104 So. 3d 93
La. Ct. App.2012Background
- In August 2005, Daniel Walley (driving) and Alisa Walley (passenger) on a Harley motorcycle were struck by Regina Vargas’s pickup as Daniel attempted a left turn onto Range Avenue at a traffic-signal intersection on Rushing Road, Denham Springs.
- Plaintiffs sued Vargas and Vargas’s insurer American Family Mutual Insurance Company for damages; trial by bench occurred June 29–30, 2011.
- Trial court found Daniel Walley solely at fault and credited Vargas/defendants with $10,000 against Daniel’s damages pursuant to a directed verdict on No Pay/No Play.
- Plaintiffs appealed raising seven assignments of error related to evidence rules, memory issues of an investigating officer, hearsay, trial procedure, and fault allocation.
- The appellate court affirms in part and reverses in part, reversing the $10,000 credit but affirming other trial court rulings where supported by law.
- The court conducts a de novo review only for consequential tainting errors and otherwise analyzes the trial court’s findings of fact for manifest error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the officer’s deposition could be used | Walley asserts Martello was unavailable under 804(A)(3) and deposition admissible under 1450 | Vargas/defendants argued deposition was not admissible and memory could not refresh/impeach | The court erred in not treating Martello as unavailable and in excluding deposition evidence |
| Whether memory refresh/impeachment were barred | Walley sought to refresh or impeach Martello with his deposition | Trial court barred refresh/impeach due to memory issues | Trial court erred by refusing to allow memory refresh/impeachment using the deposition |
| No Pay/No Play credit admissibility | Credit improperly granted without a prior order compelling discovery | Defense relied on No Pay/No Play provision | reversal of the $10,000 credit portion for failure to compel discovery |
| Vargas’s fault allocation | Walley argued Vargas failed to yield and engaged in high-risk left turn | Vargas contended she looked right and was not looking left; Walley allegedly crossed double yellow | Walley found 100% at fault in causing the accident; evidence supported trial court’s findings of fault |
Key Cases Cited
- Hukill v. State, DOTD, 896 So.2d 82 (La. App. 3rd Cir. 2004) (unavailability due to memory loss supports admissibility of deposition)
- Parrott v. Wilson, 707 F.2d 1262 (11th Cir. 1983) (deposition used when witness becomes unavailable; prior testimony admissible)
- United States v. Amaya, 533 F.2d 188 (5th Cir. 1976) (memory loss as basis for unavailability; admissibility of prior testimony)
- Simms v. Progressive Insurance Co., 888 So.2d 473 (La. App. 2nd Cir. 2004) (deposition use for impeachment/contradiction under Article 1450)
- Howell v. State Farm Mut. Auto. Ins. Co., 577 So.2d 344 (La. App. 1st Cir. 1991) (analysis of left-turn-from private drive and duty of care; precedential for fault allocation)
- Battaglia v. Texas Farmers Ins. Co., 732 So.2d 119 (La. App. 4th Cir. 1999) (burden of proof on intruding driver when entering favored roadway)
- Corvers v. Acme Truck Lines, 673 So.2d 1088 (La. App. 5th Cir. 1996) (duty analysis for intruding driver at left turn from private property)
- Migues v. Hebert, 640 So.2d 670 (La. App. 3rd Cir. 1994) (no-passing/left-turn lane formation considerations in fault analysis)