Barillas v. Carrion

692 So. 2d 1217, 1997 WL 131755
CourtLouisiana Court of Appeal
DecidedMarch 25, 1997
Docket96-CA-746
StatusPublished
Cited by5 cases

This text of 692 So. 2d 1217 (Barillas v. Carrion) 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
Barillas v. Carrion, 692 So. 2d 1217, 1997 WL 131755 (La. Ct. App. 1997).

Opinion

692 So.2d 1217 (1997)

Brenda BARILLAS
v.
Joan CARRION and Allstate Insurance Company.

No. 96-CA-746.

Court of Appeal of Louisiana, Fifth Circuit.

March 25, 1997.

*1218 J. William Starr, Metairie, for Plaintiff/Appellant.

James L. Donovan, Jr., Darrin M. O'Connor, Metairie, for Defendants/Appellees.

Before GAUDIN, DUFRESNE and WICKER, JJ.

WICKER, Judge.

This appeal arises from a petition for damages filed on behalf of Brenda Barillas,[1] plaintiff/appellant, against Joan Carrion, and Allstate Insurance Company, defendants/appellees, alleging injuries from a car accident. Carrion reconvened seeking damages from the car accident which involved vehicles driven by Barillas and Carrion. Carrion sued Louisiana Insurance Guaranty Association as the insurer of the losses of Liberty Lloyds Insurance Company, the alleged liability insurer of Barillas. Trial was bifurcated. As to liability, the jury found both Barillas and Carrion to be negligent and assessed Carrion to be 70% at fault and Barillas to be 30% at fault. The jury next heard the quantum claim of Barillas.[2] It found she had sustained injuries in the accident and awarded her $11,000 in general damages and $8,500 for past, present, and future medical expenses. Barillas now appeals on the issue of quantum. We affirm.

We note at the outset we issued a show cause order why the appeal should not be dismissed on the basis the record in this case did not contain a signed final judgment as required for appeal by La.Code Civ.Proc. art. 1911. This record was subsequently supplemented with a signed final judgment in conformity with the jury verdict. The signed final judgment has now cured the defect of a premature appeal, and having found no jurisdictional defect, we consider the merits of the appeal. Overmier v. Traylor, 475 So.2d 1094 (La.1985).

On appeal Barillas specifies the following errors:

1. It was reversible error for the jury to not award Barillas any real amount of damages for pain and suffering;
2. It was reversible error for the jury not to award Barillas at least $48,000 in general damages for her pain and suffering, and
3. It was reversible error for the jury to fail to award Barillas all of the medical bills which total $19,500.

*1219 Barillas notes that the jury awarded a total amount equal to the amount of medical expenses she introduced at trial. She suggests the jury simply split the medical expenses and in effect did not award her any general damages. She further suggests that the amount awarded by the jury for medical expenses does not have a logical cutoff point in bills presented at trial. Barillas, however, fails to note that the jury awarded medical expenses for past, present and future expenses. Future medical expenses are not susceptible to precise mathematical calculation. Bly v. Prudential Property and Cas. Ins. Co., 589 So.2d 495, 497 (La.App. 5th Cir.1991). The jury weighed conflicting evidence as to whether all of the injuries which Barillas alleged were causally related to the accident. Despite appellant's argument in brief that counsel "stipulated" to the medical bills, this court finds no indication in this record that counsel stipulated the bills were for treatment for injuries caused by this accident. The jury made a factual determination as to causation. It heard conflicting testimony from the medical witnesses as to the causal relationship between the treatment and the accident. It evidently concluded Barillas had not sustained all of the injuries alleged from the accident. This factual finding is not reversible unless the jury was manifestly erroneous. Pitard v. Davis, 599 So.2d 398, 401 (La.App. 5th Cir.1992). As discussed below, we find no manifest error in that conclusion. Furthermore, we disagree with appellants' suggestion the jury failed to award damages for pain and suffering since the jury clearly specified an amount for pain and suffering on the verdict form.

It is clear the jury concluded appellant had sustained injuries from the accident but that these were not as severe as she alleged. We now consider whether the jury abused its discretion in its damage award.

Appellant argues the jury abused its discretion in awarding only $11,000 in general damages for six years of pain and suffering. Appellant contends the jury abused its discretion in the award since she suffered for six years with cervical injuries as well as headaches and a Temporomandibular Joint (TMJ) disorder. She contends that the evidence was uncontroverted her injuries were caused by the accident. Further, she notes that all of her treating physicians testified that the treatment which they provided was related to the accident with the exception of Dr. Michael Puente, a neurologist, who only stated the accident may have caused her headaches.

The testimony at trial set forth the following.

Barillas testified as follows. She was involved in an automobile accident on August 13, 1989. Her face hit the steering wheel. The following day she went to Charity Hospital in New Orleans for treatment. At the time of trial she still had a residual scar on her chin from the accident. The Charity Hospital record was introduced at trial. It indicates she was treated for a laceration of the lip and that she had x-rays taken of the spine, mandible, left arm and femur. The bill from Charity Hospital totaled $416.50.

Barillas testified she had neck pain, back pain and headaches following the accident. Although the physicians at Charity Hospital asked her to return, she did not do so. Approximately two weeks later, she began treatment with Dr. Mark Bahr, a Chiropractor. While she improved with Dr. Bahr's treatment, her symptoms returned. She only obtained relief from neck and back pain with Dr. Bahr and had not obtained relief from her headaches. Her internist, Dr. Alden H. Baehr, referred her to Dr. Michael Puente. She was unemployed when she first saw Dr. Puente but was subsequently employed on the later visits.

Dr. Puente prescribed medication which did not alleviate the headaches. She next saw Dr. D.C. Mohnot, a neurologist. Dr. Mohnot prescribed medication for insomnia and for headaches. She only had temporary relief and still continued to have neck pain, back pain and headaches.

She then saw Dr. Francis J. Alessi, an expert in thoracic surgery, on one occasion. She also saw Dr. Edna Doyle, an expert in the field of physical medicine and rehabilitation, who referred her to Bruno Steiner for physical therapy. She went to physical therapy four times a week for 45-minute sessions. *1220 Steiner relieved the pain but she still continued to have headaches.

She testified she saw Dr. Larry McMillan, a prosthodontist, and was still being treated by him at the time of trial. He prescribed a splint. Her headaches have lessened. Her back pain had improved at the time of trial but she still voiced complaints of back pain.

After the accident she was unable to ride a bicycle, do housework, or wash her hair. At the time of trial she was able to resume these activities.

The jury heard testimony from Barillas that she gave inaccurate information under oath when she filled out an affidavit in this court record. She admitted she stated on the affidavit she was not employed when she was actually employed. The affidavit was filed in connection with her request to waive court costs. Barillas also admitted she did not fill out an employment form truthfully because she denied on the form having any injuries where she could not perform her job.

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Bluebook (online)
692 So. 2d 1217, 1997 WL 131755, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barillas-v-carrion-lactapp-1997.