Barzare v. Transit Casualty Co.

539 So. 2d 708, 1989 La. App. LEXIS 181, 1989 WL 10654
CourtLouisiana Court of Appeal
DecidedFebruary 8, 1989
DocketNo. 87-1187
StatusPublished
Cited by1 cases

This text of 539 So. 2d 708 (Barzare v. Transit Casualty 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
Barzare v. Transit Casualty Co., 539 So. 2d 708, 1989 La. App. LEXIS 181, 1989 WL 10654 (La. Ct. App. 1989).

Opinion

GUIDRY, Judge.

Defendants appeal as excessive a jury award for damages sustained by plaintiff in a vehicular accident. We amend the award.

This suit was brought by plaintiff-appel-lee for damages allegedly sustained in an automobile accident which occurred on February 18, 1985, east of Ville Platte, Louisiana, on U.S. Highway 167. One of the appellants, Keith Mattocks, while operating a truck in the course and scope of his employment with Alexandria Petroleum Company, Inc., rear-ended a pickup truck which was owned and being operated by the appellee, Elridge Barzare.

Prior to trial, appellants stipulated to liability. The only issue presented to the jury was the amount of damages to which plaintiff was entitled. The plaintiff hjid been paid his property damages prior to trial and, as he was retired at the time of the [709]*709accident, he did not have a claim for loss of wages. Accordingly, the only damages he could recover, and the only damages he alleges he suffered, are his past and future medical expenses and general damages for his pain and suffering.

This suit has a long and active history. Suit was originally filed August 19, 1985, by Elridge Barzare against Transit Casualty Company, the liability insurer of Alexandria Petroleum Company, Inc. Subsequently, Alexandria and Mattocks were added as co-defendants.

The first jury trial in this matter was held on May 14 and 15, 1986, with the jury returning a total award of $80,000.00, consisting of past medical expenses of $2,000.00, future medical expenses of $25,-000.00 and general damages of $53,000.00. On May 19, 1986, the trial judge signed a judgment in accord with the jury verdict awarding the appellee $80,000.00. Appellant filed a motion for new trial and in the alternative for a remittitur. The court granted defendant’s motion and on July 7, 1986, ordered a remittitur reducing the award to $28,720.00: $2,000.00 for past medical expenses, $1,720.00 for future medical expenses and $25,000.00 for pain and suffering and, in the alternative, a new trial. Appellee subsequently rejected the remittitur and the trial court ordered a new trial.

Following the second jury trial which was held April 6 and 7, 1987, the jury returned a verdict for $61,500.00, itemized as follows: past medical expenses— $3,500.00, future medical expenses — $18,-000.00 and general damages — $40,000.00. The trial court signed a judgment in conformity with the jury verdict and the defendants appealed.

On appeal defendants-appellants contend that each item of the jury’s damage award is excessive. Additionally, appellants urge that the trial court erred in assessing all costs against appellants, even though the second trial on the merits was the result of the appellee rejecting the trial court’s re-mittitur.

The accident happened on Monday, February 18, 1985. It was investigated by Trooper Richard Ortego, who testified that no one involved in the accident complained of any injury. Plaintiff admitted that right after the accident, his main concern was how to get his pickup truck home.

Barzare testified that he started experiencing pain shortly after the accident, but it was not until he woke up dizzy on the following Thursday morning that he sought medical treatment. At that time, Barzare consulted Dr. Frank Savoy, who diagnosed plaintiff as having a whiplash and prescribed some “pain pills”. The following week, when plaintiff returned to see Dr. Frank Savoy, he was out of town so plaintiff began seeing Dr. Gregory Savoy.

Dr. Gregory Savoy first saw the plaintiff on February 26, 1985. At that time, appel-lee’s main complaint was dizziness. Dr. Savoy felt the dizziness was the result of the medication he was taking, i.e., a muscle relaxant. Dr. Savoy noted some spasm in appellee’s neck, but only on rotation. On this initial visit, appellee voiced no complaint regarding the spasm in his neck.

Dr. Savoy next saw appellee on March 22, 1985, at which time he complained of pain in his neck and shoulders. The doctor opined that plaintiff’s neck and shoulder pain was the result of muscle spasm as opposed to some type of boney injury. He prescribed a new muscle relaxant, which hopefully would not cause plaintiff any dizziness. Although Dr. Savoy continued to see the plaintiff after the March 22, 1985, visit, it was not for complaints connected with the February accident, but rather for an unrelated condition.

Barzare was not satisfied with the treatment provided by Dr. Savoy and decided to consult Dr. Alton Ray LeJeune, a chiropractor. Plaintiff first saw Dr. LeJeune on April 1,1985. The doctor opined that plaintiff was suffering from an acute strain and sprain of the cervical spine with a hyperex-tension due to hyperflexion. Between April 1, 1985, and the date of the second trial, Dr. LeJeune treated Barzare 54 times. At trial, Dr. LeJeune testified that, although plaintiff had improved since treatments started, he had not recovered completely and that, due to his age, he expect[710]*710ed Barzare to require treatments for the rest of his life. According to the American Experience Table of Mortality in La.R.S. 47:2405, plaintiff’s life expectancy, reckoning from the date of the second trial, is 11.67 years. Dr. LeJeune stated that his current charge for an office visit and accompanying treatment is $60.00 per session and that Barzare needed two treatments per month during warm weather and four treatments per month during the winter. He further stated that up to the date of trial, Barzare had incurred $2,845.19 in charges for professional services.

During the same time he was being treated by Dr. LeJeune, Barzare consulted Dr. Steven J. Snatic, a board certified neurologist in Lafayette. Dr. Snatic saw plaintiff on July 16, 1986, and, after examining him, found mildly restricted motion of the neck in all directions. He reviewed the x-rays taken by Dr. LeJeune and ultimately concluded that Barzare had occipital neuritis and cervical spondylosis, the former being related to the accident and the latter to plaintiff’s age. Dr. Snatic injected plaintiff with an anti-inflammatory drug, prescribed an oral non-steroidal anti-inflammatory and ordered physical therapy. Plaintiff received physical therapy at Humana Hospital in Ville Platte for eleven days. The parties stipulated that the cost of the therapy was $574.30. Barzare returned one time to Dr. Snatic, July 24, 1986, reporting that he had gotten a great deal of relief. He still complained of headaches but these were relieved by Tylenol.

To sum up the medical testimony, the record reflects that plaintiff sustained a whiplash injury (cervical strain and sprain) which also aggravated a pre-existing cervical spondylosis.

Barzare testified that he was symptom-free before the accident, but now he has neck pain and headaches frequently. He stated that Tylenol relieves his headaches and that treatments from Dr. LeJeune help his neck pain. Plaintiff stated that following his accident, many of his leisure activities, such as gardening, camping and hunting, were adversely affected. In rebuttal, it was established that in 1981, Barzare underwent a triple coronary by-pass operation and, following this procedure, his doctor no longer allowed him to use a tiller, so his gardening was restricted at that time. Further, appellee admitted that following his surgery, his hunting was likewise curtailed.

While plaintiff contends that he is still in pain and in need of treatments from Dr.

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Bluebook (online)
539 So. 2d 708, 1989 La. App. LEXIS 181, 1989 WL 10654, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barzare-v-transit-casualty-co-lactapp-1989.