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Moraus v. Frederick11/2/2005
Court composed of Glenn B. Gremillion, J. David Painter, and James T. Genovese, Judges.
AFFIRMED IN PART AS AMENDED; REVERSED IN PART; AND RENDERED.
This is an automobile accident case where the Defendant UM carrier appeals the trial court's judgment finding the Plaintiff only 20% at fault. Plaintiff answered the appeal seeking additional attorney's fees as damages for a frivolous appeal. We amend the trial court's allocation of fault, reduce the future general and special damage awards, and deny the Plaintiff's request for damages for frivolous appeal.
FACTS
This suit arises out of a motor vehicle accident which occurred on July 2, 2003, in Ascension Parish. The accident occurred on U.S. Highway 61, also known as Airline Highway, which is a four-lane roadway with two lanes of travel each for vehicles traveling north and south and a grassy median dividing the north and southbound lanes. Immediately before the accident, Plaintiff, Joseph Moraus ("Moraus"), was proceeding north on Airline Highway and decided to execute a "u-turn" from the northbound lanes at a designated crossover. Defendant, Jennifer Frederic ("Frederic"), was proceeding in a southerly direction on Airline Highway when Moraus crossed the inside southbound lane and turned left into the outside southbound lane. Either immediately or soon thereafter, which is not apparent from the record, Moraus allegedly attempted to merge left into the inside southbound lane. The physical evidence indicates that the right side of Frederic's vehicle collided with the left side of Moraus' vehicle.
As a result of this accident, Moraus, a domiciliary of Avoyelles, filed this personal injury suit against Frederic and her liability insurer, State Farm Mutual Automobile Insurance Company ("State Farm"), and also his uninsured/underinsured ("UM") motorist carrier, Imperial Fire and Casualty Insurance Company ("Imperial").
Prior to trial, Moraus settled with Frederic and State Farm, thereby leaving only his UM claim against Imperial.
On December 15, 2004, the unresolved UM claim was tried before the court pursuant to bench trial. In order to expedite the proceedings, counsel for the parties submitted into the record the accident report, all medical records, the deposition testimony of Moraus and Frederic, insurance documentation, and stipulated to Moraus' medical bills in the amount of $3,828.04. In oral reasons for judgment, the trial court found Frederic 80% at fault and Moraus 20% at fault in causing the accident. Moraus was awarded damages for past and future medical expenses, past and future pain and suffering, legal interest from the date of judicial demand, court costs and deposition fees.
Imperial appeals the "80-20" allocation of fault and the total amount of $50,328.00 in general and special damages as being excessive for a soft tissue injury . Moraus answered the appeal to assert that he is entitled to damages for Imperial's filing of a frivolous appeal.
ISSUES
The issues before us are:
(1) whether the trial court erred in the assessment of fault between Moraus and Frederic;
(2) whether the trial court abused its discretion in awarding a total of $50,328.00 in damages for Moraus' injuries; and
(3) whether this appeal is frivolous entitling Appellee/Moraus to damages pursuant to La.Code Civ. P. art. 2164.
LAW AND DISCUSSION
Allocation of Fault
Imperial contends that the trial court was manifestly erroneous in its assessment of only 20% fault to the Plaintiff. It argues that Moraus drove his vehicle from an inferior position on the roadway dire
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