Insurance Company Delays

Hurricane Damage Appraisals at Core of Insurance Dispute

Published on: April 14, 2013 | By Berniard Law Firm

Even in 2012, issues regarding Hurricane Katrina, which occurred in 2005, are still prevalent. Insurance companies are particularly affected by Katrina, and they are still attempting to sort out many claims. Some of the contract claims that are still moving through the courts are somewhat unique. For example, contracts occasionally have provisions where both parties can appoint an appraiser if the two parties cannot decide how much damage actually occurred. The insurance policies will only insure up to a certain amount, of course, but determining the amount of damage is a vital part of reimbursement of the claim.

An apartment building in Metairie, Louisiana carried insurance that had such an appraisal policy. The contract explained that both parties were to appoint their own appraiser, who is supposed to be fair and impartial. Then, a third individual, the umpire, would be appointed. The umpire takes both of the appraisers’ estimates, examines them, and then comes up with a third number that will be the final number for total damage. The two parties are supposed to appoint the umpire as well, but if the two parties cannot decide on an umpire, then the court can appoint one for them.

In this case, the court did appoint an umpire. However, the court not only appointed an umpire, but also imposed certain rules and restrictions to the appraisal process. In particular, the court restricted the documents that the umpire could receive and required that if the umpire needed to communicate with either party then the opposing party would also be included in the conversation. The communication issues required the umpire to copy both parties on e-mails, letters, and make conference calls. Communication with just one party was strictly not allowed. In addition, neither party was to give the umpire documentation of a legal nature that would attempt to convince the umpire that the award should be a certain amount. Instead, the documentation was limited to receipts, inspections, and other impartial information.

The apartment’s appraiser valued the damage at approximately $200,000, but the insurance company’s appraiser valued the damage at zero. The apartment owner argued that the insurance company’s appraiser was not being impartial because they did not award any damages. However, the insurance company noticed that the apartment owners had already fixed most of the damage using funds from other insurance companies, so the insurance company’s appraiser determined that the apartment owners were not entitled to any more damage payments.

The umpire agreed with the insurance company’s appraiser and recommended that the damage award be zero. Naturally, the apartment owner was upset by this result, so he appealed the decision to the Fifth Circuit Court of Appeals for the State of Louisiana. The apartment owner argued that the court interfered too much with the process–the apartment owner should have been able to give the umpire whatever documentation they wanted and communicated however they wanted.

The Court disagreed. It began its analysis by underscoring that although the two parties had an appraisal clause in their contract, the clause does not take away the court’s right to hear a case. In addition, insurance policies are contracts, and should be interpreted under the regular principles of contracts. Therefore, the court will interpret the contract using its regular meaning unless some of the phrases have gained technical definitions in that particular line of business.

The Court explained that the two parties deliberately involved the court when they stated in the contract that the court was to assign an umpire if the two parties could not agree to one. The appraisal portion of the contract did not set specific guidelines in the process, so the court stepped in to create them. The lower court explained that they were afraid the umpire was getting far too much irrelevant information, so they intervened. The Court deemed this a completely acceptable practice under the circumstances. The Court also decided that the insurance company’s appraiser was sufficiently impartial. Lastly, the Court concluded that since the lower court acted appropriately, the award of zero damages should still stand.

This case illustrates a unique clause that could potentially be helpful for the insured, but since the clause was not detailed enough to limit the court’s actions, it turned out to be detrimental.

Attorney Jeffrey Berniard makes New Orleans Magazine top lawyers list

Published on: April 4, 2013 | By Berniard Law Firm

Licensed attorneys in New Orleans were asked which attorney they would recommend to residents in the New Orleans area. Attorney Jeffrey Berniard, of the New Orleans-based Berniard Law Firm, LLC, was named one of the best mass litigation and class action attorneys in New Orleans in the November 2012 issue of the magazine. Propelled into success by holding insurance companies accountable in the wake of Hurricane Katrina, Berniard has built the Berniard Law Firm into one of the premiere personal injury law practices in not only New Orleans, but the entire state of Louisiana. Since Hurricane Katrina, Berniard Law Firm has focused on insurance disputes and class action litigation.

Jeffrey Berniard has been involved in several high-profile cases, solidifying his expertise in complex high risk litigation. He worked on the highly publicized Deep Water Horizon oil rig case in the Gulf Coast, representing a very large group of individuals affected by the sinking oil rig. In 2008, Berniard Law Firm secured a $35 million dollar settlement for a class of 70,000 members seeking bad faith penalties for tardy payments by a Louisiana insurance company in the wake of Hurricane Katrina and Hurricane Rita. In 2009, the Berniard Law Firm participated in five class actions against insurance companies and corporations. In the process of these major claims, the firm also helped many residents of the Gulf Coast with their personal injury concerns, insurance claims and business disputes.

– What is Mass Tort Litigation? –

Hurricane Katrina Case Faces Ambiguous Contract Language Hurdle

Published on: April 2, 2013 | By Berniard Law Firm

In the first year of law school, nearly every student takes a course in Contracts. Contract law is one of the bases of our legal system and is at the core of almost all legal agreements. Everytime you get car insurance, sign a lease, agree to pay your plumber or electrician for work, or sign up for new cellphone service, you are dealing with a contract.

In contracts, every single word and punctuation mark is important. Clear, concise and unambiguous language is vital to writing a good contract. Sometimes even big companies enter into contracts that contain ambiguous language. These ambiguities can cause legal problems down the road. The case of WH Holdings, L.L.C. et al. v. ACE American Insurance Company illustrates how ambiguous contract language can lead to legal problems for the parties involved.

Prior to Hurricane Katrina, WH Holdings, the owner of the Ritz Carlton Hotel Complex in New Orleans, hired Gootee Construction Company to renovate the existing structure of the complex. Gootee was in the process of performing the renovations when Hurricane Katrina made landfall and caused damage to the exterior of the building. WH Holdings filed suit against Gootee’s insurer, ACE American Insurance Company, for almost $3.3 million for damage to the exterior of the hotel.
The parties agreed that the contract was governed by a form document known as the General Conditions of the Contract for Construction (General Conditions). The General Conditions is a document that contains amendments that the parties negotiated themselves – the Court acknowledges that these amendments are clearly marked in the document.

Both parties also agreed that WH Holdings was only covered under the policy which ACE issued to Gootee if, and only if, WH Holdings qualified as an insured party under the policy. Thus the entire case rested on whether or not Gootee was “contractually obligated… to insure WH Holdings such that it became an insured on the ACE policy.”

To reach its decision, the District Court looked at two clauses of the contract, Subsections 11.4.1 and 11.1.5(g). The parties distinctly amended a portion of Subsection 11.4.1. to seemingly place the responsibility of purchasing property insurance on Gootee. The District Court even acknowledged that if 11.4.1 stood alone, ACE would have no basis to contest WH Holdings claim. However, the District Court held that a separate subsection, 11.1.5(g), located in a different portion of the contract, changed the meaning of 11.4.1 by “unambiguously… obligating WH Holdings to carry the insurance ‘when the construction is an addition or a renovation.'”
The district court granted ACE’s motion for summary judgment and concluded that WH Holdings was not an insured party under the contract and Gootee had no responsibility to insure WH Holdings.

The 5th Circuit disagreed with the District Court’s analysis stating that while the district court “relied entirely on subsection 11.1.5(g) in finding the contract unambiguous… subsection 11.1.5(g) is not as ‘crystal clear’ as the district court thought it to be.” The Court goes on to point out that 11.1.5(g) appeared in an entirely different portion of the contract than 11.4.1. Subsection 11.1.5(g) appeared in a section of the contract covering “Contractor’s Liability Insurance” while 11.4.1 appeared in a section entitled “Property Insurance.” The Court found that 11.1.5(g) is limited in scope by a preceding clause and therefore does not modify 11.4.1, and to read it any other way would be ignoring this express limit. The 5th Circuit finally stated that it simply cannot agree with Gootee’s assertion and the District Court’s conclusion that the contract language unambiguously obligated WH Holdings to purchase property insurance.

The 5th Circuit also disagreed with WH Holdings argument that it was in fact Gootee who was “unambiguously required… to purchase the property insurance” since WH Holdings was unable to persuasively argue their interpretation. Stating that there were “difficulties with each party’s contention that the contract unambiguously supports its position,” the 5th Circuit vacated the District Court’s judgment and remanded the case back to the District Court. Finally, due to the ambiguous nature of the contract, the 5th Circuit also ordered the District Court to examine outside evidence brought by both parties regarding the meaning of the contract and to examine how both parties had performed the contract prior to the lawsuit being brought.

Contracts can be extremely important and very complicated particularly when dealing with insurance issues. Hiring the proper attorney is very important to ensure that all documents relevant are maintained, and provided, from start to finish, as well as to navigate any complicated appeals that may arise.

Maurice Work-Related Accident Requires Complex Insurance Interpretation

Published on: March 22, 2013 | By Berniard Law Firm

When an accident occurs, there is usually a fight over whose insurance company will pay for the damages. The issue becomes even messier when the driver responsible for the wreck appears to be working under different employers. This was the issue in a recently decided case by the Louisiana Court of Appeal for the Third Circuit, which involved a wreck in Maurice.

In that case, Broussard v. Progressive Security Ins. Co., et. al., a dump truck hauling material to a construction site struck another vehicle in an intersection. The passengers of that vehicle filed a lawsuit against the driver, the subcontractor for which the driver worked, the general contractor who had hired the subcontractor and the insurance companies for both the subcontractor and the general contractor. The issue before the court was which insurance company would be held liable for damages: the subcontractor’s or the general contractor’s.

The court focused primarily on the language of the policy held by the general contractor. Under that policy, a “non-owned auto” could be covered under certain conditions. A “non-owned auto” was described as a vehicle not actually owned by the company, but were vehicles leased, hired or rented to be used in connection with the business. Thus, the question became whether the dump truck driver had been hired by the general contractor and whether or not the truck he was driving was hired or rented by the general contractor.

After analyzing the facts, the court found that, although the employee was hired by the general contractor, there was no evidence that the truck itself was hired or rented. Therefore, the subcontractor’s insurance still covered the truck and would be liable for the plaintiff’s damages.

Insurance issues like this are complex, especially in the business context. Depending on the policy, certain vehicles may be covered and others may not depending on certain circumstances. The determination of which insurance applies could mean hundreds of thousands of dollars for that insurance company, and hundreds or thousands of dollars in increased premiums for the policy holder. For this reason, it is important that companies and individuals know and understand their insurance policies.

Additionally, companies must be aware of who they hire. As was touched on in the above case, employees who cause an accident while operating within the scope of their employment can place their employer in the liability hot seat. Insurance in this context will play a critical role. For example, if an employee is drunk while driving his delivery route and causes an accident, the employer and the employer’s insurance will likely be responsible for damages.

For businesses, this means hiring a questionable driver can put the company at risk of increased expenses from lawsuits and the danger of being dropped from its insurance. For individuals injured by these negligent drivers, this structure allows them to obtain the compensation they need to cover medical expenses, pain and suffering, and lost wages. Then, hopefully, the individual can achieve a full recovery.

When an accident occurs, the last thing people want to deal with is interpreting convoluted insurance policies. Yet, these documents are of vital importance when determining who will pay for accident damages. A competent attorney can walk you through the documents and help create a legal strategy that protects your best interests.

Insurance Ruling Upholds Third-Party Fire Damage Claims

Published on: March 18, 2013 | By Berniard Law Firm

When personal items are lost to fire, the anguish one experiences can be devastating. One must sift through the remains to determine what was lost, not only as a personal inventory but also for insurance purposes. Such was the experience of Ronald and Delores Semar of Lafayette, Louisiana. Their building was destroyed after an adjacent motor home caught fire due to a defective refrigeration unit. The building housed their collection of antique vehicles, a collection that had taken the Semars 20 years to assemble. The Semars described the collection as a documentary of their lives together. It was reduced to ashes because of the fire.

Property damage to the Semars exceeded their insurance coverage, so the Semars sought to recover their uninsured losses and mental anguish damages from the manufacturer of the defective refrigeration unit. The Semars’ insurance company also sought subrogation against the manufacturer. Subrogation is a legal doctrine by which claims of an insured party (here, the Semars) against a negligent third party (the manufacturer) pass to the insurance company.

Insurance policies and laws are designed to ensure speedy payouts when an insured party properly submits evidence of its damages, even if the insured is a third-party claimant. Specifically, Louisiana Revised Statutes 22:1892(A)(4) provides that all insurers must make a written offer to settle any property damage claim, including a third-party claim, within 30 days after receipt of satisfactory proofs of loss of that claim. Failure to do so subjects the insurer to a penalty payable to the insured, if the insurer’s failure to pay is arbitrary or without probable cause.

In the Semars’ case, the manufacturer’s 2 liability insurers failed to make a written settlement offer within 30 days of receipt of satisfactory proof of their claims. A trial court determined that the insurers had satisfactory proof of loss as to the claim to the building as of November 2009. A written settlement offer was not made until August 2010. The trial court held that the failure of the insurers to comply with the 30-day timeframe was not made in good faith or with probable cause. It ruled against the manufacturer and its insurers, awarding damages in favor of the Semars in the amount of $1,628,789 and in favor of the Semars’ insurance company in the amount of $1,591,505.

The manufacturer appealed, primarily contesting that the trial court improperly concluded that its insurers did not make a written settlement offer within a reasonable time after receiving proper proof of loss for reasons that were arbitrary and without probable cause. A Louisiana Court of Appeals affirmed the trial court’s ruling. It held that proof of loss is a flexible requirement that is met as long as the insurer has sufficient information to act on the claim. The manner in which it obtains the information is immaterial. In this case, because the insurers were informed that the manufacturer was at fault and photographs and documentation proved the loss to the Semars, the court concluded that the insurers were sufficiently apprised of the claims as of November 2009. Its failure to make a written settlement offer until the following August was therefore unjustified. Further, it agreed with the Semars’ contention that the trial court erred in not awarding damages for loss of use of the antique vehicles. Evidence showed that family members of the Semars often used the antique cars when their vehicle was broken down. Accordingly, the court awarded the Semars an additional $20,000 as reasonable compensation for the loss of the use of the antique vehicles. Attorney fees for work completed on the appeal for the Semars and their insurance were assessed against the manufacturer and its insurers as well.

If you have an insurance issue, contact the Berniard Law Firm. Providing the best experts in diagnosing the cause of damages, our law firm can handle all of your litigation needs.

Car Accident in Kenner, Louisiana: Explanation of General Damages

Published on: March 14, 2013 | By Berniard Law Firm

After a recent car accident in Kenner, Louisiana, the plaintiff’s uninsured/underinsured insurance carrier, Progressive, appealed a claim against it, claiming in part that the general damages awarded the plaintiff were excessive. Although Progressive’s claim was dismissed and the award for general damages affirmed, this case brings up the important subject of general damages in personal injury cases.

When filing a claim in a motor vehicle accident, the plaintiff wants to make sure that he or she receives all appropriate damages, and a large component of the damages award typically falls in the category of general damages. So what are general damages and how do you get the appropriate amount of general damages? First, the phrase “general damages” refers to those damages that you can’t easily put a dollar amount on. This is opposed to the other main category of damages, “special damages,” which refers to those damages such as specific medical bills or lost wages that can more easily be determined precisely.

General damages normally encompass areas of loss such as pain and suffering that are inherently subjective. These damages also include compensation for things such as disfigurement and loss of enjoyment of life. One way these damages can be proven is by testifying of things such as limited mobility or the inability to participate in specific activities as a result of the accident. However, while the loss of enjoyment or pain can be testified of, it is often hard to assign a dollar amount to this suffering.

Because the area of general damages is so subjective, many defendants appeal awards of general damages which they deem excessive, just as in the Progressive case referred to above. In the Progressive case, the award of $40,000 in damages was affirmed, however, because the appellate court decided that it was not an excessive award.

In instances like this, the fact finder must look at a preponderance of the evidence when making its judgment, and Progressive argued that the trial court did not do this. The plaintiff had only been to the doctor four times, and Progressive argued that in light of that, $40,000 was excessive. However, as stated above, general damages are not directly tied to any medical bills or any specifically proven dollar amount. Rather, general damages are subjective awards of damage. In this case, the plaintiff had back pain and was limited in the activities that he could pursue after the accident.

Furthermore, the plaintiff in this case was able to receive general damages even though he had previous back problems. Even if you have had previous health problems, that does not preclude an award of general damages. In the case with Progressive, the plaintiff had previous back problems and serious surgery just two years prior. Despite both of these facts, because the plaintiff was able to prove that the accident exacerbated his back problems, he was able to receive general damages. He testified that before the accident he had gone fishing and hunting often, but he was no longer able to fish after the accident.

Even though it is hard to put a specific dollar amount on the damage that comes from the plaintiff’s newly limited activities, the fact finders (the trial court) must make that determination. Once the trial court decides on a dollar amount and passes its judgment, it can only be reversed if the appellate court finds that the trial court’s judgment was clearly wrong or manifestly erroneous or that abuse of discretion was used. In this case, appropriate discretion was used, and the judgment was not blatantly wrong or erroneous. And most importantly, the plaintiff’s attorney made sure to claim all of the requisite damages so that his client could receive the damages he deserved.

Calcasieu School Board Decision Demonstrates Need for Careful Contract Interpretation

Published on: March 7, 2013 | By Berniard Law Firm

In Calcasieu Parish School Board vs. Mary Miller, the Louisiana Third Circuit examines a case in which Ms. Miller’s daughter was involved in a fight at school that resulted in injury to an art teacher employed by the school board. The school board paid the teacher workers’ compensation, then sued Ms. Miller’s homeowner’s insurance company, Louisiana Citizens Property. Both the School Board and the insurance company filed for summary judgment. A summary judgment is a ruling by the judge in favor of the filing party before the evidence in the case is presented. The trial court granted the School Board’s motion and denied the insurance company’s. The Third Circuit, in an opinion that elucidates the court’s manner of interpretation of insurance contracts, upheld the trial court’s decision.

In insurance law, the service agreement is the governing contract. The interpretation of this contract may be the deciding factor in the case. When determining coverage, the law requires that the court interpret the parties’ common intent, beginning with the insurance policy itself. The words and phrases used are assumed to have their everyday meaning, stated by the Louisiana Supreme Court as their “plain, ordinary, and generally prevailing meaning,” unless they have obtained a technical meaning. The entire contract must be considered, meaning that if a sentence affects the meaning of another sentence, then that difference in interpretation must be taken into account.

After the application of these rules, if the meaning is clear, the court is bound to apply the contract as written. Of course, at times there may still be different ways that the agreement can reasonably be interpreted. If this situation occurs, there is an ambiguity in the contract. When there is ambiguity regarding the meaning, the court favors the interpretation of the contract that grants coverage.

In the agreement between Ms. Miller and Louisiana Citizens Property, the contract stated that coverage would be granted for medical expenses resulting from actions of one of the individuals insured. A later provision excludes any “loss…[c]aused by a peril…which is expected or intended by one or more ‘insureds’….” Any time a fight takes place, injuries can be expected. Thus injuries such as the teacher’s that result from a fight, would be excluded.

Of course, the daughter would not expect to injure the teacher. Citizens Property argued that because of the mention of “bodily injury,” including an injury “of a different kind, quality, or degree than initially expected or intended,” the exclusion applied. Under this argument, even if the daughter did not expect to harm the teacher, she may have had the expectation that someone would be injured, and thus the resulting injuries would fall under the exclusion. The insurance company would then not be liable for the teacher’s injury.

The insurance company’s argument may seem convincing; however, the language of the exclusion creates an ambiguity, speaking of a “loss” from a “peril.” A loss is not a liability as a liability results when an individual or entity’s actions cause harm to another person and that person has a legal claim to be recompensed for the harm. A loss, in the context of this agreement, is generally damage to property. In addition, peril, as used earlier in the agreement, refers to loss to property, not liability arising from injury to others. The provision, however, also refers to bodily injury. Some of the language seems to limit it to property loss, while the reference to bodily injury indicates that it may be more extensive. Thus, it is unclear whether the exclusion should include liability for injury.

Following the rule that an ambiguity will be interpreted in favor of coverage, the court upheld the lower court’s ruling against Louisiana Citizens Property and in favor of the Calcasieu School Board. Such matters demonstrate the ambiguity in language that requires careful legal argument and calculated application of clauses to receive a quality verdict.

Plaintiff Injured in Car Accident Loses His Appeal Against His Insurance Company

Published on: March 4, 2013 | By Berniard Law Firm

Keith Brown v. State Farm Mutual Automobile Insurance Company, is a very interesting case to come out of the Parrish of Caddo, Louisiana. Plaintiff, Keith Brown, was injured in a two-car accident on June 30, 2008, while he was the passenger of Michael Darnell. The driver of the other car involved in the accident was Ronald Moseley. At the time of the accident, Plaintiff was insured by State Farm Mutual Automobile Insurance Company (State Farm).

State Farm was given notification of the accident on July 8, 2008, and a claim was set up. On July 18, 2008, State Farm was contacted by Plaintiff’s medical provider, Dr. Diane Sino at Chiropractic Health Center. Subsequently, State Farm paid the submitted bills, with the exception of those bills that were not paid due to invalid procedure codes; or due to a code’s inclusion in another procedure on the bill; or because the code was used more than normally was expected during a visit. Plaintiff and Sino were informed of the reasons for nonpayment, and they did not dispute them.

Further complicating these matters is the fact that on August 5, 2008, Plaintiff was involved in another car accident. On September 10, 2008, he informed State Farm about the accident, and he indicated that Allstate Insurance Company would be responsible for all medicals incurred for that accident. Plaintiff and adjusters for State Farm and Allstate confirmed this during a three-way conference call in which Allstate gave State Farm its claim number and told State Farm to forward its medical payments demand for reimbursement. State Farm had made its final payment to Dr. Sino on September 3, 2008 before receiving notice of the second accident. On September 30, 2008, State Farm sought a refund from Allstate for those inadvertent payments.

This case raised several complicated issues, mainly who was responsible for Plaintiff’s medical bills, since he sustained injuries in two different car accidents and within a relatively short time frame. In December 2008, Plaintiff filed suit against the drivers and their insured for the June 2008 accident. Plaintiff’s claims against Moseley and his insurance company, Shelter Mutual Insurance Company (“Shelter”), were settled on August 29, 2009 for $13,000 pursuant to a “receipt and release.” As pertains to State Farm, in May 2009, State Farm had informed Plaintiff that it would pursue a subrogation claim of $3,894.82 (the amount of the medical coverage paid by State Farm) against Plaintiff, and it requested that he do nothing to jeopardize those rights. In August 2009, Plaintiff’s attorney sent a letter to State Farm indicating that State Farm’s subrogation claim would be protected.

On August 21, 2009, Plaintiff and his attorney received a check for $10,642.31, and a check payable to State Farm for $2,357.69. On September 11, 2009, Plaintiff forwarded the check to State Farm, stating that it represented the “full and final settlement for any subrogation rights that you have against Mr. Brown for payments made in reference to the accident of June 30, 2008.” In the meantime, Plaintiff’s attorney sent a certified letter dated August 14, 2009,to State Farm, indicating that an outstanding balance of $458.18 was owed to Dr. Sino. State Farm received this letter on August 19, 2009. It is this balance which is at issue in the case.

On November 12, 2009, plaintiff filed suit against State Farm, alleging nonpayment of the $458.18, as well as damages and attorney fees due to bad faith. In May 2011, State Farm filed a motion for summary judgment, which the trial court subsequently granted.

The Court of Appeal, for the Second Circuit of Louisiana, affirmed the trial court’s decision. The Court noted that the disputed amount, the $458.18, fell into two categories. One category, totaling $252.86, consisted of items submitted to State Farm that were denied due to “invalid procedure codes, inclusion in another item on the same bill, or submission of multiple codes for the same thing for the same visit.” The other category, totaling $205.32, consisted of items for treatment that took place after the second accident. The Court also found that in regards to all other payments that were not at issue, that State Farm paid them in a timely manner.

Happy Mardi Gras!

Published on: February 12, 2013 | By Berniard Law Firm

As a Louisiana law firm, our practice takes great pride and enjoyment from Fat Tuesday and all of the history that follows. For all of our readers in the New Orleans area, have a safe and happy holiday.

Postings will resume shortly. In the meantime, laissez les bon temps rouler!

Insurance Dispute Over Traffic Accident Leads to Appeal

Published on: February 3, 2013 | By Berniard Law Firm

The Third Circuit Court of Appeal for the State of Louisiana affirmed a Pineville City Court’s decision to grant the plaintiffs’ awards for lost wages and injuries that resulted from a serious traffic accident. The decision was affirmed by the appellate court after a finding that the plaintiff was not negligent in the incident and there was no clear showing of error made by the the trial court.

In considering the defendants, Empire Fire & Marine Insurance Company and the defendant driver’s allegation that the trial court erred in the vehicular accident case, the appellate court explored the facts and reasoned that the offered evidence to support a finding of error was not valid. In order to overturn a trial court’s decision, a court of appeal must find manifest error or determine that the initial ruling was clearly wrong. If the testimony provided is not credible, or the inferences of fact were not reasonable, the appellate court may overturn a decision. However, in this case, the appellate court declared that the testimony was credible, in fact, the defendants own testimony supported the trial court’s ultimate decision. Furthermore, the trial court’s assessment of damages is a finding of fact to which appellate courts give great deference on review. It is not an easy task to simply overturn a damages award, thus, as a result, the record must clearly reveal that the jury abused their discretion in making its award.

The plaintiff in this case was a young woman who was driving her Pontiac Grand Prix with her son and an acquaintance who had his ten year old son as passengers. the plaintiff’s vehicle was in the far right lane on a four lane highway with two eastbound and two westbound lanes. The lane the plaintiff was traveling in became heavily congested, thus, she looked in her rear view mirror to determine whether or not the left hand lane was safe to enter. This is an important factor to consider, since the defendant driver testified that he saw her check her rear view mirror numerous times, supporting the idea that she did not simply enter into the lane negligently. In addition to the plaintiff driver checking her rearview mirror, the adult passenger in the vehicle also checked out the window to assure her that it was safe to change lanes. As she entered the lane, an eighteen-wheeler operated by the defendant collided with her Pontiac, making it spin to face the opposite direction. The issue raised by the incident was who was at fault for the collision.

Many times factual determinations rest on testimony provided. In this case, the officer at the scene provided the conversations he had with both parties following the accident. What the officer had to say leaned heavily in the plaintiff’s favor, since the eighteen-wheeler driver declared that he saw the plaintiff check her rear view mirror numerous times and as he was behind her, decided to change lanes at essentially the same time she did, resulting in the collision. Following the accident the plaintiff driver and her passengers and the three passengers sought medical attention, the doctor’s report indicated that two of the passengers suffered various soft-tissue injuries, including cervical, thoracic, and lumbar strains, a post-traumatic headache, and clavicle damage. In order to remedy there injuries physical therapy, medication, and cold/hot packs were prescribed. Unfortunately, none of the injured parties had medical attention, so the medical expenses began to weigh heavily on their finances. Specifically, the plaintiff’s acquaintance that was riding in her vehicle the day the collision occurred was a carpenter, his injuries grew increasingly worse, negatively impacting his ability to perform his work duties. With the loss of income, increasing medical expenses, and the need for future help, the lawsuit ensued. The trial court held that the defendant driver was solely responsible for the accident and the trial court awarded $9,500 in general damages to the adult passenger plaintiff as well as $11,000 in general damages as well as $1,500 in lost wages to the driver plaintiff. Both adult passengers were reimbursed for their medical expenses.

The trial court determined that the testimony provided by all the parties and the resulting injuries supported the finding of damages and responsibility. Yet, the defendants attempted to portray to the appellate court, that the fact at issue was the trial court’s failure to apply appropriate law to the facts of the case. The entire basis of their argument was that the plaintiff driver “it must be presumed…did not look before she turned because if she had looked she would have surely noticed the appellant’s 18-wheeler.” Further, the defendants alleged that the plaintiff did not testify at trial due to a prior felony conviction, thus her declarations in regards to the collision should be held unreliable. Neither argument succeeded. First, the defendant driver testified that he saw the plaintiff driver check her rear view mirror “numerous times,” this negates the defendants argument that she simply “should have known.” Secondly, the trial court was fully aware of her prior felony conviction, but apparently found the plaintiff’s position more credible then the defendant driver’s. Lastly, the plaintiff had no obligation to testify, no one subpoenaed her as a witness, the defendants never called her to the stand.

The defendants failed to provide any authority for their positions, they simply argued that the trial court’s ruling was not fair. In order to make a legal position, one must first build a foundation using precedent, case law, or statutory authority. Without a foundation a building will fall, as such, the defendant’s argument failed without having any support.

If you have been injured in a car accident, you need representation that will be able to build the legal foundation you need in order to have a supported legal argument.