Joseph Moraus v. Jennifer Frederick

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-429

JOSEPH MORAUS

VERSUS

JENNIFER H. FREDERICK, ET AL.

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2003-5445-A
HONORABLE MARK JEANSONNE, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Glenn B. Gremillion, J. David Painter, and James T. Genovese,
Judges.

AFFIRMED IN PART AS AMENDED;
REVERSED IN PART; AND RENDERED.

Paul D. Oberle, Jr.
1800 Creswell Avenue
Shreveport, Louisiana 71134
COUNSEL FOR DEFENDANT/APPELLANT:
Imperial Fire & Casualty Insurance Company

John T. Bennett
Post Office Box 275
Marksville, Louisiana 71351
COUNSEL FOR PLAINTIFF/APPELLEE:
Joseph Moraus

GENOVESE, Judge.

This is an automobile accident case where the Defendant UM carrier appeals

the trial court’s judgment finding the Plaintiff only 20% at fault. Plaintiff answered

the appeal seeking additional attorney’s fees as damages for a frivolous appeal. We

amend the trial court’s allocation of fault, reduce the future general and special

damage awards, and deny the Plaintiff’s request for damages for frivolous appeal.

FACTS

This suit arises out of a motor vehicle accident which occurred on July 2, 2003,

in Ascension Parish. The accident occurred on U.S. Highway 61, also known as

Airline Highway, which is a four-lane roadway with two lanes of travel each for

vehicles traveling north and south and a grassy median dividing the north and

southbound lanes. Immediately before the accident, Plaintiff, Joseph Moraus

(“Moraus”), was proceeding north on Airline Highway and decided to execute a “u-

turn” from the northbound lanes at a designated crossover. Defendant, Jennifer

Frederic (“Frederic”),1 was proceeding in a southerly direction on Airline Highway

when Moraus crossed the inside southbound lane and turned left into the outside

southbound lane. Either immediately or soon thereafter, which is not apparent from

the record, Moraus allegedly attempted to merge left into the inside southbound lane.

The physical evidence indicates that the right side of Frederic’s vehicle collided with

the left side of Moraus’ vehicle.

As a result of this accident, Moraus, a domiciliary of Avoyelles, filed this

personal injury suit against Frederic and her liability insurer, State Farm Mutual

Automobile Insurance Company (“State Farm”), and also his uninsured/underinsured

(“UM”) motorist carrier, Imperial Fire and Casualty Insurance Company (“Imperial”).

1
Incorrectly spelled “Frederick” throughout the pleadings and the record.

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Prior to trial, Moraus settled with Frederic and State Farm, thereby leaving only his

UM claim against Imperial.

On December 15, 2004, the unresolved UM claim was tried before the court

pursuant to bench trial. In order to expedite the proceedings, counsel for the parties

submitted into the record the accident report, all medical records, the deposition

testimony of Moraus and Frederic, insurance documentation, and stipulated to

Moraus’ medical bills in the amount of $3,828.04. In oral reasons for judgment, the

trial court found Frederic 80% at fault and Moraus 20% at fault in causing the

accident. Moraus was awarded damages for past and future medical expenses, past

and future pain and suffering, legal interest from the date of judicial demand, court

costs and deposition fees.

Imperial appeals the “80-20" allocation of fault and the total amount of

$50,328.00 in general and special damages as being excessive for a soft tissue injury.

Moraus answered the appeal to assert that he is entitled to damages for Imperial’s

filing of a frivolous appeal.

ISSUES

The issues before us are:

(1) whether the trial court erred in the assessment of fault between
Moraus and Frederic;

(2) whether the trial court abused its discretion in awarding a total of
$50,328.00 in damages for Moraus’ injuries; and

(3) whether this appeal is frivolous entitling Appellee/Moraus to
damages pursuant to La.Code Civ. P. art. 2164.

LAW AND DISCUSSION

Allocation of Fault

Imperial contends that the trial court was manifestly erroneous in its assessment

of only 20% fault to the Plaintiff. It argues that Moraus drove his vehicle from an

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inferior position on the roadway directly and inexplicably into the path of an

oncoming vehicle without first determining that such a maneuver could be

accomplished in a safe manner. The record is replete with contradictory testimony.

In his deposition, Moraus states the accident occurred as he was traveling north

on Airline Highway en route to a grocery store and realized that he had forgotten his

money. He decided to turn around. He entered the median in order to execute a u-

turn into the southbound lanes. After stopping at a designated crossover, he then

proceeded to crossover into the outside southbound lane. While stopped at the

crossover, Moraus stated that he saw Frederic’s truck approaching in the outside lane

at a distance of approximately 200 to 300 yards away. Moraus testified that even

though he saw no approaching traffic in the inside southbound lane, he crossed the

inside lane and traveled into the outside southbound lane in front of Frederic’s truck.

Moraus stated that he observed in his rear view mirror that Frederic’s truck was

coming up “fast” behind him so he signaled left and then began to merge into the

inside lane. Moraus testified that about a hundred fifty yards after turning onto

Airline Highway and heading south, Frederic’s truck hit the back of his vehicle,

thereby damaging the whole left side. He testified that the collision occurred in the

left hand southbound lane.

In her deposition, Frederic states that the accident occurred as she was on her

way to her son’s daycare. She turned right off Old Perkins Road into the southbound

inside lane of Airline Highway. Frederic stated she immediately saw Moraus’ vehicle

as it came to a stop at the crossover approximately three to four car lengths ahead.

She testified she was traveling between forth-five and fifty-five miles per hour.

Frederic stated that after four or five seconds Moraus drove forward, crossed over

both the inside and outside lanes, drove onto the shoulder, and then turned and drove

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his truck back towards the inside lane of travel. Frederic testified that the front right

side of her truck was struck by the front left side of Moraus’ truck, thereby pushing

her vehicle into the median as a result of the collision.

The State of Louisiana Uniform Motor Vehicle Traffic Crash Report, admitted

into evidence by stipulation of the parties, contains a drawing which purportedly

shows the point of impact as being just right of the center line, at the westernmost

part of the outside lane.

Louisiana Revised Statute 32:73 sets forth the duties of a motorist overtaking

and passing a vehicle traveling in the same direction as follows:

(1) Except when overtaking and passing on the right is permitted,
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.

(2) Except when overtaking and passing on the right is permitted,
the driver of an overtaken vehicle shall give way to the right in favor of
the overtaking vehicle on audible signal, and shall not increase the speed
of his vehicle until completely passed by the overtaking vehicle.

Louisiana Revised Statute 32:79 creates a duty for a driver to refrain from

switching traffic lanes until it has first been ascertained that such movement can be

safely made. The record and evidence clearly shows that Moraus breached this duty.

We find that the trial court erred in allocating only 20% fault to Moraus for this

accident. We must adjust the allocation of fault giving deference to the trial court's

allocation of fault. Clement v. Frey, 95-1119, 95-1163 (La. 1/16/96), 666 So.2d 607.

This court, in Budget Rent-A-Car of New Orleans v. Gradnigo, 611 So.2d 147,

151 (La.App. 3 Cir. 1992) (citing Walton v. Bellard, 581 So.2d 307 (La.App. 1 Cir.

1991), writ denied 585 So.2d 567 (La.1991)), discusses the allocation of fault as

follows:

“It is well settled that the allocation of comparative negligence is

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a factual matter, and such determination will not be disturbed on appeal
unless it is clearly wrong or manifestly erroneous. Varnado v.
Continental Insurance Company, 446 So.2d 1343, 1345 (La.App. 1st
Cir. 1984). . . .”

In an action for injury or loss, the trier of fact shall determine the degree or

percentage of fault of all persons found to have contributed or caused that injury or

loss. La.Civ.Code art. 2323. When apportioning fault, the factfinder should consider

the five factors enunciated in Watson v. State Farm Fire & Casualty Insurance Co.,

469 So.2d 967 (La.1985), which include: “(1) whether the conduct resulted from

inadvertence or involved an awareness of danger, (2) how great a risk was created

by the conduct, (3) the significance of what was sought by the conduct, (4) the

capacities of the actor, whether superior or inferior, and (5) any extenuating

circumstances which might require the actor to proceed in haste, without proper

thought.” Id. at 974.

It is obvious that the trial court gave greater weight to the deposition testimony

of Moraus as to how this accident occurred. The court even opines and superimposes

its own assessment of how the accident happened, adopting for the most part the

sequence of events as described by Moraus. In fact, even though Moraus testified one

way, the trial court obviously interpreted it another.

In its oral reasons for judgment, the trial court proclaimed:

Mr. Moraus testified that he made a legal u-turn on that highway,
Highway 61, and then was proceeding thereafter the same direction as
the defendant, the other driver, Ms. Frederick [sic]. He indicated that he
saw her vehicle coming but it was a long ways off and he took what he
described as the outside lane. He did indicate he noticed she was
coming pretty fast and that he switched over and that she did the same
thing at the same time and she ran into him. He indicated that he
switched over and I think what he meant and his abilities are probably
somewhat limited. I think obviously but he intended to switch over
whether he actually switched over or not, I don’t think he did because
of the impact but he intended to switch over. (Emphasis added).

Moraus’ deposition testimony reveals that he did establish his position in the inside

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lane of Airline Highway South when the collision occurred.

BY DEFENSE COUNSEL: When you left the median, you went
directly to the outside lane. . .

BY MR. MORAUS: Yes, sir.

Q. . . . without ever really driving in the inside lane?

A. No, sir. I went to the - - well, I had to cross the inside lane
to get to the outside lane.

Q. Right. You just crossed it, but you didn’t actually travel
in it, is that. . .

A. No, sir. Until I seen her coming at a high rate of speed,
then I switched over.

Q. Tell me why you switched from the outside to the inside?

A. Because she was coming fast. When I came to a complete
stop, she was a long ways off and I couldn’t tell she was coming that fast
and she switched over the same time I guess.

Q. Did you see the two vehicles make contact with one
another?

A. No sir, I couldn’t see it.

Q. Where were you looking?

A. I was looking straight ahead.

Q. Were you completely within the inside lane of travel when
the collision occurred?

A. Yes sir, I established my lane.

Frederic testifies she was never in the outside lane as Moraus alleges.

However, even if Frederic were in the outside lane and then proceeded to the inside

lane to overtake Moraus, we find Moraus at fault for switching of lanes after

observing Frederic approaching “fast.” Both Moraus and Frederic testified to be

going approximately forty-five to fifty-five miles per hour. The State of Louisiana

Uniform Motor Vehicle Traffic Crash Report indicates that the speed zone on Airline

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Highway where this collision occurred is sixty-five miles per hour. Without any

additional proof in the record that Frederic was driving at an excessive rate of speed,

that allegation is unproven. Louisiana Revised Statutes 32:71, 32:73, and 32:79

require slower vehicles to yield the inside lane to faster traffic and also require that

a motorist not switch lanes unless safe to do so.

We find that the trial court erred in assessing only 20% of the fault of this

accident to Moraus. It was manifest error and clearly wrong in not finding that

Moraus had a higher degree of fault when he admitted to proceeding across an empty

lane of travel into an occupied lane, and switching traffic lanes without first fully

ascertaining that such movement could be made safely. Therefore, we find the lowest

reasonable amount of fault that could be assessed to Moraus to be 50%.

Quantum

Imperial next contends that the trial court’s award of damages is excessive.

The trial court awarded Moraus $43,000.00 for pain and suffering, $3,000.00 for

future pain and suffering, $3,328.04 for special damages, and $1,000.00 for future

specials.

Past and Future General Damages, Past Special Damages

The Louisiana Supreme Court explained the standard of review of general

damage awards in Duncan v. Kansas City Southern Railway Co., 00-66, pp. 13-14

(La. 10/30/00), 773 So.2d 670, 682-83, cert. denied, 532 U.S. 992, 121 S.Ct. 1651

(2001), as follows:

General damages are those which may not be fixed with pecuniary
exactitude; instead, they "involve mental or physical pain or suffering,
inconvenience, the loss of intellectual gratification or physical
enjoyment, or other losses of life or life-style which cannot be definitely
measured in monetary terms." Keeth v. Dept. of Pub. Safety & Transp.,
618 So.2d 1154, 1160 (La.App. 2 Cir.1993). Vast discretion is accorded
the trier of fact in fixing general damage awards. La. Civ.Code art.
2324.1; Hollenbeck v. Oceaneering Int., Inc., 96-0377, p. 13 (La.App.

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1 Cir. 11/8/96); 685 So.2d 163, 172. This vast discretion is such that an
appellate court should rarely disturb an award of general damages. Youn
v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert.
denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Thus,
the role of the appellate court in reviewing general damage awards is not
to decide what it considers to be an appropriate award, but rather to
review the exercise of discretion by the trier of fact. Youn, 623 So.2d at
1260. As we explained in Youn:

Reasonable persons frequently disagree about the
measure of general damages in a particular case. It is only
when the award is, in either direction, beyond that which a
reasonable trier of fact could assess for the effects of the
particular injury to the particular plaintiff under the
particular circumstances that the appellate court should
increase or decrease the award.

Id. at 1261.

The initial inquiry, in reviewing an award of general damages, is
whether the trier of fact abused its discretion in assessing the amount of
damages. Cone v. National Emergency Serv. Inc., 99-0934
(La.10/29/99), 747 So.2d 1085, 1089; Reck v. Stevens, 373 So.2d 498
(La.1979). Only after a determination that the trier of fact has abused its
"much discretion" is a resort to prior awards appropriate and then only
for the purpose of determining the highest or lowest point which is
reasonably within that discretion. Coco v. Winston Indus., Inc., 341
So.2d 332 (La.1976).

In the present case, the trial court found that the testimony and medical records

supported the finding that the accident in this case caused injuries to Moraus’ upper

left arm, left shoulder and neck. The trial court found that Moraus’ medical treatment

was consistent with his injuries. Moraus sought treatment from July of 2003 to

November of 2004. The trial court broke down it’s damage award as follows:

$3,500.00 per month for the first two months; $2,500.00 per month for September

2003 through September 2004; and $1,000.00 per month for October, November and

December of 2004 (through date of trial).

Imperial contends that the trial court’s award is clearly unreasonable as it

averages out to be a $2,625.00 per month award for a soft tissue injury for which

Moraus allegedly received only conservative treatment. Moraus was consistent in his

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treatment and is observed by the trial court not to be a malingerer.

Having reviewed the record in this case, including Moraus’ testimony and the

medical records presented, we find no basis to disturb the trial court’s award for past

and future general damages.

Future Special Damages

This court discussed the burden of proof required to support an award for

future medical expenses in Veazey v. State Farm Mutual Auto Insurance, 587 So.2d

5, 8 (La.App. 3 Cir. 1991) (citations omitted) as follows:

Future medical expenses, like any other damages, must be
established with some degree of certainty. The plaintiff must show that,
more probably than not, these expenses will be incurred. Awards will
not be made in the absence of medical testimony that they are indicated
and setting out their probable cost. An award for future medical
expenses cannot be based on mere speculation of the jury. Much
stronger proof, such as medical testimony of the specific expenses to
arise, should be required for such an award.

There is no medical evidence in the record of Moraus’ need for future medical

treatment. We find that the trial court erred in awarding “future specials in the

amount of $1,000.00.” Thus, we reverse the trial court’s judgment in regards to this

award.

After reviewing the record, we find no medical evidence supporting an award

for Moraus’ future medical expenses.

Frivolous Appeal

Finally, Moraus claims “this appeal seems to be more of a delay tactic in

paying than it is an appeal based on any merit.” He claims that he is entitled to

damages for frivolous appeal.

Louisiana Code of Civil Procedure Article 2164 provides for an award of

damages for frivolous appeal. If the court feels that counsel for the appellant does not

seriously advocate the position taken or that the appeal was filed solely for dilatory

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purposes, then damages for frivolous appeal are appropriate. Gallien v. Winn-Dixie,

96-832 (La.App. 3 Cir. 12/11/96), 685 So.2d 531 (citing Hampton v. Greenfield, 618

So.2d 859 (La.1993)); Doe v. Roman Catholic Church, 94-1476 (La.App. 3 Cir.

5/3/95), 656 So.2d 5, writ denied, 95-2076 (La. 11/13/95), 662 So.2d 478. However,

if even the slightest justification is found for the appeal, and even if the appellant

does not prevail on appeal, damages will not be awarded. Hawkins v. City of

Jennings, 97-1291 (La.App. 3 Cir. 3/6/98), 709 So.2d 292.

We do not find this appeal to be frivolous. Neither the record nor the briefs

indicate that counsel for Imperial does not seriously advocate the position taken, or

that this appeal was filed as a dilatory tactic. There were genuine issues presented in

this appeal. Thus, we deny Moraus' request for damages for frivolous appeal.

DECREE

For the foregoing reasons, we amend the judgment of the trial court to increase

the allocation of fault of Joseph Moraus to 50%, and to reduce the allocation of fault

of Jennifer Frederick to 50%. We affirm the trial court’s awards for past special

damages and for past and future general damages. We reverse the award for future

special damages as not legally proven. Further, we deny Plaintiff’s request for

damages for frivolous appeal. Costs of this appeal are assessed 50% against the

Plaintiff, Joseph Moraus, and 50% against the Defendant, Imperial Fire and Casualty

Insurance Company.

AFFIRMED IN PART AS AMENDED; REVERSED IN PART; AND
RENDERED.

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