Tredise M. Benjamin v. Derrick Lambing

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-649

TREDISE M. BENJAMIN

VERSUS

DERRICK LAMBING, ET AL.

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2010-4687-A
HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Oswald A. Decuir, Elizabeth A. Pickett, and Shannon J.
Gremillion, Judges.

REVERSED.

James Edward Diaz, Jr.
John E. Ortego & Associates
4023 Ambassador Caffery, Suite 100
Lafayette, LA 70503
(337) 988-7240
Counsel for Defendants/Appellants:
State Farm Mutual Automobile Insurance Company
(as liability insurer of) and
Derrick Lambing

John T. Bennett
John T. Bennett Law Offices
P.O. Box 275
Marksville, LA 71351
(318) 253-4631
Counsel for Plaintiff/Appellee:
Tredise M. Benjamin

Larry A. Stewart
Stafford, Stewart & Potter
P.O. Box 1711
Alexandria, LA 71301
(318) 487-4910
Counsel for Defendant/Appellant:
State Farm Mutual Automobile Insurance Company (as uninsured motorist
insurer of Tredise Benjamin)

GREMILLION, Judge.

Derrick Lambing, his automobile liability insurer, State Farm Mutual

Automobile Insurance Company, and State Farm as the plaintiff’s uninsured

motorist carrier appeal the trial court’s judgment in favor of Tredise Benjamin,

which found Lambing 100% at fault for a motor vehicle accident that occurred on

December 14, 2009, in Marksville, Louisiana. That judgment awarded Benjamin

$21,926.28 plus judicial interest and all costs of court. For the reasons that follow,

we reverse.

FACTS

December 14, 2009 was a rainy day in Marksville. Shortly after 5:00 p.m.,

Lambing, in his 1999 Toyota pickup, was driving north on Tunica Drive. As he

approached the intersection of Tunica and Acton, one corner of which is occupied

by a Shell convenience store, Lambing’s truck was in the inside lane. Another

pickup occupied the outside lane. The intersection of Tunica and Acton is

controlled by a traffic light, which Lambing testified was green for north- and

south-bound Tunica drive traffic. He entered the intersection at about 35 miles per

hour. Lambing testified that he noticed a vehicle appear in his path as it turned left

onto Tunica from the Shell parking lot. Lambing hit his brakes but was unable to

avoid hitting the car, driven by Benjamin. At the point of collision, according to

Lambing, Benjamin’s vehicle had not straightened up.

Benjamin testified that she was attempting to exit the Shell parking lot. She

described traffic as heavy, and that cars were stopped in the south-bound lanes of

Tunica Drive. Drivers waved her into traffic. According to Benjamin, she pulled

into the north-bound inside lane. As she pulled into traffic, Benjamin looked back

over her right shoulder and saw no vehicles approaching her from behind. She

traveled about 50 feet, beyond the Shell station parking lot, before she was struck

from behind by Lambing. “I felt this big bump and I got hit directly from behind.”

Also according to Benjamin, by the time she had traveled this short distance she

had reached a speed of between 25 and 30 miles per hour.

Lambing’s girlfriend, Shawn Smith, occupied the vehicle immediately

behind his. She testified that Benjamin pulled across the south-bound lanes and

looked as though she would hesitate, but instead pulled directly into Lambing’s

way. When the two vehicles collided, the force knocked Lambing’s truck to the

right. Smith thought Benjamin’s vehicle was going slow enough that she could

have stopped before entering Lambing’s lane.

Lambing testified that he stopped his vehicle and exited it. He approached

Benjamin and asked how she was doing. He testified that Benjamin told him, “It

ain’t my fault. They was waving me through.” He also testified that she stated

that she knew he could not have seen her. Benjamin, on the other hand, testified

that she remained in her vehicle after the collision. Lambing approached her and

apologized to her, claiming that he simply did not see her.

Officer Trent Young of the Marksville Police Department testified as the

investigating officer. When he arrived, he noted the positions of the vehicles, both

fully within the inside, north-bound lane. Officer Young took photographs of the

scene and the damage to the vehicles. He testified that Lambing stated that he had

stopped at the red light and after it turned green he proceeded north when

Benjamin pulled out in front of him. Lambing admitted hitting Benjamin from

behind. Officer Young noted damage to the rear of Benjamin’s vehicle from the

center point to the right rear corner. Officer Young testified that there was damage

to the center rear of Benjamin’s vehicle because Benjamin was unable to open the

trunk to retrieve a child safety seat. The damage to the front of Lambing’s truck

extended from the center to the front left corner, based upon the fact that the

bumper sagged slightly from the left corner toward the middle.

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The photos taken by Officer Young were introduced at trial. Two depict the

final positions of the vehicles after impact. Two depict the damage to Benjamin’s

car and place the impact at the extreme right rear corner of the bumper and left rear

fender. We further note that, while Officer Young indicated that there was damage

to the center rear of Benjamin’s vehicle because she was unable to open her trunk,

the trunk lid is quite definitely buckled from the side. There is no damage to the

center rear of Benjamin’s car. The damage to Lambing’s truck is confined to the

corner turning signal and left front fender The bumper sags only at the left front

corner. The photographs quite vividly contradict Officer Young’s testimony.

Officer Young admitted that he had indicated on his accident report that there was

damage to the rear driver’s side of Benjamin’s car, while there in fact was none.

In addition to the two radically contrasting accounts of the actual collision,

there was a disagreement over whether Lambing had a passenger in his truck.

Benjamin testified that as she sat in her car, she glanced in her rearview mirror and

saw a woman and a boy in the truck. Lambing testified that he was being followed

by his girlfriend, Ms. Smith, who had her son, Michael, with her. Officer Young

testified that Lambing told him Michael was a passenger in the truck. Lambing

denied this.

The trial court also heard the testimony of Vernon Tekel, Jr., a traffic

engineer and accident reconstruction expert. Initially, Tekel had been provided

with the following assumptions: that Lambing had stopped at the traffic signal at

Tunica and Acton, and proceeded through after the light turned green; that

Benjamin had entered the Shell station parking lot at its northern-most point; that

she had exited at the sourthern-most exit after being allowed into traffic by

vehicles in the south-bound lanes; and, that the collision had occurred at a point on

Tunica Drive no further than the property line of the Shell station. The testimony

he heard at trial differed in several respects. First, Lambing testified at trial that

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the light was green and he was traveling at 35 miles per hour. Benjamin and

Officer Young testified that the point of impact was beyond the area of the Shell

station lot, whereas Officer Young’s report indicated that the impact occurred

between the southern and northern exits of the station.

Tekel opined that if Benjamin had indeed pulled out from the southern exit

and traveled to the edge of the Shell station lot, assuming she had not accelerated

excessively, when she entered the north-bound lane Lambing would have been 500

feet away. He found this scenario curious based upon the property damage

depicted in the photographs, which depicted damage only to the right rear corner of

Benjamin’s car and only the left front corner of Lambing’s truck. For this to

happen, assuming Benjamin was completely within the inside north-bound lane,

Lambing would have had to encroach into the outside north-bound lane. But, had

the impact occurred closer to the southern exit of the lot, Lambing would have

been in the intersection as Benjamin pulled out. Under that scenario, the accident

more probably than not occurred as Benjamin was still executing her turn.

Lambing would not have had a reasonable opportunity to avoid the collision. The

final resting points of the vehicles wholly within the inside lane of Tunica Drive,

coupled with the points of impact on the vehicles, were more consistent with

Lambing’s account of the accident than Benjamin’s.

The trial court rendered oral reasons for judgment. The trial court found

Benjamin’s testimony consistent with what she related to emergency room

personnel, and therefore credible. It reasoned that Smith’s testimony was not

credible because she testified in too great detail about what she saw. The trial

court accepted Officer Young’s testimony about the damage that he saw to the

vehicle, which indicated to the trial court that the accident was more probably than

not a simply rear impact instead of a corner-to-corner impact. The trial court found

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that Benjamin had established control of the north-bound lane. Ten percent fault

was allocated to Benjamin and 90 percent to Lambing.

ASSIGNMENTS OF ERROR

Lambing and State Farm, as his liability insurer, assign as error the trial’s

allocation of fault and its application of the doctrine of preemption. State Farm, as

Benjamin’s uninsured motorist carrier, asserts that the trial court’s judgment

should be reviewed de novo and that the trial court’s finding of fault on Lambing

was erroneous in the face of the physical evidence and the uncontradicted expert

testimony of Tekel.

ANALYSIS

A trial court’s findings or allocation of fault are reviewed under the manifest

error standard. For a full discussion of the manifest error standard, see Stobart v.

State through Dep't of Transp. & Dev., 617 So.2d 880 (La.1993). Unless we find

that the record contains no reasonable support for the trial court’s findings, we are

required to affirm. Id.

The physical evidence in the form of the photographs was afforded almost

no weight by the trial court. As Tekel testified, the only way this accident could

have occurred, assuming Benjamin had gained control of the inside lane of traffic,

was for Lambing to have crossed from the outside lane to the inside, given the

points of impact. Courts of appeal bear a constitutional obligation to review facts

and law of decisions below. La.Const. art. V, §10(B). As we have previously

stated, “[I]t is our duty to reverse a decision of the trial judge if we find manifest

error. Such judgment of the trial court should be reversed when it is against the

clear weight and physical evidence.” Webb v. Southern Pacific R. Co., 617 So.2d

618 (La.App. 3 Cir.), writ denied, 625 So.2d 180 (1993).

Further, the trial court afforded no weight to Tekel’s testimony, which was

uncontradicted. Absent circumstances in the record that cast suspicion on the

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reliability of testimony and an expression of sound reasons for rejecting it,

uncontradicted testimony should be taken as true to establish a fact for which it is

offered. Jackson v. Capitol City Health Ctr., 04-2671 (La.App. 1 Cir. 12/22/05),

928 So.2d 129. And although even uncontradicted expert testimony is not binding

on the trial court, it may not be lightly disregarded. Sanders v. Wysocki, 92-1190

(La.App. 4 Cir. 1/27/94), 631 So.2d 1330, writ denied, 94-0506 (La. 4/22/94), 637

So.2d 156; Godfrey v. City of Baton Rouge, 10-2333 (La.App. 1 Cir. 6/10/11)

(unreported).

CONCLUSION

We find manifest error in the trial court’s factual findings. The trial court

disregarded the physical evidence and ignored uncontradicted expert testimony that

demonstrated that Lambing’s version of the accident was the only credible and

creditable version. The judgment of the trial court is reversed. All costs of the

appeal are taxed to plaintiff/appellee, Tredise Benjamin.

REVERSED.

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