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Barraka v. Bowie11/10/2004
ch motion the trial court granted. In granting the motion, the trial court found that the plaintiffs had failed to establish by a preponderance of the evidence that Mr. Simmons was either on a mission for Ms. Bowie or that she had negligently entrusted the vehicle to him. Thus, the trial court concluded that the plaintiffs failed to establish either independent negligence or vicarious liability on Ms. Bowie's part. Noting that Safeway's status as a defendant arose only as the insurer of Ms. Bowie, the trial court dismissed Safeway as well. The plaintiffs then perfected this appeal.
OPINION
The procedure for an involuntary dismissal is set fourth in La.Code Civ.P. art. 1672. If the matter is tried as a bench trial, the defendant may move for a dismissal of the plaintiff's action at the close of the plaintiff's case based "on the ground that upon the facts and law, the plaintiff has shown no right to relief." La.Code Civ.P. art.1672(B). At that point, the trial court may either render judgment or decline to render judgment until the close of all of the evidence. Id. The trial court is required to weigh and evaluate all of the evidence presented by the plaintiff and to grant the dismissal if the plaintiff has failed to prove his claim by a preponderance of the evidence. Guillory v. Int'l Harvester Co., 99-593 (La.App. 3 Cir. 10/13/99), 745 So.2d 733, writ denied, 99-3237 (La. 1/14/00), 753 So.2d 220. "The grant of an involuntary dismissal is subject to the manifest error standard of review." Kite v. Carter, 03-378, p. 5 (La.App. 3 Cir. 10/1/03), 856 So.2d 1271, 1274.
We find no manifest error in the trial court's conclusion that the plaintiffs failed to establish by a preponderance of the evidence either that Mr. Simmons was on a mission for Ms. Bowie or that she negligently entrusted her vehicle to him. We also agree that the plaintiffs neither pleaded nor proved a basis for establishing any other form of vicarious liability on the part of Ms. Bowie. Therefore, we find no error in the trial court's dismissal of Ms. Bowie as a party defendant at the close of the plaintiffs' case.
Concomitantly, we reach the same conclusion regarding Safeway. Although the trial court did not reach the permission issue, our examination of the record causes us to conclude that the plaintiffs established by a preponderance of the evidence that Mr. Simmons was driving with Ms. Bowie's permission. That being the case, Mr. Simmons was unquestionably an omnibus insured under the Safeway policy. However, for whatever reason, the plaintiffs did not sue Mr. Simmons or his legal representative. Therefore, Safeway was not sued in its capacity as the omnibus insurer of Mr. Simmons. The only issue before the trial court was whether Ms. Bowie was at fault. Thus, the resulting judgment finding no fault on Ms. Bowie's part had the effect of releasing Safeway from liability as well.
DISPOSITION
For these reasons, we affirm the judgment of involuntary dismissal with prejudice as to both Joann Bowie and Safeway Insurance Company of Louisiana. We assess all costs of this appeal to Omatu and Metra Barraka.
AFFIRMED.
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