Carol Ann St. Julian v. Harold Wiltz

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-323

CAROL ANN ST. JULIAN

VERSUS

HAROLD WILTZ, ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 105995-A
HONORABLE GERARD B. WATTIGNY, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Michael G. Sullivan, Elizabeth A. Pickett, and Billy Howard
Ezell, Judges.

MOTION TO STRIKE GRANTED.
JUDGMENT AFFIRMED.

Julian Louis Gibbens
Gibbens & Stevens
222 W. St. Peter St.
New Iberia, LA 70560
(318) 367-8451
Counsel for Defendants-Appellants:
SAIA Motor Freight Line, Inc.
Harold Wiltz
Discover Property & Casualty Ins. Co.

Randal Lee Menard
Attorney at Law
P. O. Box 80795
Lafayette, LA 70598
(337) 857-8881
Counsel for Plaintiff-Appellee:
Carol Ann St. Julian

PICKETT, Judge.

The defendants, Harold Wiltz, his employer, Saia Motor Freight Line, Inc.

(Saia Motor), and their insurer, Discovery Property and Casualty Insurance Co.

(Discovery) (collectively referred to as “Wiltz”), appeal the trial court’s judgment

finding Wiltz 100% liable in a vehicular collision and the amount of damages

awarded. The plaintiff, Carol St. Julian, has answered the appeal, seeking an increase

in the award of general damages and property damages.

STATEMENT OF THE CASE

The accident in this case occurred on East St. Peter Street in New Iberia,

Louisiana. At the point where the accident occurred, East St. Peter is a three-lane,

one-way road. St. Julian testified that as she drove her Toyota Camry in the far right

lane, the vehicle immediately ahead of her suddenly moved into the center lane of

traffic. Before she had an opportunity to stop, she ran into the back of a tractor-trailer

that was stopped in the far right lane. The tractor-trailer was owned by Saia Motor

and was being driven by Wiltz in the course and scope of his employment. He

testified that he had stopped or slowed down significantly in the far right lane and

engaged his caution lights in anticipation of making a left turn into a private drive

from the far right lane. St. Julian sustained physical injuries, lost wages, and damage

to her vehicle as a result of the accident.

St. Julian sued Wiltz, Saia Motor, and their insurer, Discovery, seeking

damages for medical injuries, property damages, and pain and suffering. Following

a bench trial, the trial court found Wiltz 100% liable for causing the accident. It

awarded medical damages of $6,330.84, lost wages of $276.75, property damage of

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$1,800.00, and general damages of $15,000.00. Wiltz appealed, and St. Julian has

answered the appeal.

ASSIGNMENTS OF ERROR

The defendants-appellants assert three assignments of error:

1. The trial court erred manifestly in finding that Harold J. Wiltz was
solely at fault in causing this accident; also, the trial court improperly
condoned the behavior of the plaintiff, Carol Ann St. Julian, and found
her free of fault.

2. The trial court was clearly wrong in rewarding plaintiff with $15,000.00
in general damages.

3. The trial court’s ruling is also plainly flawed by allotting to St. Julian an
additional $5,000.00 for medical expenses which had been paid to her
by her insurer, State Farm. Plaintiff subrogated to State Farm the sole
right to assert that claim when she was paid by State Farm.

Answering the appeal, the plaintiff asserts two assignments of error:

1. The trial court erred in that the evidence supported an award of
$30,000.00 in general damages but the plaintiff was awarded
$15,000.00.

2. The trial court erred in that the evidence supported an award of
$2,575.00 for property damage as prayed for by the plaintiff but the
plaintiff was awarded $1,800.00.

DISCUSSION

Supplemental Record

Initially we must address a matter of procedure raised by St. Julian. After this

matter was appealed and the record prepared, Wiltz made a motion in the trial court

to Substitute Correct Evidence Incorrectly Entered. In the motion, Wiltz alleged that

they introduced into the record the plaintiff’s answers to interrogatories, but they

were not included in the record on appeal. Instead, Wiltz’s responses to St. Julian’s

Requests for Production of Documents was incorrectly entered into the record as

Defendant’s Exhibit Two. The trial court granted the motion, and a supplemental

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record was filed with this court containing the answers to interrogatories. St. Julian

filed a response to the motion in this court alleging that the answers to the

interrogatories were not properly introduced in the trial court, thus the document

should not be made a part of the record.

Louisiana Code of Civil Procedure Article 2132 states:

A record on appeal which is incorrect or contains misstatements,
irregularities or informalities, or which omits a material part of the trial
record, may be corrected even after the record is transmitted to the
appellate court, by the parties by stipulation, by the trial court or by the
order of the appellate court. All other questions as to the content and
form of the record shall be presented to the appellate court.

Appellate courts have reviewed the trial court’s correction of a record by applying an

abuse of discretion standard. Diamond B Constr. Co., Inc. v. La. Dep’t Of Transp.

and Dev., 00-1583 (La.App. 3 Cir. 12/22/00), 780 So.2d 439, writ denied, 01-246

(La. 4/26/01), 790 So.2d 633.

It is clear from the transcript of the trial that Wiltz intended to introduce St.

Julian’s responses to Wiltz’s interrogatories. That document, however, was not made

a part of the record. Through some error, Wiltz’s responses to St. Julian’s request for

production of documents was placed in the record. There is no evidence that the trial

court considered the correct document in making its ruling, and in fact Wiltz contends

that the trial court made an incorrect ruling on the issue of the effect of State Farm’s

payment $5,000.00 of St. Julian’s medical expenses because of his failure to consider

the document in question. In the Second Amended Reasons for Judgment, the trial

court specifically noted that “[t]here was no evidence introduced at the trial of this

matter with regard to any payments made by State Farm Mutual Automobile

Insurance Company for payments of medical bills on behalf of plaintiff by anyone

other than plaintiff.”

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We find that St. Julian’s answers to interrogatories were not properly

introduced in the record during the trial of this matter. The trial court abused its

discretion in allowing Wiltz to supplement the record with evidence not submitted at

trial and not considered by the trial court. The supplemental record is therefore

stricken from the record on appeal and will not be considered in this appeal.

Liability

The trial court found that Wiltz was 100% liable for the accident. The supreme

court discussed the standard of review appropriate to civil cases in Foley v. Entergy

Louisiana, Inc., 06-983, pp. 9-10 (La. 11/29/06), 946 So.2d 144, 153-154:

[A] trial court’s factual findings will not be upset unless they are
manifestly erroneous or clearly wrong. Ferrell v. Fireman’s Fund
Insurance Co., 94-1252, pp. 3-4 (La.2/20/95), 650 So.2d 742, 745.
Under this rule, the issue to be resolved by a reviewing court is not
whether the trier of fact was right or wrong, but whether the fact finder’s
conclusion was a reasonable one. Stobart v. State, Department of
Transportation & Development, 617 So.2d 880, 882 (La.1993). If the
factual findings are reasonable in light of the record reviewed in its
entirety, a reviewing court may not reverse even though convinced that
had it been sitting as the trier of fact, it would have weighed the
evidence differently. Id. at 882-883.

When the findings are based on determinations regarding the
credibility of witnesses, the manifest error-clearly wrong standard
demands great deference to the findings of fact, for only the fact finder
is cognizant 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
v. ESCO, 549 So.2d 840, 844 (La.1989). Where documents or objective
evidence so contradict the witness’s story, or the story itself is so
internally inconsistent or implausible on its face that a reasonable fact
finder would not credit the witness’s story, a reviewing court may well
find manifest error even in a finding purportedly based upon a
credibility determination. Id. Where such factors are not present,
however, and a fact finder’s determination is based on its decision to
credit the testimony of two or more witnesses, that finding can virtually
never be manifestly erroneous or clearly wrong. Id. The rule that
questions of credibility are for the trier of fact applies equally to the
evaluation of expert testimony, including the evaluation and resolution
of conflicts in expert testimony. Lasyone v. Kansas City Southern
Railroad, 00-2628, p. 13 (La.4/3/01), 786 So.2d 682, 693.

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These standards for manifest error review are not new. These
standards are the guiding principles that aid our review of a trial court’s
factual determinations. A manifest error review is applicable to the
fact-driven determinations presented in this case, including the finding
of percentages of fault by the trier of fact. Clement v. Frey, 95-1119, p.
7 (La.1/16/96), 666 So.2d 607, 610.

Louisiana Revised Statutes 32:81(A) states, “The 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.” “Louisiana jurisprudence has established a presumption that when a

following vehicle rear-ends a vehicle in front of it, the following vehicle is presumed

at fault and must prove a lack of fault to avoid liability.” LeBlanc v. St. Landry Parish

Police Jury, 94-501, p. 6 (La.App. 3 Cir. 12/7/94), 647 So.2d 614, 617. “To

exculpate herself, the following motorist must prove that she kept her vehicle under

control, that she closely observed the preceding vehicle, that she followed at a safe

distance under the circumstances, or that the driver of the lead vehicle negligently

created a hazard which the following vehicle could not reasonably avoid.” Id.

Only St. Julian testified about how the accident happened. She was

proceeding on East St. Peter in the far right lane. The vehicle immediately in front

of her obstructed her view, so she could not see the Saia truck until right before she

hit it. She had been traveling behind the vehicle for several blocks. She knows that

at some point there was another vehicle behind the Saia truck that turned right into

a private drive before the accident. She did not see that vehicle until it turned. She

was going about forty miles per hour and was about a car length behind the vehicle

in front of her. Suddenly, the vehicle in front of her swerved into the center lane of

traffic. That is the first time she saw the Saia truck. It was stopped in the far right

lane and had no signals flashing. She could not go to the left to avert the truck

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because there was another vehicle in that lane, and she could not veer to the right

because there was a ditch.

Wiltz testified that he was stopped or nearly stopped in the far right lane. He

claimed he had his warning lights flashing. He admitted that he was waiting for

traffic to clear so that he could make a left turn from the far right lane into a narrow

private driveway. He knew that such a turn was illegal, but stated it was the only way

for him to get into the driveway.

The trial court found that St. Julian successfully rebutted the presumption that

she was at fault by proving that Wiltz created a hazard in that he was preparing to

make an illegal left turn in violation of La.R.S. 32:71(B) and he was impeding the

free use of the roadway in violation of La.R.S. 14:100.1.

We find that the evidence supports the finding of the trial court. The trial court

was not manifestly erroneous, and the finding of the trial court on this issue of

liability is affirmed.

General Damages

General damages are speculative in nature and, thus, are incapable
of being fixed with any mathematical certainty. Wainwright v. Fontenot,
00-492 (La.10/17/00), 774 So.2d 70. They include pain and suffering,
physical impairment and disability, and loss of enjoyment of life. Id. As
they are speculative, a trial court’s award of such damages is reviewed
in light of the standard set forth in Youn v. Maritime Overseas Corp.,
623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059,
127 L.Ed.2d 379 (1994). First, we determine if the trial court’s award
for the particular injury and its effect under the particular circumstances
on this plaintiff is a clear abuse of the trial court’s “much discretion.”
Id. at 1260. “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 reduce the
award.” Id. at 1261.

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Bennet v. City of New Iberia, 08-1369, pp. 7-8 (La.App. 3 Cir. 4/1/09), 7 So.3d 822,

827-28.

Both parties argue that the general damages award of $15,000.00 should be

reversed. The trial court found that the evidence showed that St. Julian suffered an

injury to her ribs and shoulder. While she later complained of lower back pain, the

trial court found the back pain was not a result of the accident. She missed one week

of work. Doctors had cleared her to return to regular activities within eight months

of the accident. At the time of trial three years after the accident, she still complained

of some shoulder pain.

We find no abuse of the trial court’s great discretion in awarding general

damages of $15,000.00. Wiltz’s second assignment of error and St. Julian’s first

assignment of error lack merit.

Medical Expenses

Wiltz alleges in his third assignment of error that the trial court erred in failing

to reduce the amount of medical expenses awarded by $5,000.00, the amount paid by

State Farm pursuant to a policy of insurance issued to St. Julian. Wiltz correctly

argues that the collateral source rule does not apply when the insurance policy which

paid part of the debt owed by the tortfeasor includes a subrogation clause. See Great

West Cas. Co. v. State ex rel. Dep’t of Transp. and Dev., 06-1776 (La.App. 1 Cir.

3/28/07), 960 So.2d 973, writ denied, 07-1227 (La. 9/14/07), 963 So.2d 1005. The

parties stipulated at trial that the State Farm policy included a subrogation clause.

The trial court found that there was no evidence that State Farm paid any of the bills

of St. Julian. We agree. The trial court record does not contain proof that State Farm

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paid any of St. Julian’s medical bills pursuant to their insurance policy. The trial

court’s judgment is affirmed.

Property Damage

In her second assignment of error, St. Julian argues the trial court erred in

awarding $1,800.00 for the damage to her vehicle rather than $2,575.00. The

evidence supports a finding that the vehicle was totally destroyed in the accident.

There was no appraisal or estimate of repairs introduced. The only evidence in the

record are pictures of the vehicle before and after the wreck, a printout from the

National Automobile Dealers Association website indicating a range of values for a

1990 Toyota Camry LE, and St. Julian’s testimony that the car was in good condition

prior to the accident. The trial court’s award of $1,800.00 was based on the average

retail price as of July 11, 2005. Given the meager evidence which was presented to

support this element of damages, we cannot find that the trial court committed

manifest error in its award.

CONCLUSION

The trial court’s order supplementing the record is reversed, and the

supplemental record is stricken. In all other respects, the judgment of the trial court

is affirmed. Costs of this appeal are cast equally between the Wiltz defendants and

St. Julian.

MOTION TO STRIKE GRANTED.

JUDGMENT AFFIRMED.

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