Cherlyn Forbes v. Allstate Ins. Co.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-240

CHERLYN FORBES, ET AL.

VERSUS

ALLSTATE INSURANCE COMPANY, ET AL.

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 12-C-1516-D
HONORABLE DONALD W. HEBERT, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Elizabeth A. Pickett,
and Shannon J. Gremillion, Judges.

AFFIRMED.

Sherman Stanford
Attorney at Law
P. O. Box 1237
Opelousas, LA 70571
(337) 948-4113
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Cherlyn Forbes
Shamica Sostand

Dana G. Hall
Law Offices of Harold G. Toscano
400 E. Kaliste Saloom, Suite 8300
Lafayette, LA 70508
(337) 291-0108
COUNSEL FOR DEFENDANTS/APPELLEES:
Allstate Insurance Company
Courtney McCarthy

PICKETT, Judge.

The plaintiffs appeal the trial court’s judgment denying their claims that the

defendant driver was at fault in the accident that caused their injuries. For the

reasons below, we affirm the judgment.

FACTS

On September 9, 2011, Cherlyn Forbes was stopped at a red light in

Opelousas when a vehicle driven by Courtney McCarthy collided with her vehicle.

Immediately before that collision, Ms. McCarthy’s vehicle had been rear-ended by

a vehicle driven by Latonya Pickens. Ms. Pickens fled the scene of the accident in

her vehicle but was apprehended shortly thereafter.

Ms. Forbes and her granddaughter Cherkaylyn Brooks, who was a passenger

in her vehicle, were injured in the accident. Ms. Forbes and Cherkaylyn’s mother,1

Shamica Sostand, filed suit against Ms. McCarthy and her insurer, Allstate

Insurance Company, to recover damages for the injuries Ms. Forbes and

Cherkaylyn suffered in the accident.

Ms. Forbes testified that before the accident occurred she was stopped for a

red light in the left lane of North Main Street at its intersection with Natchez Street

headed north and that Ms. McCarthy was stopped in the right lane of North Main

Street headed south. After she saw Ms. Pickens hit Ms. McCarthy’s vehicle, Ms.

Forbes redirected her eyes to the traffic signal and was ready to proceed forward

with the green light. At that time, she saw Ms. McCarthy’s vehicle coming toward

her and Ms. McCarthy waving for her to move out of her way. Ms. Forbes

explained that she “backed up as far as [she] could,” stopped, and put her car in

park. When cross-examined, however, Ms. Forbes admitted that no cars were

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Ms. Sostand filed suit on behalf of Cherkaylyn, a minor, as her natural mother and tutrix.

behind her when she backed up. She stated that she backed up far enough for

Ms. McCarthy to pass without hitting her vehicle, but Ms. McCarthy still hit her.

The investigating police officer testified that Ms. McCarthy told him that she

turned her steering wheel to the left after the impact of the Yukon. In his narrative,

he stated that Ms. McCarthy related to him: “Upon impact her vehicle was thrust

forward. [She] attempted to steer her vehicle off of the roadway.” When asked

what made her vehicle go left, Ms. McCarthy testified, however, that the force of

the impact from the Yukon “threw [her] into the left lane.” She further testified

that it happened so quickly that she was not able to turn her steering wheel back to

the right. Ms. McCarthy denied that she waved to Ms. Forbes to move her vehicle.

After a trial on the merits, the trial court determined that Ms. Pickens was

the sole cause of the accident and rendered judgment in favor of Ms. McCarthy and

Allstate denying Ms. Forbes’ and Ms. Sostand’s claims. This appeal followed. On

appeal, Ms. Forbes and Ms. Sostand assert the trial court erred in not finding that

Ms. McCarthy was at fault in the collision.

DISCUSSION

Ms. Forbes and Ms. Sostand assign two errors with the trial court’s

judgment. First, they complain the trial court’s conclusion that the impact of

Ms. Pickens’ vehicle on Ms. McCarthy’s vehicle was sufficient to thrust her

vehicle into Ms. Forbes’ vehicle is not substantiated by the record. Second, they

argue the trial court’s determination that the evidence did not establish

Ms. McCarthy turned her steering wheel to the left in the direction of Ms. Forbes’

vehicle is contrary to the evidence. Therefore, they contend the trial court’s failure

to assess any fault to Ms. McCarthy must be vacated and Ms. McCarthy should be

assessed some fault.

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To prevail on their claims, Ms. Forbes and Ms. Sostand had to prove that

Ms. McCarthy was at fault in causing the accident, using the duty-risk analysis.

Joseph v. Dickerson, 99-1046, 99-1188 (La. 1/19/00), 754 So.2d 912. The duty-

risk analysis is a five-step process that requires a party asserting the fault of

another caused him damages to prove, in part, that the party’s conduct was a cause-

in-fact of the injuries at issue. Id. Plaintiffs who fail to prove this element, or any

of the four other elements, have not satisfied their burden of proving their claims.

Id.

The trial court’s determination that Ms. McCarthy was not at fault is a fact

determination reviewed under the manifest error-clearly wrong standard of review.

Rando v. Anco Insulations, Inc., 08-1163, 08-1169 (La. 5/22/09), 16 So.3d 1065.

Under this standard, the trial court’s findings of fact cannot be disturbed unless a

factual, reasonable basis does not exist in the record and the finding is clearly

wrong or manifestly erroneous. Id.

The trial court completely discounted Ms. Forbes’ explanation, stating it did

not believe she had the presence of mind to react as she described above and gave

“little credibility, if any” to her testimony as a whole. The trial court also

discounted Ms. Forbes’ credibility because she testified that Ms. McCarthy was

stopped in the right lane before the accident occurred, but Ms. McCarthy and the

investigating police officer testified that Ms. McCarthy was stopped in the left lane

before the accident.

The trial court rejected Ms. Forbes and Ms. Sostand’s contention that the

damage scale utilized by the police officer in his investigation established the force

of impact the Yukon driven by Ms. Pickens had on Ms. McCarthy’s car was

minimal; therefore, Ms. McCarthy had to be assessed some fault. Ms. Forbes and

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Ms. Sostand acknowledge that collapsible bumpers are designed to crumple to

absorb as much momentum as possible to reduce any impact thereon being

transferred to the vehicle or its occupants. They argue, however, that only slight

damage like the damage to Ms. McCarthy’s collapsible bumper cannot “transfer

the momentum required to impel a vehicle at such a high rate of speed so as to

render the driver helpless to apply the brakes or steer the vehicle.” They further

argue that the immense force required to affect Ms. McCarthy and her vehicle as

she claims would have destroyed the bumper of her vehicle.

We have reviewed the evidence and do not find the trial court’s conclusion

that Ms. Forbes and Ms. Sostand did not prove Ms. McCarthy was at fault in the

accident is unreasonable. Ms. McCarthy’s testimony that the Yukon hit her so

hard she was propelled into Ms. Forbes’ seemingly conflicts with the investigating

police officer’s testimony that there was minor damage to her vehicle. The police

officer’s testimony alone is not concrete evidence of the impact the Yukon had on

Ms. McCarthy’s vehicle and whether it would or would not have caused

Ms. McCarthy’s vehicle to thrust forward as she testified it did. A repair estimate

or scientific data showing the force required to cause similar damage to a bumper

would be such concrete evidence.

The evidence provides a reasonable basis for the trial court’s assessment of

Ms. Forbes’ credibility and finding that Ms. Forbes and Ms. Sostand did not prove

that Ms. McCarthy was at fault in causing their damages. Accordingly, the trial

court’s conclusions are not manifestly erroneous and must be affirmed.

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DISPOSITION

The judgment of the trial court is affirmed. All costs are assessed to the

plaintiffs.

AFFIRMED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.
RULE 2—16.3, UNIFORM RULES—COURTS OF APPEAL.

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