Bennett v. LOUISIANA FARM BUREAU CAS. INS.

983 So. 2d 966, 2008 La. App. LEXIS 615, 2008 WL 1886388
CourtLouisiana Court of Appeal
DecidedApril 30, 2008
Docket43,216-CA
StatusPublished
Cited by14 cases

This text of 983 So. 2d 966 (Bennett v. LOUISIANA FARM BUREAU CAS. INS.) 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
Bennett v. LOUISIANA FARM BUREAU CAS. INS., 983 So. 2d 966, 2008 La. App. LEXIS 615, 2008 WL 1886388 (La. Ct. App. 2008).

Opinion

983 So.2d 966 (2008)

Christina BENNETT, Plaintiff-Appellee,
v.
LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY, et al., Defendants-Appellants.

No. 43,216-CA.

Court of Appeal of Louisiana, Second Circuit.

April 30, 2008.

*968 Cotton, Bolton, Hoychick & Doughty, LLP by John B. Hoychick, Rayville, for Appellants, William Marsh and Louisiana Farm Bureau Casualty Ins. Co.

*969 William E. Armstrong, Monroe, for Appellee.

Before STEWART, CARAWAY and DREW, JJ.

CARAWAY, J.

The plaintiff sued the driver of the vehicle who rear-ended her car as she stopped at an intersection to make a right turn. Plaintiff's claim concerned a soft tissue injury to her back, and she additionally sought damage for the future medical expense of breast reduction surgery. The trial court determined that as of the time of trial, 32 months after the accident, plaintiff's back injury had not resolved and that the future surgery was required. Finding those conclusions unsupported by the medical evidence, we reduce the trial court's awards for general and special damages, and as amended, affirm the judgment in favor of plaintiff.

Facts

On the afternoon of December 14, 2004, Christina Bennett traveled north in her compact car on Garrett Road in Monroe when she came to a stop at the intersection of Garrett and Millhaven Roads. She intended to make a right turn. William Marsh followed Bennett in his half-ton pickup truck. Both drivers recalled that Bennett initially stopped at the stop sign as she checked for oncoming traffic before beginning execution of a right turn onto Millhaven Road. Bennett admitted that after the initial stop, she began to move forward a short distance but stopped again due to oncoming traffic. Marsh testified that as Bennett moved forward, he believed she was going to complete the turn so he began looking left to check traffic. He admitted to never looking forward again and to removing his foot from the brake which caused the collision.

Marsh estimated that his truck moved at a speed of 5 miles per hour and a distance of approximately 10 feet into the back of Bennett's car. The right front bumper of Marsh's truck struck the left rear bumper and tail light of Bennett's car. Marsh described the impact as minimal, while Bennett depicted the collision as "hard."[1] The impact caused damage to Bennett's vehicle, but no damage to Marsh's truck. Bennett estimated that the force of the impact moved her car a couple of feet. Marsh did not think the impact moved Bennett's car at all. Marsh recollected that after the accident Bennett's car was partly on Millhaven Road. A police diagram of the accident scene contradicted Marsh's testimony and showed that Bennett's car remained fully on Garrett Road. Marsh was ticketed for following too closely; he paid the ticket without contest.

Bennett, who was 37 years old at the time of the accident, recognized no immediate injury. The following day she began to experience back and neck pain. She saw her treating physician, Dr. Michael Hayward, who prescribed pain medication and gave Bennett a two-day work excuse. She also sought treatment with family practitioner, Dr. Warren Daniel, on December 16, 2004. Dr. Daniel treated Warren for mid and lower back pain until he released her on June 29, 2005.

By mid-February of 2005, Bennett was not responding as Dr. Daniel expected and he referred her to orthopedist, Dr. Douglas Brown. At her initial visit on March 3, 2005, with Dr. Brown, Bennett complained of low back pain which she related to the December 14th accident. Dr. Brown noted that Bennett had increased lordosis or a swayed back condition due to large breasts and a weight condition. Dr. *970 Brown diagnosed Bennett with acute lumbar strain and eventually recommended breast reduction surgery. Dr. Brown concluded that Bennett's acute lumbar strain was resolved by May 10, 2005, after she responded to aggressive physical therapy. Bennett last saw Dr. Brown on August 1, 2005.

Bennett instituted a suit for damages arising from the rear-end collision against Marsh and his insurer, Louisiana Farm Bureau Casualty Insurance Company ("Farm Bureau"). Bennett alleged that Marsh was solely at fault in causing the accident and sought damages for the personal injuries she received as the result of the accident. Included in Bennett's claim for damages was a request for the cost of future breast reduction surgery.

After trial of the issues on August 20, 2007, Marsh was assessed with total fault in causing the accident. Bennett received damages for a 32-month injury (date of accident until trial), including $48,000 general damages and $24,354.84 special damages. The special damages awarded included $10,550 for the cost of future breast reduction surgery. On appeal, Marsh contests the fault allocation of the trial court as well as the trial court's determination that Bennett suffered a 32-month injury. Marsh also appeals the general damage award as excessive and complains that the trial court erred in awarding Bennett damages for future breast reduction surgery costs.

Discussion

I.

The trier of fact is required to compare the relative fault of the parties in assessing liability. In allocating fault, the trial court must consider the nature of each party's conduct and the extent of the causal relationship between that conduct and the damages claimed. Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967 (La.1985); Morris v. Flores, 36,932 (La.App.2d Cir.3/7/03), 840 So.2d 1257; McCullin v. U.S. Agencies Casualty Ins. Co., 34,661 (La.App.2d Cir.5/9/01), 786 So.2d 269. Factors which may influence the degree of fault assigned to each party include: (1) whether the conduct resulted from inadvertence or involved an awareness of danger; (2) how great a risk the conduct created; (3) the significance of what the actors sought by the conduct; (4) the capacities of the actors, whether superior or inferior; and (5) any extenuating circumstances which might require the actors to proceed in haste, without proper forethought. Watson, supra; McCullin, supra. The law of comparative fault is applicable in cases involving automobile accidents. Moore v. Rowland, 32,644 (La. App.2d Cir.3/1/00), 753 So.2d 411; Ortigo v. Merritt, 488 So.2d 1051 (La.App. 2d Cir.1986).

The trial court's apportionment of fault is a factual determination subject to the manifest error standard of review. Moore, supra; Williams v. City of Monroe, 27,065 (La.App.2d Cir.7/3/95), 658 So.2d 820, writs denied, 95-1998 (La.12/15/95), 664 So.2d 451, 95-2017 (La.12/15/95), 664 So.2d 452.

A motorist's duty of care includes the duty to keep his vehicle under control and to maintain a proper lookout for hazards. Williams, supra. A motorist must use such diligence and care in the operation of his vehicle as is commensurate with the circumstances. Edwards v. Horstman, 96-1403 (La.2/25/97), 687 So.2d 1007.

La. R.S. 32:81 imposes a duty on a motorist to not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and condition of the highway. A following motorist *971 in a rear-end collision is presumed to have breached this duty and is therefore presumed negligent. Mart v. Hill, 505 So.2d 1120 (La.1987); Boggs v. Voss, 31,965 (La.App.2d Cir.6/16/99), 741 So.2d 139.

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Bluebook (online)
983 So. 2d 966, 2008 La. App. LEXIS 615, 2008 WL 1886388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bennett-v-louisiana-farm-bureau-cas-ins-lactapp-2008.