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NOT DESIGNATED FOR PUBLICATION
DONNA DUCOTE                                                                    *   NO. 2009-CA-0394
VERSUS                                                                          *
                                                                                    COURT OF APPEAL
DELMA L. MURRAY,                                                                *
CHERYL SAIA AND                                                                     FOURTH CIRCUIT
ALLSTATE INSURANCE                                                              *
COMPANY                                                                             STATE OF LOUISIANA
*
APPEAL FROM
ST. BERNARD 34TH JUDICIAL DISTRICT COURT
NO. 106-087, DIVISION “C”
Honorable Wayne Cresap, Judge
Judge Terri F. Love
(Court composed of Judge Patricia Rivet Murray, Judge Michael E. Kirby, Judge
Terri F. Love)
Michael C. Ginart, Jr.
Richard A. Tonry
Kim C. Jones
Cullen A. Tonry
Jeremy K. Lee
LAW OFFICE OF TONRY & GINART, LLC
2114 Paris Road
P. O. Box 32
Chalmette, LA 70044--0032
COUNSEL FOR DONNA DUCOTE
Paul A. Tabary III
Elizabeth R. Borne
DYSART & TABARY, L.L.P.
3 Courthouse Square
Chalmette, LA 70043
COUNSEL FOR ALLSTATE INSURANCE
REVERSED
AUGUST 5, 2009




This appeal arises from a collision involving three automobiles.   The trial
court found the middle automobile thirty-three percent liable for the accident when
the driver testified that she was at a complete stop prior to the collision.   We find
that the trial court committed manifest error by holding the driver of the middle car
liable and reverse.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On November 10, 2004, Donna Ducote (“Ms. Ducote”) was driving on St.
Bernard Highway in Chalmette, Louisiana.    Ms. Ducote was driving the lead
automobile and was stopped at a red light.   The second automobile was operated
by Cheryl Saia  (“Ms. Saia”), who was insured by Allstate Insurance Company
(“Allstate”).   The third automobile, operated by Delma L. Murray (“Mr. Murray”),
who was not insured at the time of the accident, struck Ms. Saia’s automobile,
which then struck Ms. Ducote’s automobile.
Ms. Ducote filed a petition for damages against Mr. Murray, Ms. Saia, and
Allstate.   Allstate filed an exception of prescription, which the trial court denied.
Following a brief bench trial, the trial court awarded Ms. Ducote damages as
follows:
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General damages:                                                                            $15,000
Special Damages:                                                                            $3,600
TOTAL:                                                                                      $18,600
The trial court held Mr. Murray sixty-seven percent liable and Ms. Saia/Allstate
thirty-three percent liable.    Allstate filed a motion for a new trial because the
original judgment was rendered against Ms. Saia although she was not served and
alleged that no testimony proved the alleged negligence of Ms. Saia.   The trial
court amended the judgment to hold Allstate thirty-three percent liable as the
insurer of Ms. Saia.   Allstate’s suspensive appeal followed.
STANDARD OF REVIEW
Appellate courts review findings of fact using the manifest error or clearly
wrong standard.    Arias v. Stolthaven New Orleans, L.L.C.,  08-1111, p.  5  (La.
5/5/09), 9 So. 3d 815, 818.                                                                 “When the factual findings are based on the credibility
of witness testimony, the appellate court must give great deference to the fact
finder’s decision to credit witness testimony.”   Kees v. Kees, 08-0124, 08-0125, p.
7 (La. App. 4 Cir. 8/13/08), 992 So. 2d 568, 571.   However, “[t]o substantiate
reversal, the appellate court must find from the record that there is no reasonable
factual basis for the finding of the trial court and that the record establishes that the
finding is clearly wrong (manifestly erroneous).”   Watts v. Watts, 08-0834, pp. 2-3
(La. App. 4 Cir. 4/8/09), 10 So. 3d 855, 857-58.
If the trial court’s holding is based on the erroneous application of law, then
the appellate court must review the record using the de novo standard.   Lucas v.
Tenet Health Sys. Hosp., Inc., 01-2219, p. 2 (La. App. 4 Cir. 5/1/02), 818 So. 2d
269, 270-71.
MS. SAIA’S ALLEGED NEGLIGENCE
“The driver of a motor vehicle shall not follow another vehicle more closely
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than is reasonable and prudent, having due regard for the speed of such vehicle and
the traffic upon and the condition of the highway.”   La. R.S. 32:81(A).   The “driver
of  a  following  vehicle  must  keep  his  vehicle  under  control,  follow  at  a  safe
distance and carefully observe the forward vehicle; and if a rear-end accident
occurs the driver of the following vehicle is generally presumed to be negligent.”
Coates v. Marcello, 235 So. 2d 162, 163 (La. App. 4th Cir. 1970).   The burden
then shifts to the driver of the following automobile to “exonerate herself from any
negligence.”   Dolmo v. Williams, 99-0169, p. 3 (La. App. 4 Cir. 9/22/99), 753 So.
2d 844, 846.   However, “where other vehicles are able to stop behind the lead car,
the last car which precipitates the chain reaction collision is negligent.”   Staehle v.
Marino, 201 So. 2d 212, 214 (La. App. 4th Cir. 1967).
Ms. Ducote testified at trial, “all I remember is somebody ran into me.”   She
stated that she does not remember if there were one or two impacts or if there was
any skidding.    On cross examination, she testified that she did not remember
stating in her interrogatories1 that the only reason Ms. Saia struck her was because
Mr. Murray struck Ms. Saia.   Additionally, on cross, she blamed the police for her
contradictory deposition testimony, stating that Ms. Saia struck her because Mr.
Murray struck Ms. Saia so hard.    Finally, she testified that she now does not
remember how the accident happened.
Ms.  Saia  testified  that  her  automobile  was  stopped  at  the  red  light
approximately one-half car length behind Ms. Ducote when Mr. Murray struck her
and caused her to “bump” Ms. Ducote.   She reiterated and emphasized that her
automobile was at a complete stop.
1 The interrogatories referred to were propounded upon Ms. Saia by Allstate.   Ms. Ducote was asked to describe the
accident in her own words and she stated: “I was sitting at a red light and the car behind me hit me because the car
behind her hit her so hard.”
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The trial court found Ms. Saia thirty-three percent at fault because it found
Ms. Ducote to be a credible witness.   The trial court also stated that Ms. Saia
should have taken necessary precautions to stop a safe distance away from Ms.
Ducote.
However, a review of the record reveals that Ms. Saia met her burden of
overcoming the presumption of negligence.   Ms. Saia testified that her automobile
was at a complete stop at least a half a car length behind Ms. Ducote prior to the
impact of Mr. Murray’s automobile.    Ms. Ducote, on cross examination, was
confronted with the fact that she stated, in her answers to Allstate’s interrogatories,
that the only reason Ms. Saia struck her automobile was because Mr. Murray
struck Ms. Saia in the answers to Allstate’s interrogatories.    Although, in her
deposition, Ms. Ducote tried to blame this recitation of the facts the police, it was
again reinforced that she initially stated that the cause of the accident was Mr.
Murray.   At trial, Ms. Ducote claimed that she no longer remembered how the
accident happened.   Accordingly, we find that the trial court committed manifest
error in attributing thirty-three percent of the fault for the accident to Ms. Saia, as
the record is devoid of evidence of her negligence.
DECREE
For the above mentioned reasons, we find that the trial court committed
manifest error when it found Ms. Saia thirty-three percent liable for the collision,
as the record reflects that she was at a complete stop at the time of the collision.
Accordingly, we reverse the decision of the trial court and find that Ms. Saia was
not at fault in the accident and that Allstate, as her insurer, is not assessed liability.
REVERSED
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