trooper found Ms. Maricle at fault, which

concomitantly tilted the scales in favor of a finding that Mr. Dyer was not at fault at

all. In reaching this conclusion, we also recognize that Ms. Maricle was allowed at

trial to explain why she paid the fine and costs. However, absent a valid written plea

of guilty, she should not have been required to explain anything with regard to the

traffic citation. That is to say, she is not required to explain or defend herself against

inadmissible evidence.

The resulting prejudice was all the more pronounced because the evidence

affected a material fact determinative of the cause of the accident, i.e., whether the

Maricle car was in motion when the collision took place or whether it was stopped.

Further, allowing Trooper Mire to give an expert opinion on the issue of accident

reconstruction and allowing his report to be admitted into evidence essentially clothed

his unqualified conclusions as to Ms. Maricle’s fault with an indicia of reliability and

resulted in him answering the credibility question for the jury.

Thus, we find that the first three assignments of error have merit, and we find

that the introduction of this inadmissible evidence resulted in legal errors that

16

interdicted the fact-finding process to the extent that a de novo review of the record

is required. Accordingly, no weight should be accorded the judgment of the trial

court which implements this jury verdict because it is simply not entitled to a

presumption of regularity. McLean v. Hunter, 495 So.2d 1298 (La.1986).

De Novo Review

In Louisiana tort cases, the plaintiff has the burden of proving every essential

element of his case by a preponderance of the evidence. Duncan v. Safeway Ins. Co.

of La., 35,240, 35-241 (La.App. 2 Cir. 10/31/01), 799 So.2d 1161. Essential elements

in the present case were that Mr. Dyer was negligent and that his negligence was a

cause-in-fact of the accident. Both a passing maneuver and a left-turning maneuver

are dangerous vehicular activities. Craig v. Hebert, 99-1222 (La.App. 3 Cir. 2/2/00),

758 So.2d 260. In this case, both drivers, Mr. Dyer who was passing and Ms.

Maricle who was turning left, were required to exercise a high degree of care in

executing their respective dangerous maneuvers. See id.

The duty imposed upon the passing motorist is specifically set forth in La.R.S.

32:73 and 32:75. Louisiana Revised Statutes 32:73(1) provides that “the driver of a

vehicle overtaking another vehicle proceeding in the same direction shall pass to the

left thereof at a safe distance, and shall not again drive to the right side of the

roadway until safely clear of the overtaken vehicle.” Additionally, La.R.S. 32:75

provides:

No vehicle shall be driven to the left side of the center of the
highway in overtaking and passing another vehicle proceeding in the
same direction unless such left side is clearly visible and is free of
oncoming traffic for a sufficient distance ahead to permit such
overtaking and passing to be completely made without interfering with
the safe operation of any vehicle approaching from the opposite
direction or any vehicle overtaken. In every event the overtaking
vehicle must return to the right-hand side of the roadway before coming

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within one hundred feet of any vehicle approaching from the opposite
direction.

“Based on these statutes, the jurisprudence holds that the driver of a following or

overtaking vehicle must be alert to the actions of motorists preceding him on the

highway.” Perkins v. Allstate Indem. Ins. Co., 36,044, p. 3 (La.App. 2 Cir. 6/12/02),

821 So.2d 647, 649. “More particularly, the driver of an overtaking or passing

vehicle has the duty to ascertain before attempting to pass a preceding vehicle that

from all the circumstances of traffic, lay of the land, and conditions of the roadway,

the passing can be completed with safety.” Kilpatrick, 663 So.2d at 66.

The duties imposed upon a left-turning motorist are found in La.R.S. 32:104.

Under this statute, Ms. Maricle was required to signal her intent to make a left turn

at least 100 feet before reaching Meyers Road. In addition, the left-turning driver

must look to her rear to see if the left-hand lane is clear before beginning the left turn.

Kilpatrick v. Alliance Cas. & Reinsurance Co., 95-17 (La.App. 3 Cir. 7/5/95), 663

So.2d 62, writ denied, 95-2018 (La. 11/17/95), 664 So.2d 406.

Simply stated, when one considers both the uncontradicted and the contradicted

evidence, the dynamics of the accident could have occurred in only one of two ways:

either Mr. Dyer began a passing maneuver and cut back too sharply, striking Ms.

Maricle’s stationary vehicle, or Ms. Maricle drove into the side of Mr. Dyer’s

eighteen-wheeler as he passed her vehicle. Obviously, the plaintiffs argue that Mr.

Dyer cut back too sharply, striking her stationary vehicle.

The testimony and physical evidence overwhelmingly establish that the

accident at issue occurred entirely in the southbound lane of Hwy 165, and at a time

when Mr. Dyer had almost completed his passing maneuver; that as Mr. Dyer

approached the slow-moving Chevalier and Maricle vehicles, and even as he changed

18

lanes to begin his passing maneuver, he had an unobstructed view of a clear

southbound lane; and that his return to the right side of the highway occurred long

before Deputy Buxton’s vehicle came within 100 feet of the eighteen-wheeler. Thus,

the only requirement of La.R.S. 32:75 at issue with regard to Mr. Dyer’s operation is

whether the passing maneuver could be accomplished without interfering with the

safe operation of Ms. Maricle’s vehicle.

In contrast, the testimony and evidence does not overwhelmingly establish that

Ms. Maricle timely signaled her intent to make a left turn. While she testified that she

activated her left turn signal 100 yards before beginning her turn, Deputy Buxton

never saw a signal, and Ms. Chevalier “finally” saw the signal and had to stop

“abruptly.” This suggests that the turn signal was engaged, not at 100 yards from the

intersection, but very late, and probably after the eighteen-wheeler entered the

passing lane.

Deputy Buxton’s testimony does not assist the plaintiffs’ case, although he

does provide some evidence of improper driving by Mr. Dyer. Having viewed the

accident from at least 200 yards, he suggested that the eighteen-wheeler aggressively

passed the two vehicles while partly on the west paved shoulder of Hwy 165 and

partly in the southbound lane, that the eighteen-wheeler and Ms. Maricle’s vehicle

crossed the centerline of Hwy 165 at exactly the same time, and that he actually saw

the collision. As pointed out by both experts, it would have been impossible for the

eighteen-wheeler to make contact with Ms. Maricle’s vehicle at the point of impact

if any part of the trailer was still on the west shoulder of the highway. Additionally,

Ms. Maricle could not have crossed the centerline at the same time as Mr. Dyer and

still observe the eighteen-wheeler in her rearview mirror. Furthermore, Mr. Herbert

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testified that it was not possible for Deputy Buxton to have seen the collision if the

eighteen-wheeler was attempting to return to the northbound lane at that point in time.

Ms. Maricle’s own testimony conflicts with a finding of fault on the part of Mr.

Dyer. Concerning her initial actions in effecting her turn, she stated: “I started my

turn and I looked in my rearview mirror and I saw the eighteen wheeler coming

around so I stopped so I wouldn’t hit him.” In other words, when she looked in her

rearview mirror, the eighteen-wheeler had already begun to pass. For Ms. Maricle to

have seen the eighteen-wheeler in her mirror, her vehicle would have had to have

been parallel to the highway, and she would have had to have turned into the

southbound lane after that observation.

Our evaluation of the preponderance of the evidence is that Ms. Maricle was

solely responsible for this accident. The evidence in her favor is not reconcilable.

Ms. Chevalier, the person with the best vantage point, testified that Ms. Maricle

turned into the eighteen-wheeler. Additionally, Ms. Maricle’s own expert admitted

that, while he reached a different conclusion concerning the reason for the post-

accident location of the Maricle vehicle, the more reasonable explanation of her

forward movement after impact was that she was moving at impact. Given the record

as a whole, the evidence preponderates that not only was Ms. Maricle’s car in the

wrong lane, but also it was in motion when the impact occurred.

In conclusion, the evidence preponderates that Ms. Maricle did not see the

passing eighteen-wheeler and turned across the centerline of Hwy 165 and into the

trailer. Thus, we assess all of the fault in causing this accident to Ms. Maricle.

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DISPOSITION

For these reasons, we affirm the judgment of the trial court dismissing the

claims of Marilyn Maricle and Audrey McDaniel against Donald Gene Dyer,

Transwood Trucking Company, and Liberty Mutual Insurance Company. We assess

all costs of this appeal to Marilyn Maricle and Audrey McDaniel.

AFFIRMED.

21

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

04-1149

MARILYN MARICLE, ET AL.

VERSUS

LIBERTY MUTUAL INSURANCE CO., ET AL.

COOKS, J. dissents.

I respectfully dissent from the majority opinion finding Ms. Maricle solely at

fault. I would have found the trucker, Donald Dyer, partly at fault in causing this

accident. I agree with the majority opinion finding the verdict was tainted by the

error of the trial court in allowing inadmissable and highly prejudicial evidence to be

considered by the jury. Moreover, Trooper Mire, the officer who issued the traffic

citation, did not arrive on the scene until about an hour after the accident and his

testimony can offer nothing as to the cause of the accident.

Once the improper evidence is excluded, the remaining evidence consists of

each party’s accident reconstruction expert and the two independent witnesses,

Deputy Buxton and Ms. Chevalier. The two accident reconstruction experts differ in

their opinion as to the cause of the accident. There is sufficient evidence to support

a finding Mr. Dyer was partly at fault. The independent witnesses to the accident,

Deputy Buxton and Ms. Chevalier, both testified Mr. Dyer was traveling at an

excessive rate of speed when he was attempting to pass not one, but two vehicles.

Ms. Chevalier testified: “I could see the truck in my rearview mirror and it sure did

look like it was coming awful fast. And I said, ‘Oh Lord, here I am in the middle.’”

Additionally, Ms. Chevalier corroborated Ms. Maricle’s testimony that she activated

her brake lights and turn signal. Deputy Buxton was traveling on the opposite lane

coming toward Ms. Maricle and testified the trucker was passing “aggressively”,

obviously unaware Ms. Maricle was stopped preparing to turn left. He testified both

vehicles crossed the centerline at the same time. Deputy Buxton testified as follows:

Q. At the point Ms. Maricle, right before she began her turn, before she
began turning left had the eighteen wheeler come out to pass?
A. No sir.
Q. I’m sorry?
A. No sir.
Q. Who broke the centerline first?
A. To me, both of them did
Q. All right. So it’s simultaneous?
A. Yes sir.
Q. And when they both broke the centerline what happened next?
A. When both of them broke the centerline it appeared that Ms. Maricle,
as she started turning to make her left turn to me she observed the
eighteen wheeler coming at her and it appeared she had stopped and
then the eighteen wheeler, when he came out he came out what I call
aggressive. To pass he was half on the shoulder, half in the lane of
travel.
Q. Say that again, please?
A. He was half on the shoulder and half on the lane of travel. The
southbound lane.
Q. All right.
A. She must have observed him and he got by her but when he cut back
in he (inaudible). The rear of the trailer hit the front of her car.
....

Q. Did you feel from what you observed, in your view, that the
maneuver that you saw Mr. Dyer engaged in was safe?
A. No sir.

Of significance to the majority was whether Ms. Maricle’s vehicle was moving

at the time of the accident. The majority theorizes: “If the vehicle was not in motion

at the time of impact, the argument that Mr. Dyer attempted to return to the

northbound lane too soon has credibility, establishing fault on his part.” However,

the majority opinion ignores the testimony of Ms. Maricle’s reconstruction expert that

her vehicle was stopped at the time of impact and the testimony of Deputy Buxton,

an eye witness to the accident. At trial Deputy Buxton was specifically questioned

regarding that point:

Q. At the point of impact was Ms. Maricle’s vehicle moving from
what you could observe?
A. No sir. To me it appeared she had stopped.

The majority also ignores the testimony of Ms. Chevalier who was positioned

directly behind Ms. Maricle’s vehicle. Ms. Chevalier testified as follows:

Well, I saw her blinker light finally. I hadn’t seen it so I had to
stop pretty abruptly but she was going to make a left hand turn and just
before I got caught up to her I could see the truck in my rearview mirror
and it sure did look like it was coming awful fast. And I said, “Oh Lord,
here I am in the middle.” Well, I stopped. I had to stop pretty quick and
I looked in my side of my mirror and here this truck’s coming out of the
left hand side of us.

Ms. Chevalier’s testimony provides an insight into what might have happened

to cause the accident. Ms. Chevalier testified when she and Ms. Maricle were

slowing down, the truck was still behind Ms. Chevalier. Instead of stopping behind

Ms. Chevalier, Mr. Dyer attempted to execute a passing maneuver around the two

stopped vehicles. Ms. Maricle checked her rearview mirror and saw only Ms.

Chevalier’s vehicle. As she began her turn she visualized the truck for the first time

along side of her. She crossed the centerline and stopped. When Mr. Dyer attempted

to complete his passing maneuver, his trailer collided with the front end of Ms.

Maricle’s vehicle. Moreover, I would find Mr. Dyer was negligent in attempting to

pass two stopped vehicles at the intersection of Meyers Road and U.S. Hwy. 165.

Louisiana Revised Statute 32:76 provides, in relevant part:

A. No vehicle shall at any time be driven to the left side of the
highway under the following conditions:
(2) when approaching within one hundred feet of or traversing
any intersection or railroad grade crossing.

Although the majority opinion notes the “centerline is a dashed yellow line

indicating that it is not a no passing zone”, I would find a passing motorist is held to

a greater degree of care when attempting to pass at an intersection such as this one

where it is reasonable to assume motorists would be turning left.

Despite evidence in the record supporting two credible versions of the accident

which, the majority admits, “are irreconcilably at odds with each other”, the majority

opinion, in the guise of a de novo review, reconstructs the events and concludes Ms.

Maricle was solely at fault in causing the accident. I respectfully submit the only

reasonable conclusion, based on the admissible evidence, is Ms. Maricle and Mr.

Dyer were both at fault in some way in causing this accident. The Louisiana

legislature in its wisdom enacted the comparative fault statute for situations such as

this one. On the facts presented here, I would find both parties at fault in causing this

accident.