American Motorists Ins. Co. v. American Rent-All, Inc.

566 So. 2d 121, 1990 La. App. LEXIS 1702, 1990 WL 91849
CourtLouisiana Court of Appeal
DecidedJune 25, 1990
Docket90-CA-137, 90-CA-138
StatusPublished
Cited by10 cases

This text of 566 So. 2d 121 (American Motorists Ins. Co. v. American Rent-All, Inc.) 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
American Motorists Ins. Co. v. American Rent-All, Inc., 566 So. 2d 121, 1990 La. App. LEXIS 1702, 1990 WL 91849 (La. Ct. App. 1990).

Opinion

566 So.2d 121 (1990)

AMERICAN MOTORISTS INSURANCE COMPANY
v.
AMERICAN RENT-ALL, INC., et al.
Rose Ann WALTON, et al.
v.
AMERICAN RENT-ALL, INC., et al.

Nos. 90-CA-137, 90-CA-138.

Court of Appeal of Louisiana, Fifth Circuit.

June 25, 1990.
Rehearing Denied September 25, 1990.

*122 Christovich & Kearney, Charles W. Schmidt, III, New Orleans, for American Rent-All, Inc., and Bruce Lee, defendants-appellants.

Law Office of Cerio A. DiMarco, Cerio A. DiMarco, Edward J. Lassus, Jr., New Orleans, for American Motorists Ins. Co., plaintiff-appellee.

Leonard J. Cline, Joseph H. McCusker, III, Metairie, for Rose Ann Walton, plaintiff-appellee.

Before CHEHARDY, C.J., and KLIEBERT and GAUDIN, JJ.

CHEHARDY, Chief Judge.

These consolidated actions arise out of a rear-end collision which occurred on February 5, 1985 in Harvey, Louisiana. Rose Ann Walton was driving a vehicle owned by her employer American Waste and Pollution Control Company when she was struck from the rear by a pickup owned by American Rent-All, Inc., and operated by its employee Bruce Lee.

American Motorists Insurance Company, the worker's compensation insurer of Mrs. Walton's employer, brought suit against defendants Bruce Lee, American Rent-All, Inc., and their liability insurers Hanover Insurance Company and Massachusettes Bay Insurance Company for recovery of statutory disability benefits paid and payable in favor of Mrs. Walton. In a separate suit Mrs. Walton and her husband Jeffery sued the defendants for tort damages.

The actions were consolidated and after extensive discovery were fixed for trial. The defendants stipulated to liability and the case proceeded to bench trial on the issue of quantum alone in June, 1989. The district court found in favor of plaintiffs on the tort claim and awarded $1,538,628.93 in damages. The judge also granted statutory recovery to the compensation insurer. Only that portion of the judgment which adjudicates the tort claims is appealed.

As a basis for the reversal or modification of the district court judgment, appellants[1] argue that: (1) Rose Ann Walton did not prove that her present psychiatric condition was caused by the rear-end collision; (2) plaintiffs' damage award is excessive; (3) interest which accrued between submission of the case for decision and the rendition of judgment should not be charged against defendants. After considered review we find that the first two arguments have merit and require us to reduce the district court judgment.

FACTS

From the evidence presented at trial the following profile of Rose Ann Walton emerges.

*123 Mrs. Walton has worked in the clerical field since 1963. She was employed by American Waste in 1972 for secretarial and accounting work. She transferred to the sales department in 1978 and by 1985 held the position of outside sales representative. Her job was to solicit and service customer accounts. It entailed extensive driving. Plaintiff made 12 to 15 field service calls per day. She was en route to service a customer account on the day of the accident.

On February 5, 1985 Mrs. Walton was the victim of a rear-end collision. When her car and Mr. Lee's pickup made contact she was jerked forward and snapped backward. She experienced the onset of neck and back pain.

Later that same day Mrs. Walton consulted her family physician Dr. Russell Rawls. She described the accident to him and reported complaints of upper back pain and a headache. The doctor's physical examination was positive for limited range of neck motion, and tightness and tenderness in the right trapezius muscle. Dr. Rawls diagnosed a cervical sprain with associated tension headaches and prescribed muscle relaxers and rest.

Mrs. Walton continued under Dr. Rawls' care without significant improvement. She reported increased discomfort in the neck though she experienced temporary relief with anti-inflammatory injections. Her examinations through March 1985 documented objective signs of injury. Dr. Rawls referred Mrs. Walton to orthopedic surgeon Dr. Mark Juneau.

Dr. Rawls testified that plaintiff had been under his care since August 1982 for chronic anxiety and periodic weight gain. He had medicated her with tranquilizers and prescribed diet pills to regulate her weight fluctuation. Prior to 1985, Mrs. Walton had never complained to him of neck pain; he related her neck injury to the rear-end collision.

Dr. Juneau's examination of plaintiff revealed full range of motion and no muscle spasm. He treated Mrs. Walton's complaints of neck pain with physical therapy and muscle relaxers through September 1985. Mrs. Walton testified that despite this conservative treatment she continued with neck and shoulder pain radiating to her arms. She felt that treatment by Dr. Juneau was not helping her and so consulted neurosurgeon Dr. Raymond Llewellyn.

Mrs. Walton came under Dr. Llewellyn's care in October 1985. She reported pain in the neck and shoulder radiating to her arm, which she related to the February 5, 1985 collision. On examination the doctor found neck spasm and decreased reflexes in her right arm. He diagnosed a muscle ligament strain. Because conservative treatment for eight months had not resolved Mrs. Walton's complaints the doctor considered the possibility of joint involvement and ordered additional testing.

Mrs. Walton's October 1985 CAT scan depicted a rupture at the C 5-6 and C 6-7 vertebral levels. The doctor recommended surgery which Mrs. Walton declined in favor of continued conservative treatment. She stated that she did not want to undergo the trauma of surgery or a lengthy recuperative period.

Mrs. Walton remained under Dr. Llewellyn's care on a physical therapy program through September 1986. Her pain increased. A January 1987 repeat CAT scan showed worsening of the ruptures. A concurrent myelogram showed swelling of the nerve root at C 5-6 and a defect in contact with the nerve structures at C 6-7. Mrs. Walton underwent a two-level diskectomy in March 1987.

While surgery left Mrs. Walton with a 15% anatomical disability, Dr. Llewellyn testified that he achieved an excellent result with the fusion. He was disappointed in Mrs. Walton's post-hospital progress. She continued with complaints of neck and right arm pain. The doctor testified that these complaints were psychiatric or somatic in origin. He stated that her obesity also hindered her ability to comfortably use her neck and arms. While he prohibited Mrs. Walton from climbing, bending and heavy lifting he placed no restrictions on her sitting or driving.

*124 Dr. Llewellyn related plaintiff's neck injury to the February 5, 1985 rear-end collision. Due to her physical injury he believed she could not work as an outside sales representative. He recommended continued physical therapy and a follow-up neurogical treatment.

On behalf of defendants, Ranjan Shety, a physical therapist, performed a muscular skeletal and functional capacity examination on Mrs. Walton in February 1988. On the basis of his testing and analysis of her range of motion and muscle strength he testified that plaintiff required a maximum of six months' physical therapy after which she could return to sedentary employment. He found her pain complaints to be grossly exaggerated.

At trial plaintiffs contended that the rear-end collision resulted in both physical and psychiatric injury. Defendants argued that Mrs. Walton's emotional instability predated the automobile accident.

From the early 1970's on Mrs. Walton was treated regularly for chronic anxiety-depression.

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Bluebook (online)
566 So. 2d 121, 1990 La. App. LEXIS 1702, 1990 WL 91849, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-motorists-ins-co-v-american-rent-all-inc-lactapp-1990.