All v. Safeco Insurance Co.

235 So. 3d 1134
CourtLouisiana Court of Appeal
DecidedNovember 1, 2017
Docket2017 CA 0632
StatusPublished
Cited by3 cases

This text of 235 So. 3d 1134 (All v. Safeco Insurance Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
All v. Safeco Insurance Co., 235 So. 3d 1134 (La. Ct. App. 2017).

Opinion

HOLDRIDGE, J.

lain this personal injury suit, defendants, Safeco Insurance Company and Austin T. Tynes, appeal a judgment awarding plaintiff, Juliet L. All, $66,000.00. in general damages, which was reduced to $50,000.00 as a result of the parties- stipulation,. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On April 14, 2015, Mrs. All was operating a 2009 Honda Accord, traveling west on Louisiana Highway 934 in Ascension Parish near the intersection of Louisiana Highway 934 and George Rouyea Road. At the same time, Mr. Tynes was operating a 2007 Chevrolet Silverado, traveling north on George Rouyea Road, when he failed to stop at the stop sign, striking Mrs. All’s vehicle on its driver’s side, propelling her vehicle off the road and into a ditch. Ultimately, her vehicle was declared a total loss.

As a result of the collision, Mrs. All was treated the day of the accident at St. Elizabeth Hospital where she was diagnosed with chest pain and neck strain and prescribed medications. X-rays were taken and no fractures or broken bones were found. When her pain would not recede, Mrs. All sought treatment with Dr. Scott Petrie, an orthopedic surgeon at Ortho-paedic & Sports Clinic in Gonzales, Louisiana. On May 4, 2015, Dr. Petrie diagnosed Mrs. All with cervical spine strain/spasm/contusion and whiplash. After reviewing Mrs. All’s x-rays, Dr. Petrie determined that Mrs. All had some soft tissue damage and prescribed her anti-in-flammatories and referred her to Baton Rouge Physical Therapy. On June 11, 2015, after ten sessions of physical therapy, Mrs. All’s progress report from Baton Rouge Physical Therapy stated that three goals were established: (1) she was able to use a computer over two hours without significant pain; (2) she could tolerate one hour or more of driving without aggravating pain; and (3) she could tolerate lasitting for two hours without aggravating pain. Due to family and work issues,1 Mrs. All did not return for treatment with Dr. Petrie until November 20, 2015, complaining of daily neck spasms and burning sensations. Mrs. All saw Dr. Petrie monthly until her last visit on February 17, 2016, when Dr. Petrie examined her and noted that there was no change since her first visit and that she had still not improved. Dr. Petrie told Mrs. All to only come back and see him if she would consider additional physical therapy.

On March 18, 2016, Mrs. All filed a Petition for Damages against Mr. Tynes and his insurer, Safeco, alleging that Mrs. All sustained injuries from the accident and was entitled to damages for those injuries. On December 8, 2016, the parties stipulated that Mr. Tynes was solely at fault for the accident and that he was an insured driver under an automobile insurance policy issued by Safeco at the time of the accident. The parties further stipulated that Mrs. All’s damages would not exceed $50,000.00, exclusive of judicial interest and costs.

A bench trial was held on February 13, 2017, to determine the nature, severity, and extent of Mrs. All’s bodily injuries sustained in the accident. At trial, Mrs. All was questioned extensively about her neck pain and her progress during physical therapy. Mrs. All testified that she had physical therapy sessions twice a week for four or five weeks. Mrs. All testified that when she went to physical therapy it would ease her pain “for a little while, an hour or so.” When asked if she felt that' physical therapy did her any good as a long-term cure, Mrs. All stated “[n]o, it was’t a long-term cure. It was a temporary fix.”

At the conclusion of the bench trial, the trial court orally ruled stating, in pertinent part:

LOASES OF THIS NATURE NORMALLY BOIL DOWN TO THE CREDIBILITY OF THE WITNESSES AS TO THE PAIN INCURRED. I CAN TELL YOU MANY TIMES I SEE WITNESSES OR PLAINTIFFS WHO TESTIFY ABOUT THE DEGREE OF PAIN AND IT’S JUST NOT CREDIBLE TESTIMONY BASED ON THE FACTS OF THE PARTICULAR CASE.
IN THIS CASE, THIS LADY WAS STRUCK BY ANOTHER VEHICLE. VEHICLE ENDED UP IN A DITCH. [MRS.] ALL’S TESTIMONY IS VERY CREDIBLE INSOFAR AS THIS COURT IS' CONCERNED. I DON’T THINK SHE TRIED TO MAXIMIZE THE DEGREE OF PAIN SHE SUFFERED AS A RESULT OF THIS PARTICULAR ACCIDENT. '
***
NORMALLY, IF I GO WITH MY NORMAL PROCEDURE, FOR SOFT TISSUE INJURIES, I NORMALLY AWARD ANYWHERE FROM [$]3,000 TO $3,500 A MONTH. AS I STATED, THE PLAINTIFF WAS VERY CREDIBLE IN HER TESTIMONY AS TO THE PAIN SHE HAS SUFFERED AND SHE IS STILL SUFFERING THAT PAIN.
THEREFORE, IN LIGHT OF THAT TESTIMONY, WE’RE LOOKING AT A DURATION OF PAIN THAT EXCEEDS 22 MONTHS, WHICH WOULD PUT US THROUGH FEBRUARY OF THIS YEAR. IF I USE THAT FIGURE OF $3,000, I END UP WITH A FIGURE OF ... $66,000 IN ADDITION TO THE MEDICAL EXPENSES INCURRED.

On February 20, 2017, the trial court signed a judgment in accordance with its oral ruling, awarding Mrs. All $66,000.00 in general damages, which was reduced to $50,000.00 as a result of the parties’ stipulation. Thereafter, Safeco and Mr. Tynes appealed assigning as error that the trial court abused its discretion in awarding Mrs. All $50,000.00 in general damages when her alleged injuries were of short duration and minimum severity.

DISCUSSION

The only issue on appeal is whether the trial court correctly determined that Mrs. All was entitled to the full sum awarded by the trial court in general damages. General damages involve mental or physical pain or suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle that cannot be measured definitively in terms of money. Boudreaux v. Farmer, 604 So.2d 641, 654 (La. App. 1 Cir.), writs denied, 605 So.2d 1373, 1374 (La. 1992). The primary objective of general damages is to restore the party in as near a fashion as possible to the state he was in at the time immediately preceding injury. Lohenis v. Rousse, 2014-1078 (La. App. 1 Cir. 3/9/15), 166 So.3d 1020, 1024. The role of the appellate court in reviewing general damages is not to decide what an appropriate award is, but rather to review the trier of fact’s exercise of discretion. See La. C.C. art. 2324.1. The initial inquiry is whether the award for the particular injuries-and their effects under the circumstances -on the injured person is a clear abuse of the “much discretion” of the trier of fact. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La. 1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994); Lee v. Briggs, 2008-2120 (La. App. 1 Cir. 9/10/09), 23 So.3d 362, 364-65. Because the discretion vested in the trier of fact is so great, and even vast, an appellate court should rarely disturb an "award of general damages on review. Youn, 623 So.2d at 1261. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effect of the particular injury, to the particular plaintiff, under the particular circumstances, that the appellate court should increase or reduce the award. Id.

In the instant matter, Safeco and Mr. Tynes argue that the trial court abused its discretion in awarding Mrs. All $50,000.00 in general damages because it ignored the minimal.severity of Mrs.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
235 So. 3d 1134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/all-v-safeco-insurance-co-lactapp-2017.