Berthelot v. Imes

459 So. 2d 1384
CourtLouisiana Court of Appeal
DecidedNovember 20, 1984
Docket83 CA 1283
StatusPublished
Cited by12 cases

This text of 459 So. 2d 1384 (Berthelot v. Imes) 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
Berthelot v. Imes, 459 So. 2d 1384 (La. Ct. App. 1984).

Opinion

459 So.2d 1384 (1984)

Lyndon Dale BERTHELOT, et al.
v.
Ivan IMES, Sr., et al.

No. 83 CA 1283.

Court of Appeal of Louisiana, First Circuit.

November 20, 1984.

*1385 Clinton Hyatt, Jr., Baton Rouge, for plaintiff-appellant.

Daniel R. Atkinson, Baton Rouge, for defendant-appellee.

Before COLE, CARTER and LANIER, JJ.

CARTER, Judge.

This is an appeal from the trial court award of damages sustained as a result of an automobile accident.

*1386 FACTS

On September 26, 1981, Mrs. Rebecca Berthelot, accompanied by her two minor children Beth Berthelot and Robbie Key, was involved in an automobile accident at the intersection of Sherwood Forest Boulevard and Harrell's Ferry Road in Baton Rouge, Louisiana. Mrs. Berthelot was driving a 1979 Oldsmobile in an easterly direction on Harrell's Ferry Road. When Mrs. Berthelot approached the intersection at Sherwood Forest, she had a favorable light. As she proceeded through the intersection, Mrs. Berthelot's vehicle was struck on the left rear side by a 1977 Oldsmobile station wagon driven by Mr. Ivan Imes, Sr. Upon impact, the Berthelot vehicle was forced into a third vehicle which was within the intersection headed west on Harrell's Ferry Road attempting a left turn. After this second impact, the Berthelot vehicle veered to the right and came to rest upon the apron of a service station on the southeast corner of the intersection.

Plaintiffs filed suit on January 22, 1982, alleging that Ivan Imes, Sr., driver of the vehicle, Ivan Imes, Jr., owner of the vehicle, and Maryland Casualty Company, Imes's insurer, were liable in solido for plaintiffs' injuries. Defendants answered denying plaintiffs' allegations and alternatively alleged that Mrs. Berthelot was either contributorily negligent, comparatively negligent, or had assumed the risk.

At trial, all counsel stipulated that: (1) based upon his negligence, Ivan Imes, Sr. was liable for the damages sustained; (2) Ivan Imes, Sr. and Ivan Imes, Jr. were released from any further liability; (3) all payments to plaintiffs for the injuries sustained would be collected from Maryland; and, (4) Maryland would not assert any coverage defenses in this claim.

The trial court determined that Robbie Key's knee had been injured prior to the automobile accident and awarded Robbie Key $2,000.00 for the aggravation of this pre-existing condition, together with special damages of $316.00.[1] Mrs. Berthelot was awarded $25,000.00 for her lower back injuries, together with special damages of $11,311.09, including $2500.00 for future medical expenses.[2] The trial court noted that a greater award was not given because an award for other damages would be too speculative. The court did not award damages for neck injuries or for urinary or stool problems because the evidence did not establish that the automobile accident had caused these problems. Beth Berthelot was awarded $2,000.00 for her injuries, together with special damages of $410.00.[3]

From this judgment, Mrs. Berthelot and Robbie Key appeal. Plaintiffs contend that the trial court erred in finding that:

(1) Robbie Key had sustained an injury to his left knee prior to the accident;
(2) Robbie Key failed to establish by a preponderance of the evidence that the automobile accident caused the injury to his left knee;
(3) The injury to Robbie Key's left knee was merely the aggravation of a pre-existing condition;
(4) The opinion of the defendant's physician was entitled to a weight equal to or greater than the weight accorded the opinion of the plaintiff's physician;
(5) Any award for Mrs. Berthelot's recommended surgery is too speculative; and,
(6) Mrs. Berthelot's cervical injuries are not causally related to the accident.

In their seventh assignment of error, plaintiffs contend that the award of damages to Robbie Key and Mrs. Berthelot is inadequate. *1387 Defendant Maryland Casualty Company answered plaintiffs' appeal contending that the trial court awards were excessive.

ASSIGNMENTS OF ERROR NOS. 1, 2, AND 3

In these assignments of error, plaintiffs contend that the injury to Robbie Key's left knee was a result of the automobile accident on September 26, 1981. Plaintiffs reason that they sustained the burden of establishing a causal connexity between the automobile accident and the injury. In support of this contention plaintiffs rely upon the testimony of the members of Robbie Key's family which indicates they were unaware of any injury to Robbie's left knee prior to September 26, 1981. Plaintiffs also rely on the testimony of Dr. John Loupe, treating physician.

The trial judge, in his written reasons for judgment, correctly and articulately evaluated the testimony as follows:

Robbie was ... seen in the emergency room of Our Lady of The Lake Hospital on the afternoon of the accident by the emergency room physician, Dr. Morris. The medical record of Dr. Morris (P-14A) indicates abrasion of the right knee, which obviously is incorrect, and also X-rays were ordered for the left knee which indicated soft tissue swelling but no fracture or dislocation noted. Robbie was next seen by Dr. W. Joseph Laughlin, orthopedic surgeon, on the 29th day of September, 1981. His physical examination revealed minimal tenderness to palpation of the left knee just below the knee cap. There was no evidence of torn ligaments and X-rays showed no evidence of fracture. Dr. Laughlin's initial impression was contusion of the left knee and he recommended activity restriction for a week and Robbie was asked to return on October the 7th for a follow-up visit. On this subsequent visit Robbie related that he had developed some swelling in the knee over the past week. The knee was aspirated and approximately an ounce of fluid was removed. Dr. Laughlin put him on crutches and asked him to return the following week. He was seen again on October 14th, his father had brought him in for that routine follow-up visit. Dr. Laughlin was still of the opinion that the problem would resolve on its own without significant residual. That was Dr. Laughlin's last contact with Robbie as he was next seen by Dr. John Loupe, also an orthopedic surgeon, on October 16, 1981.
According to Dr. Loupe (P-12) Robbie gave him a history of having injured his left knee at the beginning of football season and that he had had a problem with the knee since that time. He also informed Dr. Loupe of the automobile accident on September 26th, 1981. It was Dr. Loupe's impression, at the examination on October the 16th, that Robbie had sustained a tear of his medial meniscus of his left knee and suggested surgery. On November 20th, 1981 the Doctor performed an arthoscopic examination followed by an arthoscopic medical minescectomy. The evidence presented on the trial of his case, including the opinions of the two orthopedic surgeons who treated Robbie, presents a serious question as to causal connection between the injury sustained in the automobile accident on September 26th, 1981 and the surgery performed upon Robbie by Dr. Loupe for the repair of the medial meniscus to his left knee.
On direct examination at the trial Robbie was unequivocal that he had had no prior injuries to the left knee before the accident of September 26th, 1981, and further that he had participated in no further sports activities after Dr. Laughlin's initial examination of his knee on September the 29th of 1981.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Usé v. Usé
654 So. 2d 1355 (Louisiana Court of Appeal, 1995)
Bates v. Willis
613 So. 2d 691 (Louisiana Court of Appeal, 1993)
Combs v. Hartford Ins. Co.
544 So. 2d 583 (Louisiana Court of Appeal, 1989)
Mims v. Reliance Ins. Co.
535 So. 2d 1085 (Louisiana Court of Appeal, 1988)
Nathan v. Home Depot
522 So. 2d 712 (Louisiana Court of Appeal, 1988)
Wahden v. Sanders
507 So. 2d 862 (Louisiana Court of Appeal, 1987)
Harrigan v. Freeman
498 So. 2d 58 (Louisiana Court of Appeal, 1986)
Bonnett v. Theriot
491 So. 2d 703 (Louisiana Court of Appeal, 1986)
Ortigo v. Merritt
488 So. 2d 1051 (Louisiana Court of Appeal, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
459 So. 2d 1384, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berthelot-v-imes-lactapp-1984.