Broyard v. Rainer

850 So. 2d 793, 2003 La.App. 4 Cir. 0123, 2003 La. App. LEXIS 1929, 2003 WL 21498887
CourtLouisiana Court of Appeal
DecidedJune 18, 2003
DocketNo. 2003-CA-0123
StatusPublished
Cited by2 cases

This text of 850 So. 2d 793 (Broyard v. Rainer) 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
Broyard v. Rainer, 850 So. 2d 793, 2003 La.App. 4 Cir. 0123, 2003 La. App. LEXIS 1929, 2003 WL 21498887 (La. Ct. App. 2003).

Opinion

1 .WILLIAM H. BYRNES III, Chief Judge.

STATEMENT OF THE CASE

On October 25, 1999 Marie Louise Bro-yard filed suit for injuries allegedly sustained on January 15, 1999 when the taxicab in which she was riding was struck from the rear by a car driven by Theoplious Rainer, Jr. Ms. Broyard named as defendants Mr. Rainer, his insurer, Infinity Insurance Company (Infinity), the taxicab owner’s uninsured/underinsured motorist insurer, National Casualty Company (National), and Ms. Broyard’s uninsured/underinsured motorist insurer, State Farm Mutual Automobile Insurance Company (State Farm). According to the petition, Ms. Broyard claimed severe, permanent and disabling injuries to the structures, tissues and muscles of her body, including back, neck and knee sprains and sought compensation for past, present and future mental and physical pain and suffering, medical expenses, loss of enjoyment of life and any other damages available under state and federal constitutions.

National answered, specifically alleging Ms. Broyard’s failure to mitigate damages and third-party negligence, and cross-claimed against Mr. Rainer and Infinity for any damages for which it might be cast. State Farm answered with a I general denial and claim of offset to the extent of other available insurance and cross-claimed against Mr. Rainer, Infinity and National. Infinity answered, specially pleading comparative negligence and third-party negligence and alleging that Ms. Broyard’s injuries were caused by a subsequent injury unrelated to the accident in question.

National, Mr. Rainer and Infinity answered State Farm’s cross-claims.

. National filed a motion for summary judgment, and Infinity filed a motion for partial summary judgment seeking dismissal of claims for damages arising out of Ms. Broyard’s alleged subsequent fall at her daughter’s home. These motions were heard on November 7, 2001 and on November 14, 2001 the trial court rendered judgment in favor of National and Infinity dismissing Ms. Broyard’s claims for injuries caused by Ms. Broyard’s having fallen at her daughter’s home on January 17, 1999, subsequent to the accident in question. These injuries included a fracture of the right patella, sprain of the left ankle, sprain of the left wrist and injury to left shoulder first diagnosed on February 1, 1999. Ms. Broyard did not seek supervisory review of that judgment.

On Ms. Broyard’s motion and in light of her representation that she had settled her claim against State Farm, the trial court ordered State Farm’s dismissal on August 12, 2002.

On Infinity’s motion in limine seeking dismissal of its insured for Ms. Broyard’s failure to have served Mr. Rainer, the trial court dismissed with prejudice Ms. Bro-yard’s action against Mr. Rainer. On [797]*797State Farm’s motion, the h trial court dismissed with prejudice State Farm’s cross claims against Mr. Rainer and Infinity.

Following a bench trial on August 28, 2001, the trial court rendered judgment in favor of Ms. Broyard and against Infinity in the amount of $10,000 for general and special damages for past, present and future physical and mental pain and suffering and medical expenses, for all court costs and expert witness fees and judicial interest from the date of demand. The trial court also dismissed with prejudice Ms. Broyard’s claims against National.

From that judgment Ms. Broyard and Infinity appeal.

STATEMENT OF FACTS

The trial court found in its reasons for judgment that Ms. Broyard was a back seat passenger in a taxicab that was rear-ended while stopped at a stop sign on Chef Menteur Highway on January 15, 1999. After the accident, Ms. Broyard was taken to Ochsner Hospital.1 The trial court reviewed the expert testimony of Ms. Bro-yard’s treating physician, Dr. Michael Harlan, who examined her at the Ochsner emergency room. According to Dr. Harlan, Ms. Broyard complained only of a sharp, shooting chest pain and muscle aches. Significantly, she did not complain of right knee, left ankle or left wrist pain. Furthermore, the doctor’s musculoskeletal examination revealed no evidence of a fracture in her extremities, and she had a good range of motion of her joints and no joint tenderness or |4swelling. Dr. Harlan had her walk around to make sure there were no obvious fractures, and Ms. Broyard had no trouble doing this. Because of her complaint of chest pains, he ran an electrocardiogram (EKG) test that showed no change from Ms. Broyard’s last EKG, so that he was able to reassure her that the chest pain was not a signal of an injury to her heart. Dr. Harlan diagnosed musculo-skeletal chest pain of the chest wall (not the internal organs such as the heart) secondary to the accident.

The trial court found that on January 172 Ms. Broyard returned to the Ochsner emergency room complaining of right knee, left wrist and left ankle pain as a result of a fall at her daughter’s home earlier that day. Ms. Broyard gave a history of blacking out, although at trial she denied this history. Dr. Harlan again saw Ms. Broyard and diagnosed a . right knee fracture and sprains of her left wrist and ankle. His physical examination noted swelling and tenderness associated with pain over these areas.

Dr. Harlan opined that Ms. Broyard’s fall could have been caused by several factors, since she was then 74 years old with a diagnosed heart condition, coronary artery disease. Dr. Harlan did not connect the fall to the automobile accident.

Dr. Michael Wilson, an Ochsner orthopedic physician, treated Ms. Broyard for her fractured knee and ankle sprain from January 20,1999. He had no opinion as to the probable cause of her fall. Likewise, Dr. Joseph Murray, Jr., Ms. |,.¡Broyard’s primary treating physician, testified that he could not render an opinion as to the cause of her fall.

[798]*798The trial court noted Ms. Broyard’s testimony that she was stiff all over on the day of the second accident, that she could not move her legs, after the first accident and that her legs gave way when she attempted to stand up at her daughter’s home just prior to the second accident. Furthermore, the trial court found that this testimony was not corroborated by a single medical expert or treating physician or medical report of Ms. Broyard’s complaints to the doctors.

STANDARD OF REVIEW

In reviewing the factual findings of a trial court, an appellate court is limited to a determination of manifest error. Hill v. Morehouse Parish Police Jury, 95-1100 (La.1/16/96), p. 4, 666 So.2d 612, 614. Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742, 745; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Therefore, it is well settled that we as a court of appeal may not set aside the trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Where there is a conflict in the testimony, the trial court’s reasonable evaluations of credibility and reasonable inferences of fact will not be disturbed on review, even had we felt that our own evaluations and inferences would have been as reasonable. Stated another way, where, as here, there are two permissible views of the evidence concerning the cause of Ms. Broyard’s wrist, ankle and knee injuries, the fact finder’s choice between them | ¿Cannot be manifestly erroneous or clearly wrong.

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Bluebook (online)
850 So. 2d 793, 2003 La.App. 4 Cir. 0123, 2003 La. App. LEXIS 1929, 2003 WL 21498887, Counsel Stack Legal Research, https://law.counselstack.com/opinion/broyard-v-rainer-lactapp-2003.