Shaterika Ashley v. Antonio Strong

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-336

SHATERIKA ASHLEY, ET AL.

VERSUS

ANTONIO STRONG, ET AL.

**********
APPEAL FROM THE
ALEXANDRIA CITY COURT, NO. 107,884
PARISH OF RAPIDES
HONORABLE RICHARD E. STARLING, JR., CITY COURT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

**********

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

AFFIRMED AS AMENDED.

Malcolm X. Larvadain
Attorney at Law
626 Eighth Street
Alexandria, LA 71301
Counsel for Plaintiffs/Appellees:
Shaterika Ashley
Latonya Bowers
Audrey Ashley

Dana C. Graham
Borne & Wilkes, L.L.P.
200 West Congress Street Suite 1000
Lafayette, LA 70502
Counsel for Defendants/Appellants:
Safeway Insurance Company
Antonio Strong

Pickett, J.

The defendants, Safeway Insurance Company of Louisiana (hereinafter

Safeway) and Antonio Strong, Safeway’s insured, appeal a judgment of the trial court

in favor of the plaintiffs, Audrey Ashley, Shaterika Ashley, and Latonya Bowers. We

amend the judgment of the trial court and affirm as amended.

FACTS

This case arises out of a two vehicle accident which took place at

approximately 10:15 p.m., in the parking lot of King City Discount Liquor and

Tobacco Store, 3007 Lee Street Alexandria, Louisiana. The defendant, Antonio

Strong, the driver of vehicle number one, and his passenger, Corey Strong, gave one

account of the accident, while Shaterika Ashley, the driver of vehicle number two,

and her passenger, Latonya Bowers, gave another version of what happened. An

independent witness, Pauline Smith, who witnessed the accident, gave testimony

supporting the version of the accident given by Ashley and Bowers. The Strongs

testified that they had completed their business at the store, had backed out of their

parking space and were stopped, waiting to turn out of the King City parking lot onto

Lee Street, when Ms. Ashley side-swiped their vehicle while attempting to back out

of her parking space.

Ms. Ashley and Ms. Bowers testified that as Ms. Ashley started to back out of

her parking space, Mr. Strong, who had been waiting to turn out of the King City

parking lot onto Lee Street, backed up into the Ashley vehicle. This version of the

accident was corroborated by Ms. Smith.

1

The trial judge found Antonio Strong 100% at fault and awarded property

damages to Audrey Ashley, the owner of vehicle two, and medical and general

damages to Shaterika Ashley and her passenger, Latonya Bowers.

Antonio Strong and his insurer, Safeway, appeal the judgment of the trial court

presenting three issues for review: 1) whether the trial court erred in assessing 100%

of the fault in the accident to Antonio Strong; 2) whether the trial court erred in

awarding Audrey Ashley $1,217.26 in property damages; and 3) whether the trial

court erred in awarding Audrey Ashley $200.00 for loss of use of her vehicle.

LAW AND DISCUSSION

The first issue presented for review, whether the trial court erred in assessing

100% of the fault in the accident to Antonio Strong, is a factual determination by the

trial court requiring that we apply the manifest error standard of review. In Poole v.

Poole, 08-1325, pp. 4-5 (La.App. 3 Cir. 4/1/09), 7 So.3d 806, 810, this court stated

the following:

[A] factual determination of the trial court that is subject to the manifest
error/clearly wrong standard of review. Stobart v. State, Through Dep’t.
of Transp. & Dev., 617 So.2d 880 (La.1993).

In order to reverse a fact finder’s determination of fact, an
appellate court must review the record in its entirety and meet the
following two-part test: (1) find that a reasonable factual basis does not
exist for the finding, and (2) further determine that the record establishes
that the fact finder is clearly wrong or manifestly erroneous. Id. Where
there is conflict in the testimony presented at trial, the trial court’s
reasonable evaluations of credibility and reasonable inferences of fact
should not be disturbed upon review. Rosell v. ESCO, 549 So.2d 840
(La.1989). A trial court’s credibility determinations are subject to the
strictest deference, and the manifest error or clearly wrong standard
demands great deference for the trial court’s findings. Theriot v.
Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305. “[T]he issue to be
resolved by a reviewing court is not whether the trier of fact was right
or wrong, but whether the factfinder’s conclusion was a reasonable
one.” Stobart, 617 So.2d at 882. Thus, if the trial court’s decision is
reasonable in light of the record reviewed in its entirety, the court of

2

appeal may not reverse even though the appellate court would have
weighed the evidence differently. Rosell, 549 So.2d 840.

Further, in Henderson v. Nissan Motor Corp., 03-606, p. 10 (La. 2/6/04), 869

So.2d 62, 69, our supreme court reminded us of the following:

The manifest error-clearly wrong standard of review is based
upon the recognition of “the trial court’s better capacity to evaluate live
witnesses, as compared with the appellate court’s access only to a cold
record, but also upon the proper allocation of trial and appellate
functions between the respective courts.” [Stobart v. State, Through
Dep’t. of Transp. & Dev., 617 So.2d 880, 883 (La.1993)]. See also
Canter v. Koehring Co., 283 So.2d 716 (La.1973). Accordingly, where
two permissible views of the evidence exist, the fact-finder’s choice
between them cannot be manifestly erroneous or clearly wrong. Id.

In this case the Strong brothers told one version of the accident, while Mss.

Ashley and Bowers told quite a different version. Additionally, there are two other

factors to be considered—the testimony of Ms. Smith, which supports that of Mss.

Ashley and Bowers and the fact that Antonio Strong failed to call Alton Jones, whom

he claimed would testify in his favor.

In its reasons for judgment, the trial court noted the inconsistencies in the

testimony of both Antonio and Corey Strong and the fact that both had been

incarcerated for drug charges. The court also noted that the testimony of the only

independent witness, Pauline Smith, supported that of Mss. Ashley and Bowers.

Considering the record as a whole, we cannot say that the trial court’s

allocation of 100% of the fault in the accident is manifestly erroneous or clearly

wrong.

Issue number two, whether the trial court erred in awarding Audrey Ashley

$1,217.26 in property damages, is not disputed. It appears that in drafting the

judgment, the trial court reversed two of the digits in the award. The proper award

should have been $1,127.26. The appellee does not contest this point. Accordingly,

3

we amend the judgment to award Audrey Ashley $1,127.26 in property damages, the

amount of the Safeway estimate.

The final issue is whether the trial court erred in awarding Audrey Ashley

$200.00 for loss-of-use of her vehicle. Appellants argue that because Audrey Ashley

did not testify that she had her car repaired, she should not recover for the loss-of- use

of the vehicle. It is well settled that loss-of-use is an element of damages. In Chriss

v. Manchester Insurance & Indemnity Co., 308 So.2d 803, 805-06(La.App. 4 Cir.

1975)(emphasis ours), our colleagues of the fourth circuit stated:

In Reisz v. Kansas City So. R. Co., 148 La. 929, 88 So. 120
(1921) the owner of a building used for rental purposes was awarded a
sum for loss of its use, equal to the amount of rental lost. Furthermore,
damages for loss of use are recoverable whether the property is used for
business or personal purposes. Nolan v. Liuzza, 301 So.2d 892
(La.App.4th Cir. 1974), involving loss of use of a personal automobile.

The normal measure of damages for loss of use is the rental value
of similar property and perhaps necessary incidental expenses. It is not
necessary, however, that a plaintiff actually rent substitute property in
order to recover damages due for loss of use. Rental (which
accomplishes the substitution of the use of similar property for that of
the injured property) does not determine entitlement to damages, but
only provides a fair measure of damages in appropriate cases.

Additionally, in Neloms v. Empire & Marine Insurance Co., 37,786, pp. 12-13

(La.App. 2 Cir. 10/16/03), 859 So.2d 225, 233 (citations omitted), the second circuit

stated “[t]he measure of loss-of-use damages is normally the cost of renting a

substitute vehicle. . . . This award, however, need not be restricted to rental. The trial

court is given a great deal of discretion to determine the damages awarded for loss of

use of a vehicle. . . .”

In the case sub judice, the estimate to repair Audrey Ashley’s vehicle submitted

by Safeway and accepted by both the trial court and this court shows that the repairs

to Mrs. Ashley’s car will take approximately three days. Considering this and the

4

applicable jurisprudence, we cannot say that the award of $200.00 for loss-of- use of

her vehicle is either erroneous or excessive.

Accordingly, for the reasons stated above, the judgment of the trial court is

amended to reduce the property damage award to Audrey Ashley from $1,217.26 to

$1,127.26; in all other respects the judgment is affirmed. The defendants/appellants,

Safeway Insurance Company of Louisiana and Antonio Strong are cast with all costs

of this appeal.

AFFIRMED AS AMENDED.

5