Opinion
No. 99-CA-1012 c/w No. 99-CA-1013.
March 22, 2000.
ON APPEAL FROM THE FIRST PARISH COURT PARISH OF JEFFERSON, STATE OF LOUISIANA, NO. 112-626 C/W 114-703, DIVISION "A", THE HONORABLE REBECCA M. OLIVIER, JUDGE PRESIDING.
Daryl A. Higgins, Walter P. Maestri, Oakwood Corporate Center, 401 Whitney Avenue, Suite 500, Gretna, Louisiana 70056, Attorney for Defendant/Appellant (Zead R. Ellebnawi).
Daniel A. Claitor, 821 Baronne Street, New Orleans, Louisiana 70113, Attorney for Plaintiffs/Appellees (Shirley and Stanley Straughter).
Panel composed of Judges Charles Grisbaum, Jr., Sol Gothard and Marion F. Edwards.
Defendant, Zead Ellebnawi, appeals a judgment by the trial court which finds him 100% at fault in an automobile accident and awards damages in favor of plaintiffs, Stanley and Shirley Straughter. For reasons that follow, we affirm.
In this negligence action, the Straughters filed suit against Mr. Ellebnawi alleging that he disregarded a red traffic light at the intersection of Airline Highway and Roosevelt Drive in Kenner, causing a collision between Mr. Ellebnawi's vehicle and a vehicle driven by Stanley Straughter. According to the allegations made in the petition, Stanley Straughter was driving a 1989 Chevrolet Beretta, owned by Shirley Straughter. Mr. Straughter was traveling northbound on Roosevelt at its intersection with Airline Highway in Kenner. The intersection is controlled by a traffic light which was green as Mr. Straughter began to make a left turn onto the westbound lane of Airline Highway.
The petition further alleges that Mr. Ellebnawi, driving a 1986 Chevrolet owned by Assem Badr, disregarded a red light and struck the Straughter vehicle. The petition makes claims for damages for personal injuries to Mr. Straughter and property damages for Mrs. Straughter, and names Mr. Ellebnawi, as well as Mr. Badr and his insurance carrier, Big Easy Insurance Agency, Inc. as defendants.
Mr. Ellebnawi answered the petition denying liability and making a reconventional demand against the Straughters and their insurance company, Clarendon National Insurance Co., for his injuries. In the petition for reconventional demand, Mr. Ellebnawi asserts that he was driving eastbound on Airline Highway. As he crossed the intersection with the green traffic light, his car was struck suddenly by Mr. Straughter's vehicle as it crossed the intersection attempting to turn left onto Airline Highway.
There is no indication in the record that either Mr. Badr, or his insurer, Big Easy Insurance Agency, answered the petition. Clarendon filed an answer to the reconventional demand.
The record shows that a separate suit was filed by a guest passenger in the Straughter vehicle, Marvin Taylor. Mr. Taylor filed suit against Mr. Ellebnawi and his insurer, Omega One Insurance Company, Mr. Straughter and his insurance company, Clarendon, and Mr. Badr. The only answer filed in this suit was filed by Omega. A Motion to Consolidate the two lawsuits was filed by Mr. Ellebnawi. That motion was granted and the matters were consolidated.
Omega One Insurance Company, which is a party to the suit brought by Mr. Taylor, but not the suit brought by the Straughters, filed a "Motion to set for Trial on the Merits".
It appears from the record that Omega is the actual insurance company and Big Easy is the agency who secured the policy, although that fact is not established by any pleading.
After a trial on the merits, the trial court found Mr. Ellebnawi 100% liable for the accident and awarded damages to the Straughters. Mr. Ellebnawi has appealed that judgment. There is no judgment as to damages to Mr. Taylor, although it appears that all of Mr. Taylor's claims were still viable. Further, there is no judgment against either Big Easy or Omega. The pleadings do not clarify whether Omega and/or Big Easy insures Mr. Ellebnawi and/or Mr. Badr. However, from arguments made on the record, it appears that Mr. Ellebnawi was driving a Taxi Cab with the permission of the owner, Mr. Badr. Apparently, Omega insures the vehicle and therefore provides coverage for Mr. Ellebnawi.
As to Mr. Taylor's claim, it is alleged that his claim against the Straughters was settled prior to trial. However, that is not substantiated by the record before us.
The only appeal filed in this matter was filed by defendant, Zead Ellebnawi, and the only issue presented for review is the assessment of liability and the award of damages to the Straughters. Accordingly, our review is limited to those issues.
At the trial on the merits, the defense presented the deposition of an eyewitness to the accident, Jeffery Mores, Jr. Mr. Mores testified that he was traveling east on Airline Highway at about 11:30 a.m. on the day of the accident. The weather was clear and the traffic was light because it was Sunday. A taxi cab was traveling in the same direction, directly in front of Mr. Mores, about three car lengths ahead. The taxi approached the intersection of Airline Highway and Roosevelt which is controlled by a traffic light. There was a Chevrolet Beretta traveling north on Roosevelt. The Beretta was trying to make a left turn onto westbound Airline Highway from Roosevelt. The Beretta stopped momentarily, and then entered the intersection at the last moment. Mr. Mores was certain that the taxi had the green light as it entered the intersection and at the time of the collision with the Beretta.
After the accident occurred, Mr. Mores stopped his car to check on the condition of the taxi cab driver. Then he ran across Airline Highway and called for help on a pay phone. Shortly afterward, a police officer arrived on the scene and Mr. Mores made a statement. He also gave his name and address to the taxi driver before leaving.
Mr. Taylor testified that he is Mr. Straughter's first cousin and, at the time of the accident the two were roommates. He stated that on the day of the accident, Mr. Straughter was driving on Roosevelt Drive. He was going to turn left on Airline Highway to drop Mr. Taylor off at a rent-a-car office. Mr. Taylor gave an account of the accident by saying that, "a lady had told us we can turn, and by the time we got ready to turn, the cab just came out of nowhere." When questioned about the color of the traffic signal, he testified that the light was green as they approached the intersection. He further stated, "I don't know if it was green or yellow at the time (of the impact) but I know it was green when we entered the intersection. But it probably turned yellow by the time he hit us. I don't know if that's for sure".
Thomas Harold, a friend of the Straughters and Mr. Taylor, testified that he was traveling eastbound on Airline Highway when he came upon the accident. He saw Mr. Straughter and Mr. Taylor on the side of the road. Mr. Taylor was sitting on the curb and Mr. Straughter was "standing up holding his head".
It is clear from his testimony that Mr. Harold did not witness the accident happen. His testimony is that he drove up just as a Kenner police officer did. Mr. Harold further testified that he did not see any other vehicle in the area.
Stanley Straughter testified that he was heading northbound on Roosevelt and intended to make a left turn on Airline. He contends he had the green light as he entered the intersection, and was struck by a cab traveling eastbound on Airline Highway which disregarded a red light. He and Mr. Taylor got out of the car to assess the damage. Shortly afterward a Kenner Police Officer came on the scene. Mr. Harold arrived at the same time. Mr. Straughter denied seeing Mr. Mores at the scene.
Mr. Straughter testified that he went to the hospital later that day suffering with pains in his lower back. His pain continued from the date of the accident, October 13, 1996, until March, 1997.
There is no testimony as to the extent of the pain or any restraint of activity caused by the pain. The only comment Mr. Straughter made was that he was "stove up". However there is documentary evidence which includes a report and statement from Dr. Stewart Altman which shows that Mr. Straughter was diagnosed with both a cervical and a lumbosacral strain. He was treated by Dr. Altman from October 17, 1996 through March 19, 1997. The total bill for the therapy was $1,120.00. Also included in the record is a statement from Delta Radiology for $43.00, a bill from East Jefferson Hospital for $301.00, a bill from Eckerd Pharmacy for $15.41, and check stubs from Mr. Straughter's employer showing two days lost wages.
Shirley Straughter testified that she owned the car her son, Stanley, was driving. She stated that the damage to her automobile amounted to $3,568.29. She presented documentary evidence to support this claim in conjunction with her testimony.
At the conclusion of trial, the trial court found for the plaintiff and awarded damages to Mr. Straughter in the total amount of $10,528.10. That award included, $1,479.41 in actual medical expenses, $48.69 in lost wages, and $9,000.00 for pain and suffering. The amount was reduced to $10,000.00, the jurisdictional limit of the court. The court further made an award to Mrs. Straughter in the total amount of $3,568.29. That award consisted of $854.00 for towing, and $2,714.29 for repairs.
In brief to this court, Mr. Ellebnawi argues the trial court erred in finding him 100% liable for the accident. In the alternative, he argues the trial court awarded excessive damages.
LIABILITY
In making the finding of liability, the trial court made the following statement on the record:
. . . There's (sic) two issues for the Court to address. The first one was whether plaintiff proved the accident more likely than not was caused by the negligence of Zead Ellebnawi, and I believe that they have.
I found the testimony to be credible from the plaintiffs, and I find the accident was caused by the negligence of Zead Ellebnawi. The second issue to decide was whether plaintiff, Stanley Straughter, suffered any bodily injury as a result of the accident, whether plaintiff proved that, and I think that they have.
It definitely seems like without a doubt that the impact was more than just minimal as what we usually see here . . .
Recently, in Oldstein v. State Farm Mut. Auto. Ins. Co., 99-515 (La.App. 5 Cir. 10/26/99), 1999 WL 973567, ___ So.2d ___, this court summarized the standard of review on factual questions. In that case we stated:
On appellate review of a factual determination, the reviewing court may not set aside the jury's findings of fact in the absence of manifest error or unless they are clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978); Canter v. Koehring, 283 So.2d 716 (La. 1973). Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La. 1989). The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Stobart v. State, Through DOTD, 617 So.2d 880 (La. 1993). Thus, where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong.
In the instant case, Mr. Ellebnawi argues that the trial court erred in failing to consider the testimony of an independent eyewitness to the accident. The argument refers to the deposition of Mr. Mores. From the record it appears that the trial court considered all of the evidence, both testimonial and documentary in rendering the decision. The trial court asked questions of the witnesses to be certain their testimony was that they did not see Mr. Mores' vehicle at the scene. Further, although Mr. Mores testified that he gave a statement to the police officer who investigated the accident, that report is not in the record. Thus, his testimony could not be verified by the trial court. Given the evidence presented in the matter before us, we cannot find manifest error in the trial court's finding of fact.
DAMAGES
In the alternative, Mr. Ellebnawi argues the award of $9,000.00 for pain and suffering is an abuse of the trial court's discretion. The standard for reviewing the award of damages is that of abuse of discretion. Reck v. Stevens, 373 So.2d 498, 501 (La. 1979), Hooker v. Super Products Corp., 98-1107 (La.App. 5 Cir. 6/30/99), 1999 WL 459360 ___ So.2d ___. We must consider whether, after an articulated analysis of the facts, we find that the trial judge abused her great discretion. Bostwick v. M.A.P.P. Industries, Inc., 97-791 (La.App. 5 Cir. 12/30/97), 707 So.2d 441, 448. In reviewing the issue of whether the trier of fact abused its discretion in making an excessive award, the appellate court must determine whether the award can be supported under the interpretation of the evidence most favorable to the plaintiff which reasonably could have been made by the fact finder. Smith v. Midland Risk Ins. Co., 29,793 (La.App. 2 Cir. 9/24/97), 699 So.2d 1192, 1195. We are reminded that the discretion of the trial court in damage awards is "great", even "vast" and should rarely be overturned by the appellate court. Youn v. Maritime Overseas Crop., 623 So.2d 1257 (La. 1993), cert denied, 510 U.S. 114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994); Creppel v. American Tugs, Inc., 95-696 (La.App. 5 Cir. 1/17/96) 668 So.2d 374, writ denied, 96-0643 (La. 4/26/96), 672 So.2d 674.
We have reviewed the record in accordance with the above standard and have found no abuse of the trial court's vast discretion. Accordingly, we affirm the trial court.
AFFIRMED
I respectfully dissent from the majority opinion in this case. It is my opinion that the trial court erred in failing to allocate a percentage of fault to plaintiff/appellee Stanley Straughter. Under the doctrine of comparative fault, Straughter should be held fifty percent (50%) liable for the damages sustained in the accident and his award reduced accordingly.
Defendant/appellant Zead Ellebnawi introduced the deposition testimony of independent witness Jeffery Mores, Jr. during the trial. Mores was traveling eastbound on Airline Highway approximately three car lengths behind Ellebnawi. He testified that when the taxi cab driven by Ellebnawi reached the intersection of Airline Highway and Roosevelt, it had the green light. The vehicle driven by Straughter collided with Ellebnawi's vehicle while attempting to make a left turn onto westbound Airline Highway from Roosevelt. The trial court apparently discounted the testimony of Mores and found Ellebnawi to be completely (100%) at fault for the accident. It is my opinion that the trial court failed to properly weigh Mores' testimony and erred in assigning 100% fault to Ellebnawi.
The fact that more than one party can contribute to the harm is the reason for our comparative fault system. As a threshold requirement, a plaintiff must be found partially at fault in causing the resulting harm before the application of this doctrine can be considered to reduce a damage award. In apportioning fault the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed.
Campbell v. Louisiana Dept. of Transp. Development, 94-1052 (La. 1/17/95), 648 So.2d 898.
Trahan v. Savage Industries, Inc., 96-1239 (La.App. 3rd Cir. 3/5/97), 692 So.2d 490; writ denied, 97-1636 (La. 10/3/97), 701 So.2d 207; writ denied, 97-1652 (La. 10/3/97), 701 So.2d 209.
Campbell v. Louisiana Dept. of Transp. Development, supra at 902.
The doctrine of comparative fault is codified under LSA-C.C. art. 2323, which states in part:
"(A) In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person's insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 24:1032, or that the other person's identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss."
Taking into account the testimony of Mores, it is my opinion that the injuries sustained by Straughter were partly due to his own negligence. Under the doctrine of comparative fault, his damages must be reduced in proportion to his percentage of negligence. It is my opinion that Straughter was fifty percent (50%) at fault in this accident and that the amount of damages awarded to him by the trial court must be reduced accordingly. I respectfully dissent from the opinion of the majority.