Eric Fontenot v. Progressive Security Ins. Co.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-445

ERIC FONTENOT

VERSUS

PROGRESSIVE SECURITY
INSURANCE COMPANY, ET AL.

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APPEAL FROM THE
PINEVILLE CITY COURT, WARDS 9, 10 AND 11,
PARISH OF RAPIDES, NO. 6-0210
HONORABLE J. PHILLIP TERRELL, JR., CITY COURT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Jimmie C. Peters, Glenn B. Gremillion, and J. David Painter,
Judges.

REVERSED AND RENDERED.

Ian A. McDonald
Perret Doise
P.O. Drawer 3408
Lafayette, LA 70502-3408
Counsel for Defendants-Appellants:
Angelique Wilson and Progressive Security Insurance Company

Howard N. Nugent, Attorney at Law
P.O. Box 1309
Alexandria, LA 71301-1309
Counsel for Plaintiff-Appellee:
Eric Fontenot

PAINTER, Judge.

Defendants, Angelique Wilson (“Wilson”) and Progressive Security Insurance

Company (“Progressive”), appeal the trial court’s ruling finding Wilson fifty percent

at fault and awarding damages to Plaintiff, Eric Fontenot (“Fontenot”), for injuries

sustained in a motor vehicle accident. For the reasons that follow, we reverse the trial

court’s allocation of fault between the parties and find Wilson free from fault. We

find that Russell Thill (“Thill”) was 100 percent at fault in causing the subject

accident. Therefore, we render judgment in favor of Wilson and Progressive,

dismissing Fontenot’s claims against them with prejudice.

FACTUAL AND PROCEDURAL BACKGROUND

The accident at issue herein occurred on November 29, 2005. Fontenot was

a passenger in the back seat of a 1993 Jeep Cherokee being driven by Wilson. Wilson

was attempting to turn right on Louisiana Highway 28 East from Paper Mill Cut Off

Road. This “T” intersection is controlled by a stop sign on Paper Mill Cut Off Road.

Thill was driving a 2000 Dodge Ram truck behind Wilson’s vehicle. As Wilson

approached the intersection, she activated her right turn signal and stopped. Thill

also stopped. According to Thill and another witness, Matthew Deville, Wilson did

not stop at the stop sign but rolled forward closer to the outside lane of Highway 28

East. Wilson contends that after stopping, she rolled forward another two and half

feet to half a car length and then stopped again to get a better view of oncoming

traffic before entering the highway. She contends that she was driving less than five

miles per hour. In any event, it was at this point that the Wilson vehicle was rear-

ended by the Thill vehicle. Fontenot was taken to the emergency room at Rapides

Regional Medical Center by ambulance following the accident.

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Claiming injuries to his neck, low back, and left knee, Fontenot filed suit

against Wilson and her insurer, Progressive, as well as Thill and his insurer, State

Farm Mutual Automobile Insurance Company (“State Farm”). Thill and State Farm

settled with Fontenot prior to trial. The matter proceeded to bench trial against only

Wilson and Progressive on October 20, 2006. On December 15, 2006, the trial court

issued written reasons for judgment finding Wilson and Thill each to be fifty percent

at fault in causing the accident. The trial court awarded a total of $7,148.18 in

medical expenses and $20,000.00 in general damages to Fontenot, to be reduced by

the fifty percent of fault attributable to Thill. Judgment was signed to that effect,

casting Wilson and Progressive in judgment for $13,574.00. Progressive appealed,

asserting that Wilson should be found free from fault, that the amount of damages

was abusively high, and that it was cast in judgment in an amount in excess of its

policy limits. The parties agree that Progressive’s policy limit applicable to this case

is $10,000.00. Plaintiff does not dispute that this court should limit Progressive’s

liability to $10,000.00. However, for the reasons that follow, we find that the trial

court was manifestly erroneous in its allocation of fault, reverse the trial court’s

judgment, reallocate the fault to find Thill 100 percent at fault, and render judgment

in favor of Wilson and Progressive.

DISCUSSION

It is well settled that a trier of fact is vested with much discretion in its

allocation of fault and that its allocation of fault is subject to the manifest error or

clearly wrong standard of review. Duncan v. Kansas City So. Ry. Co., 00-66 (La.

10/30/00), 773 So.3d 670. The factors to be considered when reviewing an allocation

of fault were set forth by the Louisiana Supreme Court in Watson v. State Farm Fire

& Cas. Ins. Co., 469 So.2d 967, 974 (La.1985):

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(1) whether the conduct resulted from inadvertence or involved an
awareness of the 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. And, of course, as evidenced by concepts
such as last clear chance, the relationship between the fault/negligent
conduct and the harm to the plaintiff are considerations in determining
the relative fault of the parties.

As this court has recently stated:

These factors also guide an appellate court's determination as to
the highest or lowest percentage of fault that could reasonably be
assessed to each party. Clement [v. Frey, 95-1119 (La. 1/16/96)], 666
So.2d [607]. Thus, the Clement decision dictates that the allocation of
fault is not an exact science, nor is it the search for a precise ratio.
Rather, much like that of quantum assessment, allocation of fault is the
finding of an acceptable range and any allocation by the trier of fact
within that range cannot be disturbed under the manifest error standard
of review. Therefore, in order for this court to disturb the trial court's
allocation of fault, the defendants must show that, based on the evidence
in the record, no reasonable person could have allocated the fault in the
manner that the trial judge did in this case.

Williams v. Aymond, 05-1547, 05-148, p. 9, (La.App. 3 Cir. 12/6/06), 945 So.2d 823,

831, writs denied, 07-0005 (La. 3/9/07), 949 So.2d 442 and 07-0069 (La. 3/9/07), 949

So.2d 449.

Louisiana Revised Statutes 32:81(A) provides that “[t]he driver of a motor

vehicle shall not follow another vehicle more closely than is reasonable and prudent,

having due regard for the speed of such vehicle and the traffic upon and the condition

of the highway.” This creates a presumption that a following motorist in a rear-end

collision breached the duty not to follow more closely than is reasonably prudent and

is therefore negligent. Mart v. Hill, 505 So.2d 1120 (La.1987). The presumption can

be rebutted, however, upon proof that the following motorist had his vehicle under

control, closely observed the preceding vehicle, and followed at a safe distance under

the circumstance, or by showing that the driver of the preceding vehicle negligently

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created a hazard which the following motorist could not reasonably avoid. Boggs v.

Voss, 31,965 (La.App. 2 Cir. 6/16/99), 741 So.2d 139.

Guided by the above stated principles, we find that the trial court committed

manifest error in allocating fifty percent of the fault to Wilson in the subject accident.

The trial judge heard testimony both that Wilson stopped at the stop sign and then

rolled slightly forward to get a better view of oncoming traffic and that Wilson did

not stop at the stop sign but stopped somewhere past it, closer to the outside lane of

the highway. It is undisputed, however, that Wilson was stopped at the intersection.

Wilson denied having stopped suddenly. Thill testified that he saw Wilson accelerate

and thought she was turning and did not pay “anymore attention to her.” He looked

to his left, determined that traffic had cleared for his entrance to the highway, pulled

forward, and struck the Wilson vehicle.

Plaintiff cites Boggs, 741 So.2d at 141-142, wherein our colleagues in the

second circuit stated:

As Voss first observed Boggs, she accelerated up the entrance ramp and
appeared to be entering into an opening in the traffic. Boggs admitted
to increasing her speed as she attempted to merge into traffic and also
that, at one point, she thought there might be an opening in the traffic
but changed her mind “pretty much close to the end of the ramp” when
she didn't “feel like [she] could get into traffic.” Because Boggs
appeared to be entering traffic, Voss began to determine whether or not
he could enter the freeway, only then taking his eyes off of the Boggs
vehicle to look back over his shoulder for his entry opportunity. As he
accelerated to gain access to I-20, Boggs had either appreciably slowed
or stopped her vehicle as she second-guessed her own entry. From these
facts, a reasonable factfinder could have found that, although Voss was
at fault in being inattentive to the lead vehicle, he could not be solely
responsible because of Boggs's sudden, substantial, and last minute
decrease in speed or stop which presented a hazard that could not
reasonably be avoided under the circumstances.

However, we find the present case to be distinguishable from Boggs in that there was

no “sudden, substantial, [or] last minute decrease in speed” by Wilson that “presented

a hazard that could not be reasonably avoided under the circumstance.” Id. Thill’s

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own testimony indicated that once he started looking to the left, he did not look

forward again before moving his vehicle forward. This testimony indicated that Thill

did not closely observe Wilson’s vehicle. Further, Fontenot failed to show that

Wilson created any hazard which Thill could not reasonably avoid. Thus, Fontenot

failed to rebut the presumption established in La.R.S. 32:81(A). Accordingly, we find

Thill to be 100 percent at fault and to be the sole cause of the accident.

As we reverse the trial court’s allocation of any fault to Wilson, the issues of

damages and policy limits become moot.

DECREE

For the foregoing reasons, the judgment appealed from is reversed. We find

that Thill was 100 percent at fault and the sole cause of this accident. Therefore, we

render judgment in favor of Wilson and Progressive, dismissing Fontenot’s claims

against them with prejudice. Costs of this appeal are assessed to Plaintiff-Appellee,

Eric Fontenot.

REVERSED AND RENDERED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal. Rule 2-16.3.

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