Angelle v. Delery

833 So. 2d 469, 2002 WL 31662637
CourtLouisiana Court of Appeal
DecidedNovember 26, 2002
Docket02-CA-0644
StatusPublished
Cited by5 cases

This text of 833 So. 2d 469 (Angelle v. Delery) 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
Angelle v. Delery, 833 So. 2d 469, 2002 WL 31662637 (La. Ct. App. 2002).

Opinion

833 So.2d 469 (2002)

Anna N. ANGELLE
v.
David L. DELERY, Rachel Douglas, and Allstate Insurance Company.

No. 02-CA-0644.

Court of Appeal of Louisiana, Fifth Circuit.

November 26, 2002.

*470 James E. Stovall, James E. Stovall, LLC, Covington, LA, for Anna N. Angelle, Plaintiff-Appellee.

Lucia G. Hawks, Law Offices of Harold G. Toscano, New Orleans, LA, for Allstate Insurance Company, Defendant-Appellant.

Panel composed of Judges SOL GOTHARD, SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.

SUSAN M. CHEHARDY, Judge.

In this personal injury lawsuit, after trial, the jury found that the defendant-driver caused the automobile accident, which caused the injury to plaintiff's shoulder and awarded damages. The trial court subsequently granted plaintiff's motion for judgment notwithstanding the verdict and increased the amount of general damages awarded to the plaintiff. For the following reasons, we affirm.

Facts

On Wednesday, October 27, 1999, the plaintiff, Anna Angelle, and the defendant, David Delery, were involved in a side-impact collision near the intersection of Dickory Avenue and Citrus Boulevard in Harahan, Louisiana. In the accident, the front of the defendant's vehicle collided with the driver's side of the plaintiff's vehicle, causing substantial damage to the driver's door and puncturing the front tire on the driver's side.[1] Although neither driver sought medical attention immediately after the accident, the 76-year-old plaintiff stated that the collision made her feel "like all the flesh was taken off [her] bones."

The next day, she felt pain in her left upper torso, which made it difficult to breathe, so she made an appointment for Friday, October 29, 1999, with her family physician, Dr. Miles. She presented to Dr. Miles with complaints of headaches and pain and bruising on her left side, specifically at her ribs, her left arm, her *471 left elbow, her left shoulder and her neck. He advised a conservative treatment of over-the-counter pain relievers.

On December 27, 1999, Mrs. Angelle visited her orthopedist, Dr. Marshall Book, complaining of pain in her left shoulder and left rib pain. While Mrs. Angelle had previously experienced mild pain in her neck, back, and shoulder associated with osteoarthritis, on that visit, she complained of pain in her left shoulder. That day, Dr. Book injected Mrs. Angelle's left shoulder with steroids.

Mrs. Angelle did not experience relief so, on December 29, 1999, she sought further treatment, at the advice of her attorney, from Dr. Stewart Altman, a general surgeon. She presented with headaches and nausea as well as pain in her neck, left elbow and left shoulder. Dr. Irra, who is Dr. Altman's associate, diagnosed Mrs. Angelle with cervical and lumbar strain as well as post-traumatic muscle tension headaches. He prescribed medication, heat therapy and a TENS unit to alleviate her pain.

Mrs. Angelle continued treatment with Dr. Altman until May 15, 2000 when he referred her to Dr. Seltzer, an orthopedic surgeon. In the meantime, Mrs. Angelle returned to Dr. Book on April 12, 2000, complaining of acute shoulder pain in her left shoulder. He again injected her shoulder with steroids.

On May 23, 2000, Mrs. Angelle presented to Dr. Seltzer with complaints of neck pain, shoulder pain which radiated down her left arm, and difficulty in lifting her left arm. He prescribed oral medication. On June 14, 2000, at Dr. Seltzer's direction, Mrs. Angelle underwent an MRI of her left shoulder, which revealed spurring with the potential for development of chronic impingement syndrome and complete tear in the distal supraspinatus muscle of the rotator cuff.

On August 15, 2000, Mrs. Angelle returned to Dr. Seltzer who, after reviewing the results of the MRI, recommended two courses of treatment for Mrs. Angelle's left shoulder: conservative treatment with oral medication or more aggressive treatment with surgery. On December 12, 2000, Mrs. Angelle, while trying to avoid using her left arm, ruptured a tendon in her right bicep through overuse.

Although Mrs. Angelle continued to suffer with pain in her left shoulder, she was reluctant to undergo surgery until February of 2001. When Dr. Seltzer sent her to Dr. Miles to obtain clearance for shoulder surgery, Dr. Miles refused to clear her for surgery because he detected a systolic murmur. Dr. Miles referred Mrs. Angelle to cardiologist, Dr. Edward St. Martin.

When Dr. St. Martin examined her on April 6, 2001, he discovered that she had critical aortic valvular stenosis. On April 23, 2001, Mrs. Angelle underwent an aortic valve replacement. As of November 28, 2001, Mrs. Angelle continued to suffer with shoulder pain but had not yet been released by Dr. Miles to undergo the shoulder surgery.

Procedural History

On October 17, 2000, plaintiff filed this lawsuit against the driver, David Delery; the vehicle owner, Rachel Douglas; and the driver's liability insurer, Allstate Insurance Company. On November 26, 2001, the matter proceeded to a trial.[2] After hearing two days of testimony and evidence, the jury unanimously found that David Delery's negligence was the proximate *472 cause of the automobile accident on October 27, 1999. Further, the jury attributed fault 100% to Delery and awarded Anna Angelle a total of $36,645 in damages, with general damages of $20,000.00[3] and medical damages of $16,645.00.[4] Plaintiff subsequently filed a Motion for Judgment Notwithstanding the Verdict. On January 24, 2002, after a hearing, the trial judge granted plaintiff's motion and increased plaintiff's general damages award to $50,000.00.

On February 14, 2002, counsel for Delery and Allstate filed a Motion for suspensive Appeal. Plaintiff timely filed an answer to the appeal seeking an increase in the award of general damages.

Law and Argument

In their appellate brief, defendants Delery and Allstate assert that "the trial judge erred in granting judgment notwithstanding the verdict by using an improper standard and because the amount awarded by the jury for general damages was within the range, which reasonable minds could award." The defendants specifically contend that the trial court used the improper standard of his own opinion when he granted the JNOV. Further, the defendants argue that the evidence in this case is not so favorable to the plaintiff that reasonable and fair-minded persons could not arrive at any verdict in favor of the defendant. Finally, they argue that the jury was not clearly wrong in its award of general damages to the plaintiff.

La. C.C.P. art. 1811 governs judgments notwithstanding the verdict (JNOV). It provides that a motion for judgment notwithstanding the verdict may be granted on the issue of liability or on the issue of damages, or both. The standard to be used in determining whether a JNOV has been properly granted has been set forth in our jurisprudence as follows:

A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover.

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Cite This Page — Counsel Stack

Bluebook (online)
833 So. 2d 469, 2002 WL 31662637, Counsel Stack Legal Research, https://law.counselstack.com/opinion/angelle-v-delery-lactapp-2002.