Flores v. Dibenedetto
Flores v. Dibenedetto
Opinion of the Court
Defendant/Appellant, Allstate Insurance Company, appeals the judgment of the district court in favor of Plaintiff/Appellee, Jorge Flores, awarding damages in the amount of $8,099.74. Following a review of the record, we affirm the judgment of the district court.
FACTS
On January 1, 1998, Mr. Flores was employed as a valet by Crescent Hotel. Mr. Paul Dibenedetto, one of the original defendants, was a guest of the hotel. Mr. Flores was called to bring Mr. Dibenedet-to’s Toyota 4-Runner to the hotel. Mr. Flores parked the right side of the vehicle adjacent to the sidewalk. Mr. Dibenedetto opened the rear hatch of the vehicle, and both parties placed Mr. Dibenedetto’s luggage in the back of the truck. Mr. Diben-edetto was positioned between Mr. Flores and the curb; Mr. Flores was on the left side of Mr. Dibenedetto. After the luggage had been placed in the vehicle, Mr. Flores walked between the rear of the 4-Runner and Mr. Dibenedetto. However, Mr. Dibenedetto was closing the hatch of the vehicle, and the hatch-door struck Mr. Flores on the head.
|2As a result of this accident, Mr. Flores filed a petition against Mr. Dibenedetto and his insurer, Omni Insurance Company (hereinafter “Omni”) and Allstate Insurance Company (hereinafter “Allstate”), Mr. Flores’ U/M insurer. Prior to trial, Mr. Flores, Mr. Dibenedetto, and Omni reached a settlement agreement in the amount of $9,500. The policy limit on the Omni policy was $10,000. Thereafter, Mr. Flores proceeded with his claim against Allstate.
At trial, the parties agreed to two stipulations: 1.) Allstate’s policy of uninsured
Mr. Flores filed a Motion for New Trial and/or Argument for Correction of Judgment. Without holding a contradictory hearing, the district court amended the judgment casting Allstate in judgment for the sum of $8,099.74. Allstate now seeks this appeal.
AMENDMENT OF JUDGMENT
Both parties argue that the district court should not have amended the judgment without conducting a contradictory hearing rendering the judgment null and void.
hLa. C.C.P. art. 1951 states that “[a] final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party: (1) To alter the phraseology of the judgment, but not the substance; or (2) To correct errors of calculation.” Further, “[cjhanging the name of a party cast in judgment is a substantive change prohibited by Code of Civil Procedure article 1951.” Harvey v. Traylor, 96-1321, p. 5 (La.App. 4 Cir. 2/5/97), 688 So.2d 1324, 1329. “A substantive change requires a contradictory proceeding.” Harvey v. Traylor, 96-1321, p. 5 (La.App. 4 Cir. 2/5/97), 688 So.2d 1324, 1329, citing, Tolmas v. Weichert, 616 So.2d 244 (La.App. 4 Cir. 1993), writ denied, 620 So.2d 878 (La. 1993). However, the Louisiana Supreme Court in Sonnier v. Liberty Mutual Insurance Company, 258 La. 813, 248 So.2d 299 (1971) held that in absence of a clear showing in motion for new trial of facts or law reasonably calculated to change outcome or reasonably believed to have denied plaintiff a fair trial, trial court properly denied the motion summarily without holding a contradictory hearing.
Merely correcting the spelling of the defendant’s name is considered a substantive change to the judgment; therefore changing the defendant’s name is a substantive change. Although the district court made a substantive change to the judgment, in light of Sonnier, the defendant must demonstrate that there were new issues of facts or law that would reasonably change the outcome of the case in order to compel the district court to hold a contradictory hearing prior to making said change. Allstate failed to make such a demonstration. Thus, a contradictory hearing by the district court was not warranted before changing the named defendants in the judgment, and the amended judgment is valid.
| ¿Although the judgment fails to expressly indicate whether the district court considered the $10,000 stipulation, the district court knew which defendant was left in the case and whose liability was in judgment. Additionally, the record reflects that during trial the district court acknowledged the $10,000 credit to Allstate in light of the Mr. Flores’ settlement
ALLOCATION OF FAULT
Additionally, Mr. Flores argues that the district court erred by assessing him with him fifty percent comparative fault in the accident. Courts of appeal may not disturb findings of fact unless they are clearly wrong or manifestly erroneous. Stobart v. State, through Department of Transportation and Development, 617 So.2d 880 (La. 1993). We do not find that the judgment of the district court reached the bar of manifest error or clearly wrong. It is reasonable for the district court to have concluded that Mr. Flores had the responsibility to look out for his own safety as much as it was Mr. Dibene-detto’s responsibility to take care not to harm anyone while closing the trunk to his vehicle.
DECREE
For the foregoing reasons, the amended judgment of the district court is hereby affirmed to cast Allstate in judgment for the full amount of the award.
AFFIRMED.
MURRAY, J., DISSENTS WITH REASONS.
Dissenting Opinion
dissents with reasons.
I respectfully disagree with the majority’s conclusion that the amended judgment of the district court can be reconciled to give effect to the trial court’s apparent intended relief. Although it expressly refers to Allstate’s liability for the full sum of $8,099.74 (which is the amount arrived at by reducing the total award by plaintiffs 50% comparative fault), the amended judgment fails to give Allstate credit for the $10,000 underlying policy limits. Since that credit must be given after the allocation of fault, and since the trial court refers to that amount as the full sum due by Allstate, it is impossible to reconcile the amended judgment with the trial court’s apparent intent. Accordingly, I would remand this case to the trial court for it to render a consistent judgment.
Reference
- Full Case Name
- Jorge Dagoverto FLORES, and His Wife, Amy Tirca Flores v. Paul Anthony DIBENEDETTO and ABC Insurance Company
- Cited By
- 1 case
- Status
- Published