Ashby v. Casey

111 So. 3d 1113, 2013 WL 811416, 2013 La. App. LEXIS 371
CourtLouisiana Court of Appeal
DecidedMarch 6, 2013
DocketNo. 47,761-CA
StatusPublished
Cited by1 cases

This text of 111 So. 3d 1113 (Ashby v. Casey) 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
Ashby v. Casey, 111 So. 3d 1113, 2013 WL 811416, 2013 La. App. LEXIS 371 (La. Ct. App. 2013).

Opinion

STEWART, J.

_JjDefendants-Appellants GEICO Indemnity Company (hereinafter referred to as “GEICO”) and State Farm Mutual Automobile Insurance Company (hereinafter referred to as “State Farm”) are appealing a trial court judgment awarding damages [1115]*1115to Plaintiff-Appellee, Katherine Felts (hereinafter referred to as “Felts”). We affirm in part and remand.

FACTS AND PROCEDURAL HISTORY

On October 2, 2009, at approximately 9:16 p.m., Felts and Edward Ashby (hereinafter referred to as “Ashby”) were involved in a motorcycle-automobile accident. Felts was a passenger on the motorcycle, which was driven by Ashby southbound on Barksdale Boulevard near its intersection with Interstate 20 (hereinafter referred to as “1-20”). As they reached the intersection, Lawrence Casey attempted to make a left turn onto 1-20 in his vehicle, without the proper green arrow signal. Attempting to avoid the collision, Ashby quickly laid the motorcycle down.

Even though Ashby’s motorcycle never collided with Casey’s vehicle, both Felts and Ashby suffered injuries from the accident. Felts, who was 52 years old at the time, was thrown off the motorcycle, which resulted in her hitting her right hip and the right side of- her rib cage area on the handlebar of the motorcycle. She also hit her right arm as she landed on the ground.

Following the accident, Felts began to experience pain in her right side, mostly in her chest and her ribs. Felts’ daughter and son-in-law picked up Felts and Ashby from the accident scene and transported them to the emergency room at Christus Schumpert Highland, where Felts was |2examined and X-rays of Felts’ chest, cervical spine, right knee, and right hip were taken. She was discharged with medication and advised to follow up with her primary care physician.

On October 12, 2009, Felts was seen by her primary care physician, Dr. Eric Smith, at Shreveport Internal Medicine. She complained of soreness in her right chest and back areas. Dr. Smith advised that she continue with her initial medical regimen until a previously scheduled routine wellness visit on October 27, 2009. At the October 27 routine wellness visit, Dr. Smith conducted an urinalysis that determined that Felts suffered from a microscopic hematuria. Dr. Smith recommended that she see a urologist.

Felts was subsequently treated by Dr. Kevin Cline, a general urologist who specializes in female urology, at Regional Urology. At her initial visit on November 6, 2009, Dr. Cline took a sample for a cytology, which is a test designed to detect abnormal cells, and asked that she return on November 13, 2009, to conduct additional tests. On November 13, Dr. Cline conducted a CAT scan of the abdomen and pelvis that yielded normal results. He also conducted a cytoscopy, a procedure where the bladder wall is examined internally with a small flexible telescope, that also yielded normal results. He also informed Felts that the November 6 cytology yielded normal results.

On September 9, 2010, Felts and Ashby filed suit, seeking damages for the injuries they sustained from the accident, against Lawrence Casey and his automobile insurer, Hartford Insurance Company (hereinafter | {¡referred to as “Hartford”); Ashby’s insurer, GEICO; and, Felts’ uninsured motorist insurer, State Farm. Prior to trial, Felts and Ashby settled with Hartford for its $10,000 liability limits. Felts proceeded to trial against GEICO for uninsured/underinsured coverage on Ashby’s motorcycle, and State Farm for economic-only uninsured motorist coverage.

The bench trial commenced on February 28, 2012. Before trial, all parties stipulated to the $10,000.00 payment made by Hartford. Felts introduced the records [1116]*1116and bills of her treating physicians. Also, Ashby’s claims were dismissed.

The trial court found that Felts was injured when she was thrown off the motorcycle, and that she was without fault in causing and/or contributing to her injuries. General damages in the amount of $5,400.00 and special damages in the amount of $11,921.26 were awarded. The special damages included $6,286.12 for Felts’ treatment at Regional Urology, and $90.00 for testing at the Delta Pathology Group, LLC. The trial court assessed the general damages in the amount of $5,400.00 to GEICO. It also assessed $4,600.00 of the special damages award to GEICO, and $7,321.26 of the special damages award to State Farm.

Both GEICO and State Farm appeal the trial court’s judgment.

LAW AND DISCUSSION

Damages

In GEICO’s second assignment of error, it argues that the trial court erred in rendering judgment awarding certain medical specials and damages to Felts that were not proven at trial and contradictory to the findings of the |4trial court as expressed in its opinion. Similarly, in State Farm’s first assignment of error, it argues that the trial court erred in awarding medical specials for urological treatment received by Felts. We will discuss these two assignments together.

A trial court’s factual findings are accorded great weight and may not be disturbed by a reviewing court in the absence of manifest error. Rosell v. ESCO, 549 So.2d 840 (La.1989); Marshall v. Caddo Parish School Bd., 32,373 (La.App. 2 Cir. 10/29/99), 743 So.2d 943. Furthermore, it is the factfinder’s duty to weigh credibility and to accept or reject all or part of a witness’s testimony. As such, where there is conflict in testimony, reasonable evaluations of credibility should not be disturbed on appeal. Rosell, supra.

In a personal injury suit, the plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident which caused the injury. Maranto v. Goodyear Tire & Rubber Co., 94-2603 (La.2/20/95), 650 So.2d 757. The test for determining a causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by trauma suffered in the accident. Id.

The medical evidence must show that there is a “reasonable possibility” of a “causal connection” between the accident and the disabling condition. Morris v. Allstate Ins. Co., 25,148 (La.App. 2 Cir. 2/23/94), 632 So.2d 1209, writ denied, 94-1044 (La.6/17/94), 638 So.2d 1099. Or, the medical evidence must show that the nature of the accident, when combined [ awith other facts of the case, raises “a natural inference” through human experience that such a causal connection does exist. An exact medical diagnosis is not required. Id. Notably, a plaintiffs disability is presumed to have resulted from the accident if, before the accident the injured person was in good health, but subsequently the symptoms of a disabling condition appear and continuously manifest themselves thereafter, provided that the medical evidence establishes a reasonable possibility of a causal connection between the accident and the disabling condition. Marshall, supra.

Dr. Kevin Cline, a specialist in urology, treated Felts on November 6 & 13, 2009, and February 10, 2010. He concluded that Felts had a microscopic hematuria, but after conducting several tests, did not find [1117]*1117a pathologic cause for it. In his deposition, Dr. Cline opined that if Felts’ microscopic hematuria resulted from trauma, it should have been resolved by the February 10, 2010, visit.

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Related

Felts v. Casey
132 So. 3d 444 (Louisiana Court of Appeal, 2014)

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Bluebook (online)
111 So. 3d 1113, 2013 WL 811416, 2013 La. App. LEXIS 371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ashby-v-casey-lactapp-2013.