Mark Sharbeno v. Allstate Ins. Co.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

14-670

MARK SHARBENO, ET AL.

VERSUS

ALLSTATE INSURANCE COMPANY,
ET AL.

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT,
PARISH OF VERNON, DOCKET NO. 80,809, DIVISION B
HONORABLE JOHN C. FORD, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, and James T. Genovese,
Judges.

AFFIRMED.

Holli K. Yandle
The Dill Firm, APLC
825 Lafayette Street
Post Office Box 3324
Lafayette, Louisiana 70502-3324
(337) 261-1408, Ext. 216
COUNSEL FOR DEFENDANT/APPELLANT:
Safeway Insurance Company of Louisiana

Barry M. Barnett
Lacroix, Levy and Barnett
Post Office Box 1105
1101 Bolton Avenue
Alexandria, Louisiana 71309
(318) 443-7615
COUNSEL FOR PLAINTIFF/APPELLEE:
Brandy Sharbeno

GENOVESE, Judge.

In this personal injury case involving an underinsured motorist (UM) claim,

Defendant, Safeway Insurance Company of Louisiana (Safeway), appeals the

judgment of the trial court in favor of Plaintiff, Brandy Sharbeno.1 For the

following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The instant litigation arises out of a single-vehicle accident which occurred

in the early morning hours of January 19, 2008, in Vernon Parish, Louisiana.

Occupants in the vehicle at the time of the crash were Joseph W. Brittain, nineteen

years of age, and Brandy Sharbeno, fourteen years of age. There is considerable

dispute concerning the basic facts of the accident, particularly who was operating

the vehicle. What is known is that Ms. Sharbeno and Mr. Brittain were occupants

in a 1999 Chevrolet Camaro owned by Mr. Brittain when it crashed. Ms. Sharbeno

was injured in the accident, and Mr. Brittain was killed.

Asserting that Mr. Brittain’s negligence was the cause of the accident and

his minor daughter’s resulting injuries, Mark Sharbeno, individually, and on behalf

of his minor daughter, Brandy, filed suit against Allstate Insurance Company,

Mr. Brittain’s automobile liability insurance carrier; Safeway, his UM insurance

carrier; Misty Brittain; and John Thomas Brittain, as administrator of the estate of

his minor child, Kimberly Brittain.2 In its answer, Safeway alleged that

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When this lawsuit was filed, Ms. Sharbeno was a minor; therefore, her father, Mark
Sharbeno, filed suit on her behalf. Ms. Sharbeno has reached the age of majority and, thus, the
trial court lists Ms. Sharbeno as Plaintiff in whose favor it granted judgment.
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Misty and Kimberly Brittain were heirs to the estate of their brother, Joseph W. Brittain.

Ms. Sharbeno was the driver of the Camaro at the time of the accident and was not

entitled to recover under Safeway’s UM policy.3

After a bench trial and taking the matter under advisement, the trial court

issued Written Reasons for Judgment rejecting Safeway’s allegations and ruled in

favor of Ms. Sharbeno. The trial court labeled Safeway’s evidence

“circumstantial” and “suspect”; whereas, it found Ms. Sharbeno’s “testimony that

she was a guest passenger in the vehicle at the time of the accident to be credible.”

After the signing of a formal judgment in favor of Ms. Sharbeno, Safeway

perfected a suspensive appeal.

ASSIGNMENTS OF ERROR

On appeal, Safeway presents the following assignments of error:

1. The trial court committed manifest error when it failed to accept
the uncontradicted testimony of an expert in accident
reconstruction where there was no sound reason for rejecting
the testimony and when the testimony was corroborated by
other, objective evidence.

2. The trial court committed manifest error when it accepted as
credible the testimony of [Ms. Sharbeno] when her testimony
was directly contradicted by other, objective evidence.

LAW AND DISCUSSION

Whether Ms. Sharbeno was the driver of the Camaro at the time of the

accident is a factual determination requiring the application of the manifest error

standard of review. In Purvis v. Grant Parish School Board, 13-1424, p. 4

(La. 2/14/14), 144 So.3d 922, 926, our supreme court set forth the applicable

appellate standard of review as follows:

In Stobart v. State, through DOTD, 617 So.2d 880 (La.1993), this
court set forth a two-part test for the reversal of the fact-finder’s
determinations:

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Prior to trial, Ms. Sharbeno settled her claims against all defendants except Safeway.

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1) The appellate court must find from the record that a
reasonable factual basis does not exist for the finding of
the trial court, and

2) the appellate court must further determine that the
record establishes that the finding is clearly wrong
(manifestly erroneous).

This test dictates that a reviewing court must do more than
simply review the record for some evidence that may controvert the
trial court ruling. Rather, it requires a review of the entire record to
determine whether manifest error has occurred. Thus, the issue before
the court of appeal is not whether the trier of fact was right or wrong,
but whether the fact-finder’s conclusion was a reasonable one.
London Towne Condominium Homeowner’s Association v. London
Towne Company, 06-401 (La. 10/17/06), 939 So.2d 1227. Where the
fact-finder’s determination is based on its decision to credit the
testimony of one or more witnesses, that finding can virtually never be
manifestly erroneous. Rosell v. ESCO, 549 So.2d 840 (La.1989).

In the instant case, the trial court was faced with staunchly conflicting

testimony in its effort to determine who was driving the vehicle when the accident

occurred. The testimony of the sole survivor, whose personal injury claim is at

issue, was juxtaposed against the evidence presented by Safeway in its denial of

recovery under its UM policy.

Safeway argues that the trial court manifestly erred “when it rejected the

uncontradicted, objectively-supported testimony of an expert in accident

reconstruction and accepted the objectively contradicted testimony of

[Ms. Sharbeno].” Countering, Ms. Sharbeno argues that the trial court was correct

in “finding that the [sensing diagnostic module (SDM)] data was suspect, and in

rejecting Trooper [Clay] Cedar’s opinion based on that data”; thus, a reasonable

factual basis exists for its judgment in her favor.

The vehicle which crashed was a 1999 Chevrolet Camaro with a manual

shift transmission. At the time of the accident, Ms. Sharbeno was fourteen years of

age and did not possess a driver’s license. Ms. Sharbeno testified that she had

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driven a vehicle before—a few times with her father in his truck and once, briefly,

with Mr. Brittain in his truck.4 Ms. Sharbeno denied that she ever drove

Mr. Brittain’s Camaro. She claimed that at that time, she did not even know how

to drive a vehicle with a manual shift transmission.

In recounting the details of the accident, Ms. Sharbeno stated that she was

seated in the passenger’s seat and that neither she nor Mr. Brittain were wearing a

seatbelt. She remembered the weather being cold with a misting rain. Mr. Brittain

drove through a curve then shifted the vehicle into a lower gear in an attempt to

make the car sway, or fishtail. However, she described that Mr. Brittain lost

control when the car “kept coming back and forth and then we went off the

road[.]” Ms. Sharbeno testified that the vehicle flipped and came to rest upside

down. She crawled out of the vehicle and found that Mr. Brittain had been ejected

and was pinned beneath the vehicle. She was transported to the hospital via

ambulance with injuries to her head, hip, and thigh. Mr. Brittain succumbed to his

injuries at the scene of the accident. Ms. Sharbeno’s written statement, dated

January 23, 2008, also reported that Mr. Brittain was driving and that neither was

wearing a seatbelt.

Safeway offered the testimony of Trooper Clay Cedars of the Louisiana

State Police Crash Reconstruction Unit as an expert5 in accident reconstruction to

refute Ms. Sharbeno’s testimony. Trooper Cedars was the lead reconstructionist

assigned to investigate this accident. He did not go to the accident scene the night

that it actually occurred; however, he did review the responding officer’s synopsis

4
Ms. Sharbeno explained that Mr. Brittain owned both a car, a Chevrolet Camaro, and a
pickup truck, a Toyota Tacoma.
5
Ms. Sharbeno stipulated to Safeway’s offering of Trooper Cedars as an expert witness in
accident reconstruction.

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of what occurred prior to his investigation. Trooper Cedars testified that initially,

he had no suspicion that Mr. Brittain was not driving.

He described that his investigation included visiting the crash site, inspecting

the Camaro, reviewing the data from the vehicle’s SDM, also known as the black

box, and interviewing Ms. Sharbeno. He physically inspected the Camaro twice.

According to Trooper Cedars, the Camaro had a glass T-Top roof. During his

inspection, he noted that the passenger’s side T-Top roof was missing and that the

passenger’s side window was broken. The Camaro’s passenger side bore the brunt

of the impact and resultant damages. Trooper Cedars testified that he and

Mr. Brittain were approximately the same height.6 According to Trooper Cedars,

the driver’s seat of the Camaro was in a position that “did not fit the leg length or

stature of the reported driver.” He claimed that he spoke with the tow truck

operator and verified that no one had manipulated the position of the Camaro’s

seats. Trooper Cedars testified that the data from the SDM indicated that the

driver’s seatbelt was buckled when the accident occurred. Trooper Cedars

concluded that the physical evidence and the SDM’s data made him suspicious that

Mr. Brittain was not driving but was, instead, an unrestrained passenger before he

sustained fatal injuries in the accident.

On January 28, 2008, Trooper Cedars interviewed Ms. Sharbeno. He

revealed his suspicion that Mr. Brittain was not driving when the accident

occurred. Ms. Sharbeno, however, maintained that she was the passenger and that

Mr. Brittain was driving.

Safeway asserts that Trooper Cedar’s investigation evinces that

Ms. Sharbeno’s testimony is unreliable. Safeway argues that it was manifest error

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Mr. Brittain’s driver’s license listed his height as 5’9” and his weight as 145 pounds.

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for the trial court to accept Ms. Sharbeno’s testimony over the testimony and

investigative findings of Trooper Cedars.

Ms. Sharbeno did not offer any expert testimony in support of her position.

However, Trooper Cedars was cross-examined extensively relative to a disclaimer

on the SDM report stating: “Driver’s Belt Switch Circuit Status indicates the status

of the driver’s seat belt switch circuit. If the vehicle’s electrical system is

compromised during a crash, the state of the Driver’s Belt Switch Circuit may be

reported other than the actual state.” Trooper Cedars opined that the Camaro’s

electrical system was not compromised during the crash; however, he also

admitted that he had to supply power to the vehicle in order to retrieve the data

from the SDM. Ms. Sharbeno clearly elicited some reasonable doubt as to the

accuracy of the SDM’s data.

We are mindful that our supreme court has emphasized the importance of

deferring to the trial court’s ruling based on its capacity to better evaluate live

witnesses, especially when its factual findings are based in large measure on

credibility determinations.

In such cases, this court has emphasized the importance of deferring
to the trier of fact’s finding, “as the trier of fact is not disadvantaged
by the review of a cold record,” and “is in a superior position to
observe the nuances of demeanor evidence not revealed in a record.”
Adkins v. Huckabay, 99-3605 at p. 16 (La.2/25/00), 755 So.2d 206,
215. See also Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973)
(explaining the appellate court should defer to the trial court’s factual
findings based on the “trial court’s better capacity to evaluate live
witnesses (as compared with the appellate court’s access only to a
cold record) . . .”).

Purvis, 144 So.3d at 927.

Safeway’s reliance on Trooper Cedars’ findings is certainly reasonable and

justified; however, that does not negate the rule of law relative to two permissible

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views of the evidence. This court has stated, “Where there are two permissible

views of the evidence, a factfinder’s choice between them can never be manifestly

erroneous or clearly wrong.” Duplechain v. Town of Church Point, 12-475,

12-476, p. 5 (La.App. 3 Cir. 12/19/12), 107 So.3d 800, 802 (citing Stobart v. State,

through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993)). After carefully

reviewing the record, we find the trial court’s conclusion that Ms. Sharbeno was

not driving the vehicle at the time of the accident was reasonable. At the very

least, this conclusion was based on a permissible view of the evidence. While

Trooper Cedars’ testimony casts doubt on Ms. Sharbeno’s testimony, his evidence

does not conclusively prove that Mr. Brittain was not driving when this accident

occurred. We find that a reasonable factual basis exists in the evidence before the

trial court and that although one may view these facts differently, the trial court

was not clearly wrong. Therefore, according to Purvis, 144 So.3d 922, we must

not substitute our view of the evidence over that of the factfinder and must affirm

its ruling.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs

are assessed to Defendant/Appellant, Safeway Insurance Company of Louisiana.

AFFIRMED.

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