United States District Court,

D. Colorado.

SHAMROCK TAXI OF FORT COLLINS, INC., Plaintiff,

v.

NORTH AMERICAN SPECIALTY INSURANCE COMPANY, a New Hampshire corporation

licensed to do business in the State of Colorado, Defendant, Counterplaintiff,

NORTHLAND INSURANCE COMPANY, a Minnesota corporation licensed to do business in

the State of Colorado, Defendant,

SHAMROCK TAXI OF FORT COLLINS, INC., Shamrock Charters, Inc. Wymond Leon

Essman, Rhonda Jeanne Burry, James Burry, and Jacqueline Cotterell,

Counterdefendants.

No. 05-CV-00218-LTB-MJW.

 

March 22, 2006.

 

ORDER

 

BABCOCK, Chief J.

 

This case is before me on Defendant Northland Insurance Company’s  (“Northland”) Motion for Summary Judgment. Oral argument would not materially assist in determination of the motion. After consideration of the motion, related pleadings, and the case file, I grant the motion for the reasons set forth below.

 

I. Facts and Other Background

This declaratory judgment action arises out of a May 14, 2003 accident (the  “Accident”) involving a taxi cab owned and operated by Plaintiff Shamrock Taxi of Fort Collins, Inc. (“Shamrock”) that claimed the life of Michael James Burry. As a result of the Accident, Counterdefendants Rhonda Jeanne Burry, James Burry, and Jacqueline Cotterell commenced a wrongful death action in the District Court for Larimer County, Colorado (the “State Court Action”). At issue in this case is the insurance coverage available for the Counterdefendants’ claims under liability policies issued by Northland and Defendant and Counterplaintiff North American Specialty Insurance Company (“North American Specialty”).

 

The following undisputed facts and controlling regulatory authority have been derived from the pleadings and exhibits filed in connection with both Northland and North American Specialty’s motions for summary judgment. Unless otherwise noted, all facts relate to the date of the Accident.

 

1. Shamrock was the owner and operator of three types of common carrier vehicles: (1) taxi cabs; (2) shuttle vans; and (3) luxury limousines. All of these vehicles were operated pursuant to Certificates of Public Convenience and Necessity issued by the Public Utilities Commission for the State of Colorado (“the Colorado PUC”). More specifically, Shamrock’s taxi cabs were operated pursuant to permit numbers 13043, 29934, 45391, 9256, and 545 and I; its shuttle vans were operated pursuant to permit number 49759; and its limousines were operated pursuant to permit number LL-256. Further, Shamrock’s shuttle vans were operated under the name of “Shamrock Taxi of Fort Collins, Inc., d/b/a Shamrock Shuttle” (“Shamrock Shuttle”), and its limousines were operated under the name of “Shamrock Taxi of Fort Collins, Inc., d/b/a Shamrock Luxury Limousine” (“Shamrock Limousine”). All of Shamrock’s transportation services were operated out of the same physical location under the management of Tom Hofman (“Hofman”).

 

2. The Colorado PUC regulations require common carriers to carry liability insurance for bodily injury and property damage with certain minimum limits “covering all vehicles which may be operated by or for, or which may be under the control of the carrier.” 4 Colo.Code Regs. §  723-31-12.1. See also 4 Colo.Code Regs. §  723-33, Rule 6307 (establishing same requirements for luxury limousines). As applicable here, these regulations required Shamrock to maintain $500,000 in liability coverage for its taxi cabs and $1,000,000 in liability coverage for its luxury limousines and shuttle vans. Id. at §  723- 31-12.4 & §  723-33, Rule 6307(b). The Colorado PUC regulations further require common carriers to file a Form E Uniform Motor Carrier Bodily Injury and Property Damage Liability Certificate of Insurance (“Form E”) executed by a duly authorized agent of the insurer certifying that they are in compliance with the liability insurance requirements. Id. at §  723-31-12.3 & §  723- 33, Rule 6307(f). The Form E must be filed with the exact name, trade name, and address as shown in the records of the Colorado PUC. Id. at §  723-31- 12.3.1 & §  723-33, Rule 6307(g).

 

3. North American Specialty issued two liability policies that are at issue in this case. The first of these policies, policy number CEA0000207-00 (the “North American Specialty Taxi Policy”), provided coverage in the amount of $500,000 and specifically listed Shamrock’s taxi cabs, including that involved in the Accident, as covered vehicles. It is undisputed that there is coverage for the Counterdefendants’ claims under the North American Specialty Taxi Policy, and North American Specialty is currently defending Shamrock in the State Court Action pursuant to this policy.

 

4. The second North American Specialty policy, policy number CEA0000206-00  (the “North American Specialty Shuttle Policy”) was issued to Shamrock Shuttle. This policy provided coverage in the amount of $1,000,000 and specifically listed Shamrock’s shuttle vans as covered vehicles. In obtaining the North American Specialty Shuttle Policy, Shamrock sought coverage for those vehicles operated under permit number 49759. The North American Specialty Shuttle Policy did not list the taxi cab involved in the Accident as a covered vehicle, and North American Specialty denies that there is coverage for the Counterdefendants’ claims under this policy.

 

5. Consistent with the Colorado PUC regulations, North American Specialty filed two Form Es with the Colorado PUC. The Form E filed with respect to the North American Specialty Taxi Policy identifies Shamrock as the insured party while the Form E filed with respect to the North American Specialty Shuttle Policy identifies Shamrock Shuttle as the insured party. The Colorado PUC made internal notations on these forms reflecting the certificate numbers applicable to the covered vehicles. Thus, the Form E filed with respect to the North American Specialty Taxi Policy reflects permit numbers 13043, 29934, 45391, 9256, and 545 and I while the Form E filed with respect to the North American Specialty Shuttle Policy reflects permit number 49759.

 

6. Northland issued one liability policy that is at issue in this case. Specifically, Northland issued policy number TP220404 (the “Northland Policy”) to Shamrock Limousine. This policy provided coverage in the amount of $500,000 and specifically listed Shamrock’s luxury limousines as covered vehicles. On the application it submitted to obtain the Northland Policy, Shamrock indicated that its transportation services consisted of limousines only. The Northland Policy did not list the taxi cab involved in the Accident as a covered vehicle, and Northland denies that there is coverage for the Counterdefendants’ claims under this policy.

 

7. Consistent with the Colorado PUC regulations, Northland had filed a Form E with the Colorado PUC under a liability insurance policy (“Policy TP10608”) it had previously issued to Shamrock Limousine. This Form E remained in effect unless and until cancelled by 30 days written notice. 4 Colo.Code Regs. §  723-33, Rule 6307(j). Such notice was not given by Northland until after the Accident. Like the Northland Policy, Policy TP10608 did not list the taxi cab involved in the Accident as a covered vehicle.

 

8. The Form E that Northland filed with respect to Policy TP10608 identified Shamrock Limousine as the insured party. The Colorado PUC made an internal notation on this form reflecting the permit number applicable to the covered vehicles. Thus, the Form E filed by Northland reflects permit number LL-256. Further, the Colorado PUC did not consider the Form E filed by Northland to be related to Shamrock’s operation of taxi cabs.

 

9. Policy TP10608 included a Form F endorsement. This form provides that the Form E filed by Northland effectively amended the policy to provide insurance as required by the Colorado PUC’s regulations provided, however, that

the insured agrees to reimburse the company for any payment made by the company which it would not have been obligated to make under the terms of this policy except by reason of the obligation assumed in making such certification.

Like the Form E certification filed with respect to Policy TP10608, the Form F endorsement remained in effect unless and until cancelled by 30 days written notice. Such notice was not given by Northland until after the Accident.

 

10. The taxi cab involved in the Accident was not being operated pursuant to certificate number LL-256 or under the trade name of Shamrock Limousine. Likewise, the taxi cab involved in the Accident did not and could not operate under permit number 49759.

 

 

II. Standard for Review

The very purpose of a summary judgment motion under Fed.R.Civ.P. 56 is to assess whether trial is necessary. White v. York Int’l Corp., 45 F.3d 357, 360 (10th Cir.1995). Rule 56 provides that summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The non-moving party has the burden of showing that there are issues of material fact to be determined. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

 

A party seeking summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, interrogatories, and admissions on file together with affidavits, if any, which it believes demonstrate the absence of genuine issues for trial. Celotex, 477 U.S. at 323; Mares v. ConAgra Poultry Co., Inc., 971 F.2d 492, 494 (10th Cir.1992). Once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried. Otteson v. U.S., 622 F.2d 516, 519 (10th Cir.1980); Fed.R.Civ.P. 56(e). These specific facts may be shown “by any of the kinds of evidentiary materials listed in Rule 56(c), except the pleadings themselves.” Celotex, 477 U.S. at 324.

 

III. Analysis

Shamrock argues that it has coverage under the Northland Policy for the Counterdefendants’ claims based on the Form E Northland filed with respect to Policy TP10608. More specifically, Shamrock argues that by filing this Form E Northland became obligated to cover Shamrock’s taxi cabs in addition to its luxury limousines. I disagree.

 

In support of its motion, Northland relies on the recent Tenth Circuit case of Cabs, Inc. v. Hartford Ins. Group, 151 Fed. Appx. 604 (10th Cir.2005). In Cabs, Inc., the common carrier, Cabs, Inc., did business under two trade names: Zone Cabs, Inc. (“Zone Cabs”) through which it operated a taxi cab service and Centennial Sedans, Inc. (“Centennial”) through which it operated a luxury limousine service. These two entities maintained different physical addresses and management, but operated pursuant to the same permit issued by the Colorado PUC.

 

The litigation before the Tenth Circuit arose after one of the taxi cabs operated under the name of Zone Cabs was involved in an accident. Defendant Hartford Insurance Group (“Hartford”) had issued a liability policy that initially named “Cabs, Inc., d/b/a Centennial” as the insured and provided coverage for “any auto” owned and operated by the named insured. When Centennial’s insurance broker attempted to file a Form E for Hartford’s policy naming the insured as “Cabs, Inc., d/b/a Centennial” with the Colorado PUC, however, it was rejected on the basis that the permit issued to Cabs, Inc. also listed Zone Cabs as a trade name and the Colorado PUC regulations required the exact same name to appear on the Form E. Accordingly, Centennial’s insurance broker submitted a new Form E identifying “Cabs, Inc., d/b/a Zone Cabs and/or Centennial” as Hartford’s insured. Hartford then amended its policy to reflect this same entity as its insured but did not otherwise alter its policy, and Cabs, Inc. continued to maintain other liability insurance for Zone Cabs.

 

When Zone Cabs and another insurer sought reimbursement from Hartford for costs associated with the taxi cab accident, Hartford sought to reform its policy to reflect that it did not provide coverage for Zone Cabs’ taxi cabs. In affirming the district court’s ruling granting Hartford’s request, the Tenth Circuit concluded, in part, that Hartford and Centennial never intended to insure Zone Cabs’ taxi cabs. This conclusion was supported by testimony from Centennial’s manager, Hartford’s sales representative, and Centennial’s insurance broker. Notably, Hartford’s sales representative testified that coverage had only been requested for limousines, not taxi cabs.

 

Although the facts and procedural posture of Cabs, Inc. differ in many respects from the present case, this authority is nonetheless instructive on a few key points. Most importantly, Cabs, Inc. supports Northland’s argument that the filing of a Form E does not obligate an insurer to provide coverage for other vehicles operated by the common carrier under a different name and, in this case, permit number. To conclude otherwise would render the ordered reformation of the insurance contract at issue in Cabs, Inc. meaningless.

 

Here, the Form E that Northland filed with the Colorado PUC expressly identified Shamrock Limousine as its insured. The taxi cab involved in the Accident was not being operated under this trade name or under the permit issued for the operation of Shamrock’s luxury limousines. Based on its filing of the Form E with respect to Policy TP10608, Northland may be obligated to extend coverage to any vehicle being operated by Shamrock under the trade name of Shamrock Limousine and permit number LL-256 regardless of whether the particular vehicle was specifically listed under Northland’s policy. There is simply no authority, however, to support an extension of the coverage under the Northland Policy to the taxi cab involved in the Accident based on the filing of this form. Moreover, such an extension is unwarranted in view of the fact that Shamrock had procured other insurance which expressly covered the taxi cab in question. See Nat’l Cas. Co. v. Lane Exp., Inc. 998 S.W.2d 256, 263 (Tex.App.1999) (filing of Form E has the effect of making insurer “an insurer of last resort when no other insurance would otherwise be available”). See also Adams v. Royal Indemnity Co., 99 F.3d 964, 968 (10th Cir.1996) (purpose of similar endorsement required under the regulations of the Interstate Commerce Commission is to protect the public from uninsured regulated vehicles and to prevent the risk that, through inadvertance or otherwise, some vehicles may be left off the policy to the public’s detriment).

 

Shamrock also argues that there may be coverage under the Northland Policy for the Counterdefendants’ claims based on a purported ambiguity in the parties’ intentions regarding this policy. I find this argument to be equally unpersuasive in view of Shamrock’s reliance on extrinsic evidence to establish this purported ambiguity. Resort to such evidence is only appropriate if the terms of the Northland Policy are ambiguous regarding the coverage provided under this policy. See Pepcol Mfg. Co. v. Denver Union Corp., 687 P.2d 1310, 1314 (Colo.1984) (“It is axiomatic that in the absence of an ambiguity a written contract cannot be varied by extrinsic evidence”). Shamrock has failed to identify any specific terms of the Northland Policy that are ambiguous and has therefore failed to raise a genuine issues of material fact as to the parties’ intentions.

 

Having concluded that there is no coverage under the Northland Policy for the taxi cab involved in the Accident, it is unnecessary for me to address the remaining argument in Northland’s motion that it would be entitled to reimbursement from Shamrock pursuant to the Form F issued in connection with Policy TP10608 if such coverage existed.

 

Based on the foregoing, IT IS ORDERED that Northland’s Motion for Summary judgment [Doc # 66] is GRANTED that the Form E that Northland filed with respect to the Northland Policy has no application to claims arising out of the Accident.

Court of Appeal of Louisiana,

Third Circuit.

Rodney BRACK, et al.

v.

Michael A. FERRINGTON, et al.

No. 05-784.

 

March 1, 2006.

 

PAINTER, Judge.

 

Following the trial court’s grant of a judgment notwithstanding the verdict (JNOV) in their favor, Plaintiffs, Rodney Brack, individually and on behalf of his minor daughter, Savannah Brack, and Shannon Brack, appealed and sought a reversal of that portion of the JNOV finding Brack twenty percent at fault in causing the accident as well as an increase in the amount of damages awarded. Defendants, Michael Ferrington, Wisner Minnow Hatchery, and Nationwide Agribusiness Insurance Company, answered the appeal. For the following reasons, we reverse the trial court’s JNOV and remand the matter for a new trial.

 

FACTUAL AND PROCEDURAL BACKGROUND

On April 11, 2002, Plaintiff, twenty-four year old Rodney Brack, was driving a loaded logging truck on Louisiana Highway 112. Defendant, nineteen year old Michael Ferrington, was driving an eighteen wheeler for Wisner Minnow Hatchery on Louisiana Highway 377. Ferrington had missed his turnoff and was attempting to turn around at the “T” intersection of Highway 112 and Highway 377. On his first attempt, Ferrington swung too wide and had to back to correct his turn. Ferrington was stopped in the roadway when he saw Brack’s logging truck approach. Brack, who was coming out of a curve in the roadway, was traveling at approximately fifty miles per hour and did not believe he could stop in time to avoid hitting Ferrington’s truck. Brack attempted go around Ferrington’s stationary truck, but his logging truck flipped over as it hit the shoulder of the road. State Trooper Patrick Bell issued a citation to Ferrington for failure to yield. Brack was not ticketed.

 

Immediately following the accident, Brack was taken by ambulance to Beauregard Hospital in DeRidder. After x-rays were taken and his cuts were stitched, Brack was released with instructions to follow up with his own physician. Brack had two prior lumbar surgeries, namely a L5-S1 diskectomy in September of 1998 and a lumbosacral fusion with pedicle screw instrumentation in March of 1999.

 

Brack, individually and on behalf of his minor daughter, Savannah, and Brack’s wife, Shannon, filed suit against Ferrington, Wisner Minnow Hatchery, Inc. (Ferrington’s employer), and Nationwide Agribusiness Insurance Company (the employer’s insurer). American Interstate Insurance Company, the workers’ compensation carrier for Greg Brister Logging, the business for which Brack was hauling logs, intervened to recover monies paid to or on behalf of Brack.

 

Prior to trial, the parties stipulated that Ferrington was in the course and scope of his employment at the time of the accident and that his employer was vicariously liable for his actions. The parties also stipulated that Nationwide Agribusiness Insurance Company was the insurer of Ferrington’s employer and provided coverage for this accident. The parties further stipulated that American Interstate Insurance Company had paid $41,050.88 in indemnity benefits and $45,705.63 in medical benefits.

 

Following a four day trial, the jury deliberated for several hours but became deadlocked. The trial court dismissed the jury, and Plaintiffs subsequently filed a motion for JNOV pursuant to La.Code Civ.P. art. 1811. The trial court granted the motion and assessed eighty percent of the fault to Ferrington and twenty percent of the fault to Brack. The trial court also made the following awards to Plaintiffs: (1) pain and suffering, $150,000.00; (2) past medical expenses, $45,705.63; (3) future medical expenses, $155,833.00; (3) past lost wages, $50,438.00; (4) future lost wages, $96,564.00; (5) loss of consortium to Shannon Brack, $15,000.00; (6) loss of consortium to Savannah Brack, $2,500.00. The trial court also awarded intervenor, American Interstate Insurance Company, $41,050.88 in indemnity benefits and $45,705.63 in medical benefits, with a preference and priority for future workers’ compensation indemnity benefits and medical expenses. The judgment provided that the awards for special and general damages were to be reduced by the percentage of fault attributable to Brack and that the award to intervenor was also to be reduced by the percentage of fault attributable to Brack.

 

Plaintiffs now appeal, seeking to have Brack found free from fault in causing the accident, to have the award for future medical expenses increased, and to have the award for future lost wages increased. Defendants answer the appeal and seek to have the judgment of liability reversed or modified.

 

DISCUSSION

We first consider Defendants argument that it was improper for the trial court to grant a JNOV in Plaintiffs’ favor as to liability. Louisiana Code of Civil Procedure Article 1811(B) provides, in pertinent part, that: “If no verdict was returned, the court may render a judgment or order a new trial.” In Bowie v. Young, 01-715, p. 12 (La.App. 3 Cir. 3/20/02), 813 So.2d 562, 570-71, writ denied, 02-1079 (La.6/21/02), 819 So.2d 335, this court noted:

In describing the circumstances under which a JNOV is appropriate, the Louisiana Supreme Court has explained that the procedure is to be used only when the facts and circumstances favor one party so overwhelmingly that reasonable men could not arrive at a contrary verdict. Anderson v. New Orleans Public Service, 583 So.2d 829. It is inappropriately used in cases in which the evidence merely preponderates in favor of the moving party. Id. Also, we are mindful that the motion must not be granted if there is evidence in opposition that is of such quality and weight that it would permit “reasonable and fairminded men in the exercise of impartial just” to reach different conclusions. Id. at 832. Finally, the court cautioned that, in weighing whether a JNOV is appropriate, the court should not weigh witness credibility and should resolve all reasonable inferences/factual questions in favor of the non-moving party. Id. See also Davis v. Wal-Mart Stores, Inc., 00-0445 (La.11/28/00); 774 So.2d 84.

On review, an appellate court employs a two-part inquiry when considering whether a JNOV is appropriate. Davis, 99-0445; 774 So.2d 84. First, applying the same criteria as the trial court, the appellate court must determine if the trial court erred in granting the motion. Id. Next, if the appellate court determines that the standard was correctly applied to the jury verdict at the trial level, the appellate court must then review the JNOV granted using the manifest error standard of review. Id.

 

We also note that “[a]lthough the trial judge’s discretion is limited in applying this standard, in cases where virtually no factual dispute exists and no credibility determinations by the fact-finder are required, questions of existence of a duty, violation of that duty, and victim fault are legal questions, and within the province of the trial judge to decide.” Millet v. Cormier, 95-953, p. 11-12 (La.App. 3 Cir. 3/27/96), 671 So.2d 1101, 1108, writ denied, 96-1026 (La.5/31/96), 673 So.2d 1036 (citing Pitts v. Bailes, 551 So.2d 1363 (La.App. 3 Cir.), writs denied, 553 So.2d 860 (La.1989) and 556 So.2d 1262 (La.1990)).

 

In this case, Defendants argue that, while the trial court had authority to grant or deny a JNOV in this case, it was incorrect in granting Plaintiffs’ motion because Plaintiffs did not sustain their burden of proof on the issue of liability. Defendants contend that it was error to grant the JNOV in Plaintiffs’ favor because the “evidence in equipoise mandated a defense verdict.” Defendants rely upon the case of Miller v. Leonard, 588 So.2d 79 (La.1991) where the Louisiana Supreme Court held that, in a case where the evidence is truly balanced and neither the plaintiff nor the defendant, who also filed a reconventional demand, satisfied its burden of proof, the court is not required to find for one party or the other but can dismiss both claims. Despite the holding in Miller, we note that the trial court’s function is “to resolve disputes, even if the resolution is difficult.” Chargois v. Guillory, 97-439, p. 6 (La.App. 3 Cir. 10/29/97), 702 So.2d 1068, 1071. We further note, as we did in Chargois, that “it is not practical and only remotely possible to accord exactly equal weight to the evidence on each side.” Id. at 1071 (quoting United Services Auto. Ass’n v. Travelers Ins. Co., 255 So.2d 418, 420 (La.App. 4 Cir.1971)). However, we do not agree with the defense that the trial court should have dismissed Plaintiffs’ claims.

 

In granting the JNOV in this case, the trial court stated:

Mr. Ferrington testified that when he first began his turnaround maneuver he swung too wide to turn left and had to back up to make adjustments. He testified that all of this was taking a “few minutes.” Mr. Wayne Winkler, the defense’s accident reconstruction investigator, testified that there was no sudden emergency created by Mr. Ferrington because Mr. Ferrington’s truck should have been visible to Mr. Brack from a distance of 600 feet–as Mr. Brack was coming out of the curve. Mr. Winkler stated that Mr. Brack had plenty of time to stop his vehicle.

….

Mr. Brack relied on the doctrine of “sudden emergency.” According to the doctrine of “sudden emergency,” when confronted with imminent peril, without sufficient time to consider and weight all of the circumstances or best means to avoid an impending danger, a party is not negligent if he fails to adopt what subsequently may appear to have been the better method. In this case, Mr. Brack chose to attempt to go around Mr. Ferrington. Mr. Brack wrecked. According to Mr. Brack, because of the weight of his loaded logging truck, he did not believe he could stop in time to avoid hitting Mr. Ferrington’s truck if he remained in his lane of travel.

Considering the testimony of Mr. Winkler, since Mr. Ferrington’s truck was visible at a distance of 600 feet, Mr. Brack could have stopped his truck timely. However, at that distance, Mr. Brack was still in the curve, so Mr. Ferrington’s truck was not straight ahead of him. If Mr. Brack had seen Mr. Ferrington at that distance, it is foreseeable that Mr. Brack expected Mr. Ferrington to clear the roadway before Mr. Brack reached him either by completing the turn or backing out of the way.

The Court finds that there are no factual disputes in the case at hand and no credibility determinations are required. The Court further finds that the questions concerning the existence of a duty, the violation of that duty, and victim fault are legal questions and are within the province of the trial court to decide. Taking all of the evidence at its face value and considering it in the light most favorable to the non-moving party, the Court finds that reasonable and fair-minded persons in the exercise of impartial judgment could have ruled in favor of the mover. The Court grants the motion for judgment notwithstanding the verdict and rules as follows.

The Court finds both parties were at fault in causing the damage to Mr. [Brack]. The Court assesses fault to the defendant, Michael Ferrington, in the proportion of 80% and to the plaintiff, Rodney Brack, in the proportion of 20%.

(Emphasis added.)

 

“The motion for a JNOV requires a stringent test because it deprives the parties of their right to have all disputed issues resolved by a jury.” Templet v. State ex rel. Dept. of Transp. & Dev., 00-2162, p. 5 (La.App. 1 Cir. 11/9/01), 818 So.2d 54, 57. Under the two-part inquiry described in Davis, we must first determine if the trial court erred in granting the motion for JNOV on behalf of Plaintiffs, and our initial inquiry must be whether the facts and inferences point so strongly in favor of a finding that Ferrington was negligent that no reasonable juror could have reached a different verdict on the issue. We must apply the same criteria as the trial court. In so doing, we note that the trial court did not find that reasonable jurors could not arrive at a contrary verdict and that reasonable men could not reach a different conclusion other than that Ferrington was negligent. Instead, the trial court found that “reasonable and fair-minded persons in the exercise of impartial judgment could have ruled in favor of the mover [Brack].” This is not the standard and necessarily compels the conclusion that reasonable and fair-minded persons in the exercise of impartial judgment could also have ruled in favor of the non-movers. As indicated above, the trial court recognized that there was some evidence to suggest that Ferrington was not negligent and that Brack could have avoided the accident. Despite the trial court’s statement otherwise, there were factual disputes, and the trial court did not view these disputes in the light most favorable to the defense. Here, as in Templet, 818 So.2d at 59, “[t]he record is replete with evidence of such a conflicting nature that it is impossible to say that reasonable jurors exercising impartial judgment could not reach different conclusions.”

 

Plaintiffs are also unhappy with the trial court’s allocation of fault in the JNOV and argue that Brack should have been found free from fault based on the doctrine of sudden emergency. The doctrine of sudden emergency has been articulated as follows:

One who suddenly finds himself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or best means that may be adopted to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.

Hickman v. S. Pac. Transp. Co., 262 La. 102, 112-113, 262 So.2d 385, 389  (La.1972). We agree that the trial court did not correctly apply the doctrine of sudden emergency, but we find that there was conflicting evidence as to which party created the sudden emergency. The trial court appears to recognize this based on her finding that Brack was twenty percent at fault. Thus, the JNOV was improper for this reason as well.

 

Therefore, after our review of the record and the trial court’s reasons for judgment, it is clear that the trial court erred as a matter of law when applying the standard of review in its grant of the JNOV in Plaintiffs favor. While the trial court is empowered to render a judgment in cases where no verdict is returned by the jury, based upon our review of the record as a whole, we must find that the facts of this case do not support a JNOV because the evidence presented did not rise to the standard of being so overwhelmingly in Plaintiffs’ favor that a JNOV was warranted. Accordingly, we reverse the trial court’s JNOV.

 

Because we reverse the JNOV, we do not reach, and need not address, the remaining issues raised by Plaintiffs and Defendants.

 

DECREE

For the foregoing reasons, we find that the trial court erred in granting the judgment notwithstanding the verdict. Accordingly, we reverse the trial court’s judgment and remand the matter for a new trial. Costs of this appeal are assessed equally to the parties.

 

REVERSED AND REMANDED.