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NOT DESIGNATED FOR PUBLICATION
DORIS HARVEY, NICHOLAS                                                         *   NO. 2012-CA-1131
PORTER, INDIVIDUALLY
AND ON BEHALF OF NOLAN                                                         *
PORTER AND ALFRETTA                                                                COURT OF APPEAL
HARVEY, INDIVIDUALLY                                                           *
AND ON BEHALF OF                                                                   FOURTH CIRCUIT
JOEKOBI HARVEY                                                                 *
STATE OF LOUISIANA
VERSUS                                                                         *
IMPERIAL FIRE AND
CASUALTY INSURANCE
COMPANY AND COREY
WASHINGTON
APPEAL FROM
FIRST CITY COURT OF NEW ORLEANS
NO. 2008-52371, SECTION ―B‖
Honorable Angelique A. Reed, Judge
Judge Roland L. Belsome
(Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge
Rosemary Ledet)
Louis A. Gerdes, Jr.
1739 St. Bernard Avenue
New Orleans, LA 70116-2244
COUNSEL FOR PLAINTIFF/APPELLEE
Paul D. Oberle, Jr.
Byron A. Richie
RICHIE RICHIE & OBERLE, L.L.P.
1800 Creswell Avenue
P. O. Box 44065
Shreveport, LA 71134-4065
COUNSEL FOR DEFENDANT/APPELLANT
AMENDED AND AFFIRMED
JANUARY 23, 2013




NOT DESIGNATED FOR PUBLICATION




In this appeal, Imperial Fire & Casualty Insurance Company (Imperial)
seeks review of the judgment of the trial court awarding damages to the plaintiffs.
For the following reasons, we amend the judgment and affirm as amended.
The plaintiffs, Doris Harvey, her daughter Alfretta Harvey, and Alfretta’s
children, Nicholas Porter, Nolan Porter, and Joekobi Harvey, filed a petition for
damages alleging that they were injured as the result of an accident which occurred
in the parking lot of Lowe’s.  The petition alleged that the defendant rear-ended the
vehicle occupied by the plaintiffs as the plaintiffs traveled in the parking lot of
Lowe’s.
On the morning of trial, the individual claims of Alfretta Harvey were
voluntarily dismissed; she remained a party only on behalf of her minor children.
Defendant Corey Washington was also voluntarily dismissed since he was not the
driver of the vehicle.  Several stipulations were entered into prior to trial: 1) the
vehicle insured by Imperial was driven by a permissive user, 2) the policy provided
limits of $10,000.00 per person/$20,000.00 per accident, and 3) the plaintiffs’
medical records were submitted and entered into evidence.
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Doris Harvey testified that on September 5, 2007, she accompanied her
daughter, Alfretta, to Lowe’s.  Mrs. Harvey stated that she was in the front
passenger seat, and that Alfretta’s minor children, Nicholas, Nolan, and Joekobi,
were in the rear seat of the vehicle.  She further testified that Alfretta parked the
vehicle, and went inside of Lowe’s.  Mrs. Harvey and the children remained in the
vehicle.  While in the parked vehicle, Mrs. Harvey stated that another car backed
into their vehicle causing a ―jolt.‖  She said that following the collision two men
exited the other vehicle, approached Alfretta’s parked vehicle, threatened her, and
made her write a note.  The note provided, ―I Doris Back up at Lowe’s Blue Chev
Truck.‖  Mrs. Harvey denied driving Alfretta’s vehicle on the day of the accident.
After the accident, Mrs. Harvey received three months treatment for injuries
related to the incident.
On cross-examination, Imperial questioned Mrs. Harvey about her
deposition testimony.  During her deposition, she had testified that on day of the
accident they had turned into Lowe’s, Alfretta stopped in the parking lot, getting
ready to turn, and they were rear-ended.  Later in the deposition, Mrs. Harvey
stated that she was driving the vehicle at the time of the accident, and that Alfretta
was in Lowe’s.  She asserted that the men from the other vehicle threatened her
while the grandchildren were in the car, and that she was afraid of the men.  At that
point in the deposition, Mrs. Harvey stated that she wrote what the occupants of
the other vehicle told her to write on the note, but she adamantly denied driving
Alfretta’s vehicle.  This was consistent with her responses to questioning at trial;
Mrs. Harvey stated numerous times that Alfretta’s vehicle was parked when
someone hit it, and that she was threatened into writing a note.
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During Nicholas’ testimony, he stated that he was fourteen at the time of the
accident, and nineteen at the time of trial.  Nicholas revealed that the accident
occurred while the vehicle was parked in the Lowe’s parking lot.  Nicholas
confirmed that his grandmother was in the front passenger seat, and that he and his
brothers were in the backseat.  Nicholas also placed Alftretta inside of Lowe’s at
the time of the accident.  He testified that once his mother parked the vehicle, the
vehicle was not moved again.    He claimed that he felt a ―jerk‖ after being hit by
the other vehicle and he received three months of treatment for his injuries.
Nicholas recalled that the men that hit Alfretta’s vehicle asked his grandmother to
write a note.  Nicholas did not know the provisions of the note.
Alfretta testified that she was not in the vehicle at the time of the accident in
the Lowe’s parking lot.  Although she was named on the petition as a plaintiff, she
claimed that she told the attorney she was not in the vehicle at the time of the
accident.  When Alfretta was questioned about her deposition testimony, Alfretta
stated that she did not remember her deposition testimony wherein she stated that
the vehicle was stopped when struck by another vehicle.  During trial, Alfretta
stated numerous times that the vehicle was parked, and that she was in Lowe’s
when the vehicle was struck.  Alfretta testified that she spoke with the men after
exiting Lowe’s, and was informed that they did not see her vehicle as they backed
up out of the parking spot.  The trial court noted that Alfretta’s deposition
testimony was not consistent with her trial testimony.
Imperial submitted the deposition testimony of Troy Lawrence.  Mr.
Lawrence believed he was in the vehicle with Eric Washington not Corey
Washington and recalled that their vehicle was at a stop when Alfretta’s vehicle
backed up into it.  Mr. Lawrence stated that the accident was just a bump, and
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resulted in a dent in the bumper.  He testified that Mrs. Harvey was not threatened
when she wrote the note in his presence.  Mr. Lawrence stated that she was in the
vehicle by herself.  He further claimed that after a few moments Alfretta came out
of Lowe’s with her children.
Once the trial was concluded, the trial court rendered judgment in favor of
the plaintiffs.  The awards were as follows: Doris Harvey $6,000.00 in general
damages, and $1,775.00 in special damages;    Nicholas Porter $5,000.00 in general
damages and $1,705.00 in special damages; Nicholas Porter on behalf of Nolan
Porter1, $4,000.00 in general damages and $1,335.00 in special damages; and
Lastly, Alfretta Harvey, on behalf of Joekobi Harvey, $750.00 in general damages
and $820.00 in special damages.  This appeal followed.
On appeal Imperial raises two assignments of error: 1) that the trial court
was manifestly erroneous in its findings of fact regarding how the accident
occurred and 2) the trial court erred in awarding $21,385.00 against Imperial when
the parties stipulated to $20,000.00 in coverage.
STANDARD OF REVIEW
Appellate courts review both fact and law.  However, it is well-settled that
the applicable standard of review for a factual finding is the manifestly erroneous
or clearly wrong standard.  S.J. v. Lafayette Parish School Bd., 2009-2195, p.13
(La. 7/6/10), 41 So.3d 1119, 1128.  It is equally well-settled that an appellate court
may not set aside a trial court's finding of fact in the absence of manifest error or
unless it is clearly wrong.  Further, where two permissible views of the evidence
exist, the fact finder's choice between them cannot be manifestly erroneous or
1 The judgment erroneously names Nicholas Porter rather than Alfretta Harvey as suing on behalf of the minor
Nolan Porter.
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clearly wrong.  Cole v. State Department of Public Safety & Corrections, 2001-
2123, p. 13-14 (La. 9/4/02), 825 So.2d 1134, 1144, citing Stobart v. State through
Dept. of Transp. and Dev., 617 So.2d 880 (La.1993).  As the S.J. Court stated,
―[i]n applying the manifestly erroneous—clearly wrong standard to the findings ...
appellate courts must constantly have in mind that their initial review function is
not to decide factual issues de novo.‖  Id., p.13, 41 So.3d at 1128, quoting Rosell v.
ESCO, 549 So.2d 840, 844 (La. 1989).  Therefore, under this standard of review, in
order to reverse a factfinder's determination, ―an appellate court must undertake a
two-part inquiry: (1) the court must find from the record that a reasonable factual
basis does not exist for the finding of the trier of fact; and (2) the court must further
determine the record establishes the finding is clearly wrong.‖  Id., p.12, 41 So.3d
at 1127.    As the Louisiana Supreme Court concisely stated in Rosell, ―[w]hen
findings are based on determinations regarding the credibility of witnesses, the
manifest error-clearly wrong standard demands great deference to the trier of fact's
findings.‖   549 So.2d at 844, see also Sassone v. Doe, 2011-1821, pp.3-4, (La.
App. 4 Cir. 5/23/12), 96 So.3d 1243, 1246.
First, Imperial argues that the trial court committed manifest error in finding
that the accident occurred when Mrs. Harvey and her grandchildren were seated in
Alfretta’s parked vehicle.  Imperial concluded that the numerous versions of how
the accident occurred rendered Mrs. Harvey’s testimony unworthy of belief.
In support of their argument that her story is internally inconsistent, Imperial cited
to the facts set forth in the petition for damages, which states that Alfretta was
driving at the time of the accident.  Imperial also relies on Mrs. Harvey’s
deposition testimony, which also stated that Alfretta was driving the vehicle when
it was stuck.  Additionally, Mrs. Harvey’s medical records and Mr. Lawrence’s
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deposition testimony indicate that she was driving at the time of the accident, as
evidenced by the note she signed.
Although Mrs. Harvey’s testimony differed from her deposition, the trial
court found her testimony at the time of trial to be credible.  We agree that her
testimony at trial differed from her deposition testimony.  However, the transcript
reveals that Mrs. Harvey’s trial testimony was consistent in describing the accident
and that account of the accident was corroborated by Nicholas Porter’s testimony.
Furthermore, she acknowledged that she wrote the note, but under duress and
intimidation by the men in the other vehicle. As for the petition and medical
record, neither was prepared by Mrs. Harvey.
The documentary evidence presented was itself contradictory, but the
testimony given at trial was consistent except for Mr. Lawrence who testified via
depostion.2  The trial court decided to credit the testimony of Mrs. Harvey and
Nicholas.  From the record before this Court, we cannot say that the trial court was
manifestly erroneous in its findings.
In the second assignment of error, Imperial argues that the trial court erred in
awarding damages over the stipulated policy limits.  The parties stipulated that
Imperial’s policy provided coverage in the amount of $10,000.00 per person,
$20,000.00 per accident.  The trial court awarded the plaintiffs a total of
$21,385.00, $1,385.00 over the policy.  Thus, this assignment of error has merit.
Accordingly we will reduce the amounts of general damages awarded pro
rata.  Subtracting the award for medical damages from the medical expenses
leaves a total of $14,365.00.  Of the $14,365.00, we will award Doris 38%
2 The driver of the other vehicle, Eric Washington, did not testify at all.
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($5,458.70), Nicholas 32% ($4,596.80), Nolan 26% ($3,734.90), and Joekobi 4%
($574.60).  The award of medical damages will remain unchanged.  See Gonzales
v. Bordelon, 595 So.2d 761, 765 (La. App. 4 Cir. 1992).
Thus, the judgment of the trial court is amended to award Doris Harvey
general damages in the amount of $5,458.70; to award Nicholas Porter general
damages in the amount of $4,596.80; to award Alfretta Harvey, on behalf of Nolan
Porter, general damages in the amount of $3,734.90; and to award Alfretta Harvey,
on behalf of Joekobi Harvey, general damages in the amount of $574.60.  In all
other respects, the judgment of the trial court is affirmed.
AMENDED AND AFFIRMED
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