GREAT WEST CASUALTY CO., Kokesch Trucking, Inc., and Stan Koch & Sons, Inc. v. The STATE of Louisiana through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT Ralph Geier v. State of Louisiana through the Development of Transportation and Development.
No. 2006 CA 1776, 2006 CA 1777.
Court of Appeal of Louisiana, First Circuit.
March 28, 2007.
Rehearing Denied May 11, 2007.
960 So.2d 973
Before: PETTIGREW, DOWNING, and HUGHES, JJ.
Edward A. Shamis, Jr., Slidell, for Plaintiff-Appellee Ralph Geier.
John H. Ayres, III, Baton Rouge, for Defendant-Appellant the State of Louisiana through the Department of Transportation and Development.
PETTIGREW, J.
On March 31, 1991, Ralph Geier, a resident of Minnesota, was injured when the semi-tractor trailer truck he was operating on I-12 in Slidell, Louisiana, overturned as he attempted to exit onto the I-59 exit ramp. At the time of the accident, Mr. Geier was operating a truck owned by his employer, Kokesch Trucking, Inc. (“Kokesch“) and/or Stan Koch & Sons, Inc.
In a separate action, Mr. Geier filed suit against DOTD, alleging negligence and strict liability and seeking damages for past, present, and future mental and physical pain and suffering, past and future medicals, past and future lost wages, and permanent impairment of physiсal function and disability. Thereafter, the suits were consolidated, and a bench trial was conducted on June 28-29, 2005. After hearing the evidence, the trial court took the matter under advisement and, on September 28, 2005, issued reasons for judgment finding in favor of Mr. Geier. The trial court found that DOTD was fully responsible for the accident and awarded damages as follows: past medical expenses in the amount of $77,298.60; past lost wages in the amount of $222,282.72; and past pain and suffering in the amount of $300,000.00. The court also found in favor of Great West in the amount of $33,423.50 and in favor of Kokesch and Stan Koch in the amount оf $47,792.60. Judgments in accordance with the court‘s findings were signed on January 17, 2006, and January 18, 2006, respectively.1
DOTD has appealed, assigning the following specifications of error:2
1. The trial court erred in allowing plaintiffs recovery of damages subrogated to The Minnesota Department of Labor аnd Industry; the collateral source rule of damages has no application given the existence of a subrogation clause;
2. The trial court erred in apportioning fault to the DOTD and none to Plaintiff.3
For the reasons that follow, we affirm.
APPLICATION OF COLLATERAL SOURCE RULE
On appeal, DOTD argues that the trial court erred as a matter of law in its application
In response, Mr. Geier contends that the State of Minnesota chose to confer a gratuitous benefit upon him by paying his medical bills, lost wages, and disability benefits from the MDOL‘s Special Compensation Fund. Moreover, Mr. Geier asserts that in a letter dated April 25, 2002, MDOL evidenced its intent to waive any right to subrogation, stating “This letter is confirming that the [MDOL‘s] Special Compensation Fund, which has paid worker‘s compensation benefits to [Mr.] Geier related to this injury, will not be seeking reimbursement for benefits it has paid.” Thus, Mr. Geier maintains, the collateral source rule is аpplicable in this case, and the trial court‘s judgment should be affirmed. We agree.
The collateral source rule is of common law origin yet it is well-established in the jurisprudence of this state. Louisiana Dep‘t of Transp. and Dev. v. Kansas City Southern Ry. Co., 2002-2349, p. 6 (La.5/20/03), 846 So.2d 734, 739. Under the collateral source rule, a tоrtfeasor may not benefit, and an injured plaintiff‘s tort recovery may not be diminished, because of benefits received by the plaintiff from sources independent of the tortfeasor‘s procuration or contribution. Sutton v. Lambert, 94-2301, p. 14 (La.App. 1 Cir. 6/23/95), 657 So.2d 697, 706, writ denied, 95-1859 (La.11/3/95), 661 So.2d 1384.
According to Restatement (Second) of Torts § 920A (1979):
(1) A payment made by a tortfeasor or by a person acting for him to a person whom he has injured is credited against his tort liability, as are payments made by another who is, or believes he is, subject to the same tort liability.
(2) Payments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasоr‘s liability, although they cover all or a part of the harm for which the tortfeasor is liable.
Thus, a benefit that is directed to the injured party should not be shifted so as to become a windfall for the tortfeasor, and if the plaintiff was himself responsible for the benefit, as by maintaining his own insurance or by making аdvantageous employment arrangements, the law allows him to keep it for himself. See Restatement (Second) of Torts § 920A comment b.
Subrogation is an exception to the collateral source rule. See Sutton, 94-2301 at p. 15, 657 So.2d at 706-707. Thus, the collateral source rule is inapplicable where the right of subrogation is involved, even if the party subrogated does not appear to assert its subrogation rights and the defendants do not timely object to the nonjoinder of the necessary party. Id.
After hearing from the witnesses and considering the documentary evidence in the record, the trial court made the following findings concerning the application of the collаteral source rule:
Damages. Mr. Geier did not have personal health insurance nor did he have coverage provided by his employer. As a resident of Minnesota, he [benefited] from the Minnesota Dept. Of Labor and Industry‘s Special Compensation Fund which paid his medical expenses, lost wages and a lump sum for partial permanent disability. The Minnesota Department of Labor and Industry by letter dated April 25, 2003 declined to seek reimbursement for the benefits it paid to Mr. Geier.
The Supreme Court in La. DOTD v. Kansas City Southern Railway Co., 846 So.2d 734 (La.2003) and Bozeman v. State, 879 So.2d 692 (La.2004) discussed the Louisiana collateral source rule at length. Both cases deal with the ability of plaintiffs to receive amounts “written off” in the case of Medicaid payments (Bozeman) or Federal reimbursement for environmental cleanup (La. DOTD). The Court clearly describes the history of the collateral source rule and its goal that the tortfeasor not benefit as a result of payment by another source. In Bozeman, the court put limits on the amount which can be claimed under the rule but allowed collection of the full amount (including “write offs“) where the plaintiff was forced to reduce his patrimony in order to obtain the collateral source benefit. In the present case, Minnesota declined to seek reimbursement for amounts paid to Mr. Geier аfter initially reserving its rights to subrogation in a settlement dated October 2, 1991. Minnesota paid all Mr. Geier‘s medical and lost wage expenses and Mr. Geier‘s income tax returns reflect only that income and income from his part-time trucking work. Clearly, from the evidence presented and the Court‘s obsеrvance of Mr. Geier during his testimony, the collateral source rule is applicable in light of the Bozeman ruling.
Following a thorough review of the record and applicable law, we find no error in the trial court‘s findings in this regard. The MDOL Special Compensation Fund clearly had a statutory right of subrogation as set forth in
ALLOCATION OF FAULT
In its second assignment of error, DOTD argues the trial court was clearly wrong in assessing 100 percent of the fault against it. DOTD contends that Mr. Geier had a duty to exercise due diligence and keep a sharp and attentive lookout. Mr. Geier counters, noting that the evidence of DOTD‘s fault is overwhelming and that based on the manifest error standard of review, the trial court‘s findings should not be disturbed.
It is well settled that the allocation of fault is a factual matter within the sound discretion of the trier of fact and
After hearing the testimony of the witnesses and considering the applicable law, the court offered the following reasons for judgment concerning the allocation of fault:
This case rests largely on the crеdibility of one of the plaintiffs, Ralph Geier, and his account of the accident. The fact that this was an incredibly dangerous ramp from 1-12 to 1-59 cannot be seriously questioned. It failed to comply with the guidelines of AASHO and was notoriously dangerous to the knowledge of DOTD. The cloverleaf-style ramр had a compound curve with a much too sharp radius, made even more dangerous by a shoulder on which a rollover was almost a certainty once a truck drove onto its surface. Making the condition even more dangerous, the ramp had inadequate signage, and DOTD knew of the danger the posed to truckers. Though there was a slightly larger-than-usual ramp advisory speed sign for 25 mph, but that was it! There was no tipping-truck warning, no Warning Curve sign, no chevrons, and no special painting. The proper signage was most important to truckers who, like Mr. Geier, were unfamiliar with the ramp and the danger it posed.
The Court finds the testimony of Mr. Geier was extremely credible and worthy of belief. Mr. Geier acted properly, braking to or very near the advisory speed. When confronted with the sharpness of the compound curve, he traveled onto the paved shoulder and at that рoint the rollover became inevitable.
This accident was easily and very feasibly preventable by the mere placement of adequate signage and provision of an adequate and safe shoulder. DOTD did not choose these actions, though they could have done so for nеxt-to-nothing in the case of signage and for relatively little as to the shoulder. Instead, it took the personal tragedy suffered by Mr. Geier in order for DOTD to do what should have been done earlier. The Court finds DOTD to be fully responsible for this accident and the injuries suffered by the plaintiffs.
Having thoroughly reviewed the testimony concerning the accident, and mindful of the great deference we must afford the trier of fact, we cannot say the trial court‘s assessment of fault was in error. Considering the record in its entirety, we are satisfied that it reasonably supports the
CONCLUSION
For the above and foregoing reasons, we affirm the judgment of the trial court and assess appeal costs in the amount of $2,184.72 against DOTD. We issue this memorandum opinion in accordance with Uniform Rules—Courts of Appeal, Rule 2-16.1 B.
AFFIRMED.
PETTIGREW, J.