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Judgment rendered August 8, 2012. Application for rehearing may be filed within the delay allowed by art. 2166, La. C.C.P.

No. 47,368-CA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

***** DELORES KING Plaintiff-Appellee

Versus

STATE FARM INSURANCE CO. AND HAROLD E. WHITLOCK *****

Defendants-Appellants

Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 2004-5039 Honorable Alvin R. Sharp, Judge ***** HAMMONDS & SILLS By: Neal L. Johnson, Jr. Counsel for DefendantsAppellants State Farm Mutual Automobile Insurance Company and Harold Whitlock Counsel for PlaintiffAppellee Delores King

NEWMAN & OLIVEAUX, LLP By: Todd G. Newman Trey N. Magee COTTON, BOLTON, HOYCHICK & DOUGHTY By: John B. Hoychick

Counsel for Defendants-in Reconvention/Appellees Delores King and Louisiana Farm Bureau Casualty Insurance Company

***** Before STEWART, GASKINS and MOORE, JJ.

GASKINS, J. This case involves a three-vehicle accident. The defendant driver, Harold E. Whitlock, was involved in an initial crash with a truck that caused his car to spin. He then collided with a car driven by the plaintiff driver, Delores King. Mr. Whitlock and his insurer, State Farm Mutual Automobile Insurance Company, appeal from a trial court judgment finding that Ms. King was not at fault and awarding her general damages of $30,000 for her broken foot. We affirm. FACTS At about 6:50 a.m. on November 19, 2003, Mr. Whitlock was traveling east on Highway 34 in Ouachita Parish in his Dodge Intrepid. He was involved in an accident with an F450 Ford flatbed truck driven by Robert Williams. Mr. Williams was struck from the rear by Mr. Whitlock. Ms. King, who was also driving east on Highway 34 in her Toyota Camry, saw the initial accident and attempted to avoid it by braking and driving on the shoulder. However, as a result of his collision with Mr. Williams' truck, Mr. Whitlock's car turned counterclockwise and ended up on the shoulder of the highway in her path at a 45-degree angle. Ms. King was unable to stop in time and struck Mr. Whitlock's car on the driver's side. Mr. Whitlock was the only motorist cited by the trooper who investigated the accident; he was given a citation for careless operation under La. R.S. 32:58. On November 18, 2004, Ms. King filed suit against Mr. Whitlock and State Farm. She claimed that the initial accident was the result of Mr. Whitlock hitting the rear of the vehicle in front of him. This, in turn, caused

his car to turn to a 45-degree angle, ultimately resulting in the collision with Ms. King's car. On April 18, 2005, the defendants filed an answer in which they claimed that Ms. King was 100 percent at fault in the collision; they also pled the sudden emergency doctrine. They also asserted a reconventional demand against her and her insurer, Louisiana Farm Bureau Casualty Insurance Company, alleging that Mr. Whitlock's wife and passenger, Eva, was injured and required medical attention as a result of Ms. King's negligence. In their answer to the defendants' reconventional demand, Ms. King and Louisiana Farm Bureau alleged that the accident was the fault of either Mr. Whitlock or Mr. Williams, who caused an emergency situation by pulling out in front of Mr. Whitlock. Additionally, Ms. King and Louisiana Farm Bureau filed a reconventional demand against Mr. Whitlock and State Farm in which claims were made for the amounts Louisiana Farm Bureau had expended on medical payments and property damage. The defendants filed a general denial to these claims. The matter was tried on August 24, 2011. Ms. King and Kirk Knowles, the Louisiana state police trooper who responded to the accident, testified on behalf of the plaintiff. Ms. King testified that as soon as she saw Mr. Whitlock apply his brakes, she began to brake also and that she tried to avoid the Whitlock car by going onto the shoulder. However, the evasive maneuver was unsuccessful due to the spinning of the Whitlock car. As a result of the accident, Ms. King sustained a broken foot, which was

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very painful and required her to use a walking boot and/or crutches for six to eight weeks. While her injury did not compromise her ability to do her work as a school paraprofessional, it restricted some of her other activities. According to Ms. King, she still suffers pain in her foot depending upon the weather and her activities. Trooper Knowles testified that, based upon his investigation, Mr. Whitlock was the only person he cited for the accident. According to measurements taken by the trooper at the scene after the accident, the collision occurred 152 feet east of the intersection of Highways 34 and 3033. The defendants presented the trial testimony of Paige Nell, a State Farm adjuster who took some measurements and photos at the accident scene several years after the accident, and the deposition of Mr. Williams, who estimated that Mr. Whitlock hit him 100 yards past the intersection of Highways 34 and 3033. Mr. Whitlock did not testify; his attorney stated that over the years he had lost contact with him. At the end of trial, the judge took the matter under advisement. On October 25, 2011, the trial court issued a written ruling and judgment. The court found Mr. Whitlock 100 percent at fault and Ms. King free of fault. Specifically, the court concluded that after encountering the Williams truck, the Whitlock vehicle turned counterclockwise and went onto the shoulder of the road in the path of the King car. Despite Ms. King's efforts to make an evasive maneuver, she hit the Whitlock car. As a result of the accident, Ms. King suffered a broken foot and ligament injuries. The court found that at the time of trial, seven years later, Ms.

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King still experienced some pain and "labored with the possibility of permanent pain." The court awarded Ms. King the following: medical bills, $3,485.37; property damage, $1,192.36 and $2,336.29; and general damages, $30,000. Costs were assessed against State Farm. State Farm and Mr. Whitlock appeal. ALLOCATION OF FAULT Law A trial court's findings of fact will not be disturbed on appeal unless the reviewing court finds that they are clearly wrong or manifestly erroneous. Stobart v. State through Department of Transportation and Development, 617 So. 2d 880 (La. 1993); Holland v. State Farm Mutual Automobile Insurance Company, 42,753 (La. App. 2d Cir. 12/05/07), 973 So. 2d 134. To reverse a fact finder's determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart, supra. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse, even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Stobart, supra. Where two permissible views of the evidence exist, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Stobart, supra; Rosell v. ESCO, 549 So. 2d 840 (La. 1989). Further, when findings are based on determinations regarding credibility of witnesses, the

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manifest error-clearly wrong standard demands great deference to the trier of fact's findings. Rosell v. ESCO, supra. A well established presumption exists that, in rear-end collisions, the following driver breached the standard of care set out in La. R.S. 32:81 and is presumed negligent.1 Mart v. Hill 505 So. 2d 1120 (La. 1987); Ebarb v. Matlock, 46,243 (La. App. 2d Cir. 5/18/11), 69 So. 3d 516, writ denied, 2011

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