John Palir, III v. Guideone Insurance Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-904

JOHN PALIR, III

VERSUS

GUIDEONE INSURANCE COMPANY, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2012-651
HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Marc T. Amy, Shannon J. Gremillion, and Candyce G. Perret,
Judges.

AFFIRMED.

Jack W. Caskey
Attorney at Law
704 Ryan Street
Lake Charles, LA 70601
(337) 439-8854
COUNSEL FOR PLAINTIFF/APPELLANT:
John Palir, III

Ryan N. Ours
Dodson, Hooks & Frederick
P.O. Box 14503
Des Moines, IA 50306
(225) 372-6473
COUNSEL FOR DEFENDANTS/APPELLEES:
GuideOne Insurance Company
Topsy United Pentecoastal Church

Mark R. Pharr, III
Patricia K. Penny
Galloway, Johnson, Tompkins, Burr & Smith
328 Settlers Trace Boulevard
Lafayette, LA 70508
(337) 735-1760
COUNSEL FOR DEFENDANTS/APPELLEES:
GuideOne Insurance Company
Topsy United Pentecoastal Church

Keith L. Richardson
Guglielmo, Marks, Schutte, Terhoeve & Love LLP
501 Louisiana Avenue
Baton Rouge, LA 70821
(225) 387-6966
COUNSEL FOR DEFENDANTS/APPELLEES:
GuideOne Insurance Company
Topsy United Pentecoastal Church

Daniel McKean Livingston
Payne & Fears, LLP
4 Park Plaza, 11th Floor
Irvine, CA 92614
(949) 851-1100
COUNSEL FOR DEFENDANT/APPELLEE:
ITT Corporation

Lawrence G. Pugh III
Pugh, Accardo, Haas, Radecker & Carey, L.L.C
1100 Poydras, Suite 3200
New Orleans, LA 70163-1132
(504) 799-4500
COUNSEL FOR DEFENDANT/APPELLEE:
ITT Corporation

GREMILLION, Judge.

The plaintiff-appellant, John Palir, III, appeals the jury’s verdict awarding

him $192,277.45 in general and special damages and assessing him with 50% of

the fault in the explosion of a barbecue trailer. For the following reasons, we

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Palir, who was the pastor of the Topsy United Pentecostal Church (the

Church), was burned following the June 2009 explosion of the church-owned

barbecue trailer. Palir and Deacon Clifton Reeves were attempting to light the

barbecue pit in preparation for a barbecue chicken fundraiser the following

weekend. Deacon Reeves depressed the pilot button; at the same time Palir lit the

pilot with a lighter wand and a ball of fire ignited and blew Palir out of the

barbecue trailer and into Terry Reeves, Deacon Reeves’s grandson, who was

standing in the doorway of the barbecue trailer when the explosion occurred. Palir

filed suit against the Church and its insurer, GuideOne Insurance Company, in

February 2012. On that same date, Palir filed a motion and order to consolidate

Terry Reeves’s suit, filed in January 2012, with his own. In June 2012, Palir added

the manufacturer of the regulator controlling the pilot lighting system, ITT

Corporation, as a defendant. In October 2012, Palir and Reeves file a joint

amending and supplemental petition for damages citing the malfunction of the

regulator and the negligence of the Church in causing injuries to Reeves and Palir.

In March 2017, Palir filed a motion in limine to prevent a jury instruction on

his fault based on the summary judgment granted in the consolidated matter of

Reeves v. GuideOne Insurance Co., Docket No. 2012-0135 (Reeves matter). Palir

was named as a defendant in the Reeves matter. In October 2012, in the Reeves

matter, the trial court granted summary judgment in favor of Palir and dismissed

all claims against him. Neither a record of the hearing on the motion nor reasons

for judgment are included in the record before us. In the motion in limine, Palir

urged that in granting the summary judgment in Palir’s favor in the Reeves matter,

the trial court determined that he was “not at fault” and the Church could not

relitigate the issue based on the doctrine of res judicata.

This matter proceeded to trial in March 2017. Palir’s motion in limine to

preclude any instruction to the jury relating to him being assessed fault, urging that

res judicata barred any such evidence, was granted in part and denied in part. The

Church was allowed to introduce evidence of Palir’s negligence, but not evidence

regarding whether Palir knew or should have known of a defective or hazardous

condition in the barbecue trailer pursuant to La.Civ.Code art. 2317.1.

Following a jury trial, the jury assessed Palir with 50% of the fault, and the

Church with 50% of the fault. The jury made the following damage awards to

Palir:

1) PAIN AND SUFFERING, PAST AND FUTURE $60,000

2) MENTAL ANGUISH, PAST AND FUTURE $30,000

3) LOSS OF ENJOYMENT OF LIFE, PAST AND FUTURE $10,000

4) MEDICAL EXPENSES $81,477.45

5) LOST WAGES $10,800.00

The trial court rendered a judgment in June 2017, in favor of Palir in the

amount of $96,138.72 based on the allocation of 50% of the fault to him. Palir

now appeals. For the following reasons, we affirm.

ASSIGNMENTS OF ERROR

1. The trial court erred by allowing the jury to assess fault to John
Palir, III;

2. The jury erred by assessing or apportioning 50% fault to John Palir,
III.
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DISCUSSION

Res Judicata

Palir argues that the summary judgment rendered in the Reeves matter

precluded any fault from being rendered against him in this matter based on res

judicata. In reviewing the trial court’s denial of Palir’s motion in limine relating to

the issue of res judicata, we accord great discretion to the trial court. Heller v.

Nobel Ins. Group, 00-0261 (La. 2/2/00), 753 So.2d 841; Scott v. Dauterive Hosp.

Corp., 02-1364 (La.App. 3 Cir. 4/23/03), 851 So.2d 1152, writ denied, 03-2005

(La. 10/31/03), 857 So.2d 487. Louisiana Revised Statutes 13:4231 provides:

Except as otherwise provided by law, a valid and final
judgment is conclusive between the same parties, except on appeal or
other direct review, to the following extent:

(1) If the judgment is in favor of the plaintiff, all causes of
action existing at the time of final judgment arising out of the
transaction or occurrence that is the subject matter of the litigation are
extinguished and merged in the judgment.

(2) If the judgment is in favor of the defendant, all causes of
action existing at the time of final judgment arising out of the
transaction or occurrence that is the subject matter of the litigation are
extinguished and the judgment bars a subsequent action on those
causes of action.

(3) A judgment in favor of either the plaintiff or the defendant
is conclusive, in any subsequent action between them, with respect to
any issue actually litigated and determined if its determination was
essential to that judgment.

The Church argues that the summary judgment in the Reeves matter only

pertained to the issue of whether Palir was negligent as an employee of the Church,

thereby making it vicariously liable for his tortious actions. The Church states that

summary judgment was granted in favor of Palir and was unopposed by the Church

relating to the vicarious liability issue in the Reeves matter. Terry Reeves settled

with the Church before trial. The Church argued that the summary judgment did

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not preclude a determination of Palir’s fault in his own action against the Church.

The following colloquy occurred between counsel and the trial court:

TRIAL COURT: But let’s look at that. Let’s make sure the judgment
says what y’all think it says or exactly what it says. I mean, you are
saying there is no way he could ever be found at fault. That’s what
the judgment says. There is no way he could have been found at fault
at all, or did it have to do with his knowledge of the defect?

COUNSEL FOR PALIR: Let me look at that, Your Honor.

TRIAL COURT: Okay, it could be, I mean, those are two different
issues. And I believe that’s what counsel for the Defendant is saying,
and I think they are actually – I understand that they’re actually
agreeing with you about saying they don’t believe that he can – or
they are not going to try to based on that Summary Judgment, the
granting of that Motion for Summary Judgment, that they recognize
that they can’t come in say that he knew or should have known
because that’s what the judgment said.

But they were saying, there may be some other negligence that
he’s responsible for in the way he carried out the act of lighting that
barbecue pit that day, that they may have an opportunity to present
evidence on.

...

Was that not the issue on the Motion for Summary Judgment; is
whether as the pastor he was – is there evidence to show that he knew
or should have known?

COUNSEL FOR CHURCH: Your Honor, the judgment in that case
just said, “Granted as prayed for.”

So you have to go back to the Motion itself.

The Church’s counsel goes on to state that Palir argued in that motion that

he did not have custody or control of the barbecue trailer and did not know of a

defect.

The trial court further found:

I guess just to be clear for the record, as far as the Motion in
Limine by Mr. Palir, I guess I will say I am granting it in part, only
with regard to the issue of whether Mr. Palir knew or should have
known of the defect; but I’m denying it as it relates to any other
negligence, actions on his part if the Defendant has the evidence to
present on that issue.
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In Burguieres v. Pollingue, 02-1385, p.8 (La. 2/25/03), 843 So.2d 1049,

1054, the supreme court reviewed the jurisprudential underpinnings of the legal

theory of res judicata and concluded that the “identity of parties” requirement

mandates that the “parties must appear in the same capacities in both suits.” The

parties to the suits here undoubtedly are not appearing in the same capacities; in

the Reeves matter Palir was a defendant for purposes of determining the Church’s

liability under La.Civ.Code art. 2317.1, whereas in this matter, Palir is asserting his

own claim for damages against the Church. We note, though, that although the

judgment granting summary judgment in favor of Palir is in the record, it states

only that summary judgment is being granted in his favor. There are no reasons

for judgment nor any documents submitted into evidence in this case relating to the

substance of the granting of summary judgment in Palir’s favor. Nevertheless,

based on the testimony of counsel relating to the summary judgment in the Reeves

matter and the trial court’s findings, we find no error in the trial court’s partial

denial of Palir’s motion in limine relating to the res judicata effect of the former

judgment. Even without the record of the summary judgment granted in the

Reeves matter, it is clear that the requirement that “the parties must appear in both

suits in the same capacities” is simply not met in this case. Burguieres v. Pollingue,

843 So.2d at 1055.

Fault Apportionment

Alternatively, Palir argues that if res judicata does not apply, the jury

manifestly erred in assessing any fault for the explosion to him. In Jolivette v.

Hebert, 16-246, pp. 6-7 (La.App. 3 Cir. 10/12/16), 203 So.3d 400, 405-06, we

stated:

In reviewing fault allocation, the factfinder’s allocation is a
factual determination that is owed deference and is subject to the
manifest error/clearly wrong standard of review. Clement v. Frey, 95-
5

1119, 95-1163 (La. 1/16/96), 666 So.2d 607. The supreme court
recently summarized the manifest error standard of review:

This court has announced a two-part test for the
reversal of a factfinder’s determinations: (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). See Mart v. Hill, 505 So.2d 1120,
1127 (La.1987). This test dictates that a reviewing court
must do more than simply review the record for some
evidence which supports or controverts the trial court’s
findings. See id. The reviewing court must review the
record in its entirety to determine whether the trial
court’s finding was clearly wrong or manifestly
erroneous. See id.
Lobell v. Rosenberg, 15–247, p.10 (La. 10/14/15), 186
So.3d 83, 90.

In reviewing the factfinder’s allocation of fault, the supreme
court has set forth various factors for consideration:

(1) whether the conduct resulted from inadvertence
or involved an awareness of the danger, (2) how great a
risk was created by the conduct, (3) the significance of
what was sought by the conduct, (4) the capacities of the
actor, whether superior or inferior, and (5) any
extenuating circumstances which might require the actor
to proceed in haste, without proper thought. And, of
course, as evidenced by concepts such as last clear
chance, the relationship between the fault/negligent
conduct and the harm to the plaintiff are considerations in
determining the relative fault of the parties.

Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967, 974
(La.1985). In Clement, 666 So.2d at 611, the supreme court instructs
that: “After the court of appeal finds a ‘clearly wrong’ apportionment
of fault, it should adjust the award, but only to the extent of lowering
or raising it to the highest or lowest point respectively which is
reasonably within the trial court’s discretion.”

In accordance with La.Civ.Code art. 2317.1, the jury returned a verdict

finding that the barbecue trailer was in the custody of the Church, that it presented

an unreasonable risk of harm to Palir, and that the Church knew or should have

known of the defect. It further found Palir 50% at fault in causing his own

damages.
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Dana Reeves1

Dana Reeves, Clifton Reeves’ daughter, and a twenty-three year member of

the Church who had been the secretary for the ten years prior to trial, testified that

the Church has no employees. She said she works as a bus driver and before that

as a phlebotomist for fourteen years. Dana testified that Palir was voted in by the

congregation and receives a “love offering” if there is enough money. She said the

Church did not provide him with a vehicle, clothing allowance, or a rectory but he

does receive a housing allowance. Dana said the Church had twenty-five members,

including children.

Dana testified that her father and Chris Dronet kept up the barbecue trailer at

the Church. She said the barbecue trailer had been donated to the Church in the

late nineties by another church. She said that the barbecue trailer has never been

inspected nor repaired since the time of the donation; however, church members

ensure that it is cleaned before each use. Of the three church board members

including her father, Dronet, and Palir, none receive any monies save for Palir.

She said he received about $650 a week at the time of the accident. She said that

all church members pitch in and help out and that Palir helped and used the

barbecue trailer as much as anyone else. Dana said that no one had experienced

problems with the barbecue trailer before this incident and it had been used just a

few weeks before the incident.

Clifton Reeves

Clifton was eighty-four years old at the time of trial and had known Palir for

about twenty to twenty-five years. He said the board of directors does not give a

list of duties to incoming pastors. He stated that as a spiritual leader of a small

church there are no official duties or responsibilities but that Palir would help out.

1
We refer to the Reeves family members by first name to differentiate amongst them.
7

Clifton said that no one at the Church “maintained” the barbecue trailer except for

filling the propane bottles and cleaning the pit. He said he filled the propane

bottles.

Clifton then described the accident:

Well, they opened the windows and the doors on the pit. I went to the
front and turned the valve on the propane bottle and walked back
around and got in the trailer, and Pastor Palir got in with me. I got over
to where the pilot light was to push the button down for the pilot light to
light and to ignite.

Before I pushed it down, the door was opened; and normally that
pilot light has to be warmed up a little bit before it will catch. But
anyhow, as soon as I pushed the button down, he [Palir] struck the
striker, and it blew him out of the trailer.

And Terry was standing behind him, and it blew him out with
him. A big ball of fire came out of there. . . .

Clifton described the burns Palir received that “looked like a glove coming

off, his skin falling off his hand.” Clifton said that no one has ever had any

problems using the barbecue trailer and that if he had any idea that something was

wrong with it, he would not have used it. He said it was used frequently, most

recently in May 2011. Clifton testified that he and Palir lit the pilot light the same

way they had always done it before. He said there were no indications that this

accident was about to occur. Clifton testified that no one was officially in charge

of the barbecue trailer and that there was no maintenance committee, but that he

and Palir used the barbecue trailer the most of anyone at the church.

Allen Dudden2

Dudden, an expert in the field of propane delivery systems, testified that he

had been retained in hundreds of cases. Dudden testified that he conducted two

on-site inspections in this case and read numerous depositions. Dudden concluded

that the rotary rack oven, including the gas valve, gas trains, and delivery systems,

2
Dudden’s deposition was read into the record.
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was an “unlisted appliance” that was never tested for safety, performance, or

construction. It had no manufacturer labels or lighting instructions. He noted that

the condition of the barbecue trailer was deteriorating and rusting, was not

maintained, and did not comply with codes. Dudden said the regulator was a

single-stage regulator instead of a two-stage regulator and that the tank itself was

“illegal” in that, after 2002, propane tanks lacking an overfill prevention device

(OPD) should not have been in use. Dudden opined that the lack of an OPD valve

could have caused the accident and that the single-stage versus double stage

“definitely” could have caused this accident.

Dudden then discussed the lack of maintenance to the barbecue trailer itself

and the propane delivery system. He said regulators have a ten-year life span and

that propane tanks should be regularly checked. Additionally, Dudden found the

hoses that were used were not for use with propane or gases, the valve control had

excess pressure for the load it was designed for, the gas piping was corroded, the

oven’s electrical system was not to code, the bottom of the oven was rusted and

there were holes through it in the combustion chamber, the interior was excessively

dirty, and the racks were not cleaned. Dudden then described testing he conducted

of the unit at a later date.

Dudden concluded that the barbecue trailer “definitely did not comply with

codes and standards.” When asked whether a person without superior knowledge

of propane systems would know that the unit was not in compliance, Dudden

testified:

They shouldn’t be working with it. So they wouldn’t know that, that
is correct. And that’s why the instructions are so important in labeling
the appliance. And why they should have called a propane company
out to inspect that and guide them as to how they should have used it.

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Regarding the propane tank no longer meeting regulations, Dudden testified: “The

church would not have known that, but the station that filled that tank, refilled it,

would have been aware of it; and they should not have filled it.” Dudden again

testified that if a propane supplier had been called out to inspect “this whole setup”

a change to a two-stage regulator would have been the correct recommendation.

When questioned if this accident would not have occurred if a two-stage regulator

had been in place, Dudden testified:

That’s a hard one to answer because accidents can occur even if
everything is operating properly. Okay. So in all probability, if this
had been properly installed and the unit had been properly maintained
and that safety control been verified on a periodic basis that it was
functioning properly, and had the pilot been in the proper location,
then it’s most likely it would have operated properly.

Dudden was of the opinion that any qualified propane inspector would have

noted the numerous deficiencies in this unit. He said the Church should have had

the unit inspected when they received it and instructions should have been

prepared for it if it had none.

John Palir, III

Palir, who was fifty-seven years old at the time of trial, testified that he is an

auto and frame specialist and manages a body shop. He had been pastor of the

Church since 2008, but had been an assistant pastor of the Church in the 1990s

when the barbecue trailer was gifted to the Church. He testified that he was not an

employee of the Church but an independent contractor and files a Schedule C with

the IRS. Palir said he pays self-employment tax on “love offerings” that he

receives from the Church. He said there was no set amount for the love offerings

and that sometimes he received no money. He said that he does receive a housing

allowance up to $15,000 per IRS regulations. Palir said his obligation to the

Church was as its “spiritual leader” and that he had never received any other

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official duties or responsibilities relating to the inspection and maintenance of the

Church, but that he helps where he can. He said the Church has no employees and

that everyone volunteers.

Regarding the barbecue trailer, Palir said the congregants took care of it and

it was never his duty to take care of it. When asked to pick a person that took the

most responsibility for it, he identified Clifton Reeves. Palir said that Reeves was

the person who had the propane tank refilled.

Regarding the day of the accident, Palir said that upon entering the barbecue

trailer, the rotisserie was working. He did not adjust any valves or make changes

to anything in the barbecue trailer. He had the wand lighter and had to get down

on the ground to light the pilot. Palir said that when you light the pilot you have to

turn the striker on. He testified that at that point he saw the pilot and lit it and

instantaneously a ball of fire knocked him and Terry Reeves out of the barbecue

trailer and into the church yard.

Palir testified that he had no knowledge of anyone ever having problems

with the barbecue trailer and that if he had any idea something was wrong with it

he would not have used it. He said that he lit the pilot light the way he always had

in the past and never had any problems. Palir said that he and Clifton Reeves were

the people at the Church who most used the barbecue trailer. He admitted that

neither he nor Reeves nor anyone else at the church had any expertise in propane

delivery systems.

In reviewing the evidence, we cannot say that the jury erred in assigning

Palir 50% of the fault in causing his own injuries. It was undisputed that he and

Reeves were the people most familiar with the barbecue trailer, that the barbecue

trailer was decades old, and that it had never been serviced. Palir had been an

assistant pastor of the Church in the 1990s when the barbecue trailer had been
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gifted to the Church, thus he was aware of the age of the unit. As a member of the

three-person church board, the pastor, and the leader of the church, Palir had a duty

to act reasonably in all matters pertaining to the Church and his continued use of a

barbecue trailer for such an extended period of time without ever having it

inspected could reasonably be construed as independent negligence on the part of

Palir. Palir’s own expert testified regarding the deteriorating condition of the

barbecue trailer, which did not require propane system expertise to determine.

Based on its age and condition, a jury could conclude that a reasonable person

would be required to regularly have it inspected and serviced in order that it is safe

for use. Accordingly, we cannot find that the jury manifestly erred in assessing

Palir with 50% of the fault.

CONCLUSION

The trial court’s judgment denying Palir’s motion in limine in part, relating

to his being free from all fault, is affirmed. The judgment in favor of Palir in the

amount of $96,138.72 is affirmed. All costs of this appeal are assessed to the

plaintiff-appellant, John Palir, III.

AFFIRMED.

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