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Maricle v. Liberty Mutual Insurance Co.3/2/2005
AFFIRMED.
Cooks, J., dissents and assigns written reasons.
This personal injury lawsuit arises from a two-vehicle accident which occurred in Allen Parish, Louisiana, at approximately noon on November 15, 1999. In the accident, Marilyn Maricle and her mother, Audrey McDaniel, sustained personal injuries. Ms. Maricle and Ms. McDaniel instituted suit to recover for their injuries, naming as defendants Donald Gene Dyer, the driver of one of the vehicles involved in the accident; Transwood Trucking Company (Transwood Trucking), Mr. Dyer's employer and the owner of the vehicle he was driving at the time of the accident; and Liberty Mutual Insurance Company (Liberty Mutual), the liability insurer of Transwood Trucking and Mr. Dyer. A jury trial resulted in a verdict in which the jury found that Mr. Dyer was without fault in causing the accident. Based on the jury's verdict, the trial court executed a judgment dismissing the plaintiffs' claims against all of the defendants. The plaintiffs appealed this judgment, asserting four assignments of error. For the following reasons, while we find merit in three of the plaintiffs' assignments of error and those findings mandate that we conduct a de novo review, we nevertheless reach the same conclusion as did the jury. Therefore, we affirm the trial court judgment.
DISCUSSION OF THE RECORD
The accident giving rise to this litigation occurred on U.S. Highway 165 (Hwy 165) a short distance north of Oakdale, Louisiana. At the place where the accident occurred, Hwy 165 is a straight and level two-lane highway running north and south. The travel lanes are each twelve feet wide, and the paved shoulders on each side of the highway are approximately nine feet wide. The centerline is dashed yellow line indicating that it is not a no passing zone.
Immediately before the accident, Ms. Maricle was driving north on Hwy 165 in a 1983 Dodge sedan, which was also occupied by Ms. McDaniel and Ms. Maricle's three small children. At the same time, Mr. Dyer was driving Transwood Trucking's tractor-trailer rig (eighteen-wheeler) north on Hwy 165 and was immediately behind two vehicles, with the lead vehicle of the two being Ms. Maricle's vehicle.
There is little dispute concerning certain aspects of the accident. The testimony of the witnesses and the exhibits in evidence establish that the impact between the two vehicles occurred as Mr. Dyer attempted to pass Ms. Maricle's vehicle at a time when Ms. Maricle was attempting to make a left turn from Hwy 165 onto Meyers Road. Ms. Maricle's vehicle was struck between the driver's door and the front bumper by the right outside tire of the front axle of the rear tandem of the eighteen-wheeler. The point of impact between the two vehicles was one to two feet across the centerline of Hwy 165 in the southbound lane. The photographs in evidence clearly show the scraping effect on the trailer tire and black marks on the fender of the Dodge. Additionally, photographs and eyewitness testimony place debris from Ms. Maricle's vehicle west of the centerline of the highway. The impact of the collision deflated the Dodge's left front tire, and the vehicle came to rest approximately thirteen feet from the point of impact, facing in a northwesterly direction entirely within the southbound lane of Hwy 165. Mr. Dyer parked his eighteen-wheeler on the shoulder of the northbound lane of Hwy 165 beyond the accident scene.
The principal facts in dispute involve the movement of the two vehicles at the moment of the collision. Ms. Maricle, Ms. McDaniel, and Mr. Dyer gave direct testimony regarding the particulars of the accident, as did two independent eyewitnesses to the accident, Allen
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