Clement v. Carbon

153 So. 3d 460, 2014 WL 1386820, 2014 La. App. LEXIS 962
CourtLouisiana Court of Appeal
DecidedApril 9, 2014
DocketNo. 13-CA-827
StatusPublished
Cited by14 cases

This text of 153 So. 3d 460 (Clement v. Carbon) 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
Clement v. Carbon, 153 So. 3d 460, 2014 WL 1386820, 2014 La. App. LEXIS 962 (La. Ct. App. 2014).

Opinion

MARC E. JOHNSON, Judge.

|2In this automobile accident case, Plaintiff, Nykareha Clement, appeals the trial court’s judgment in favor of Defendant, Allstate Insurance Company (“Allstate”), dismissing her claims. .For the reasons that follow, we reverse.

Plaintiff filed suit on February 11, 2011, alleging she suffered personal injuries and damages in an automobile accident that occurred on May 25, 2010. She named as defendants: Nicole Carbon, as the tortfea-sor; Ms. Carbon’s father Frank Carbon, as the named insured for the offending vehicle; Allstate, as insurer of the offending vehicle; and State Farm Mutual Automobile Insurance Company, as Plaintiff’s uninsured/underinsured motorist carrier.1 Prior to trial, Plaintiff stipulated that her damages did not exceed $50,000. The matter proceeded to a bench trial on May 23, 2013. At the beginning of trial, Plaintiff agreed to dismiss the Carbons, and Allstate stipulated to liability.

|aThe evidence at trial showed that on May 25, 2010, Plaintiff was stopped at a stop sign at Bonnabel Blvd. and Codifer Blvd. in Metairie when the car she was driving was struck from behind by a vehi-[462]*462ele driven by Nicole Carbon. According to Ms. Carbon, she was stopped behind Plaintiff at the stop sign. When Plaintiff started to inch forward, Ms. Carbon took her foot off the brake and struck the rear of Plaintiffs car when Plaintiff re-applied her brakes. Conversely, Plaintiff testified that Ms. Carbon was traveling anywhere between 25 and 45 mph at the time of impact. The impact caused $286.44 in property damage to Plaintiffs car and no damage to Ms. Carbon’s vehicle.

Plaintiff sought medical treatment the next day at the River Parish Hospital emergency room for neck pain. The emergency room physician noted a right trapezius spasm and diagnosed Plaintiff with whiplash. She was given an anti-inflammatory and a muscle relaxer, and instructed to follow up with her primary care physician.

The next day, on May 27, 2010, Plaintiff sought treatment with Dr. Robert Dale, a chiropractor at River Parishes Chiropractic. According to Dr. Dale, Plaintiff primarily complained of neck pain and right upper thoracic pain with weakness in the right arm. She also complained of low back pain and right hip pain. His physical exam revealed Plaintiff had restricted range of motion of the cervical spine with severe pain in right rotation, weakness in her right arm and hand, and loss of lumbar movement. Dr. Dale’s treatment consisted of ultrasound, interferential electrother-apy, ice packs to reduce her cervical spasms, and dry hydrotherapy.

Dr. Dale continued to treat Plaintiff 51 times over .the following 13 months, until June 2011. Dr. Dale testified that treatment of Plaintiffs low back and right hip area was highly successful, with the last treatment to those areas occurring in [^December 2010. Thereafter, he focused his treatment on Plaintiffs cervical area and right thoracic area. However, Dr. Dale explained that’ Plaintiff did not respond well to treatment and continued to complain of weakness in the right arm and decreased sensation in the right hand. He testified that Plaintiff had persistent differences in the strength of her right arm; specifically, her right arm was weaker than her left arm.- Because of Plaintiffs continued complaints and lack of improvement, Dr. Dale suspected she had some disc damage that was causing her neck and shoulder problems. As a result, on March 18, 2011, Dr. Dale requested a cervical MRI.

On May 17, 2011, prior to obtaining the MRI ordered by Dr. Dale, Plaintiff was involved in a second automobile accident. She saw Dr. Dale after this second accident on May 25, 2011. At that time, Plaintiff told Dr. Dale that the second accident slightly aggravated her neck problems, but claimed there was not much change in her neck condition. She still had the right arm issues and intermittent hand numbness, which she had experienced prior to the second accident. Plaintiffs primary complaint from the second accident was low back and left hip pain.

A cervical MRI was performed on May 26, 2011, and showed a bulge of the C5-6 disc and some ligamentous thickening at the C6-7 vertebra, which according to Dr. Dale indicated some damage to the ligament and possible ¿carring. Dr. Dale opined that it was more likely than not that the disc problems were the result of the first accident because Plaintiff had consistently complained of neck pain and radicular symptoms after the first accident and prior to the second accident.

Dr. Dale stopped treating Plaintiffs neck pain after the second accident because he had referred her for medical evaluation based on the MRI results. [¡¡However, he continued to treat Plaintiff for the low back and hip pain she experi[463]*463enced after the second accident through January 2012.

Plaintiff testified that after Dr. Dale referred her to specialists, she saw Dr. Thad Broussard, an orthopedic surgeon, and Dr. David Wyatt, an orthopedist. Neither of these doctors testified, but their medical records were introduced into evidence. Dr. Broussard’s records show that he examined Plaintiff on June 15, 2011. He reported that Plaintiff complained of neck and back pain and numbness or sensory loss in her right hand. He reviewed her MRI and noted a bulging disc at C5-6. Dr. Broussard diagnosed Plaintiff with a cervical sprain, cervical disc disease, and low back syndrome. He believed that she had probably reached maximum medical improvement and was not a surgical candidate. He further believed she should discontinue chiropractic care. He prescribed an anti-inflammatory and gave her an injection.

Dr. Wyatt’s records show that he first saw Plaintiff on January 20, 2012, at which time she complained of back and left hip pain. Dr. Wyatt’s records show that Plaintiff only related an automobile accident of May 2010; however, Plaintiff testified at trial that she told Dr. Wyatt that she had been in two accidents, one in May 2010 and one in May 2011. Dr. Wyatt prescribed an anti-inflammatory and recommended she continue with chiropractic care. Dr. Wyatt next saw Plaintiff on August 16, 2012, and prescribed a back brace.

After Plaintiff concluded her case, Allstate called its only witness, David Centan-ni, a private investigator. Mr. Centanni testified that he conducted surveillance on Plaintiff four times in July 2012, but only actually observed Plaintiff on one occasion. On that one occasion, Mr. Centanni observed Plaintiff for a total of ten minutes and saw Plaintiff walk towards her residence and then he saw her leave her residence.

| fiAt the conclusion of trial, the trial court took the matter under advisement. It rendered judgment the next day in favor of Allstate and against Plaintiff. In its reasons for judgment, the trial court stated that it found Plaintiff and her case lacked credibility, and it believed Plaintiff was hurt in the second accident and not the first and, therefore, should not recover in this case.

Plaintiff appeals the trial court’s judgment and raises three issues. First, she contends the trial court improperly considered the settlement amount for her second accident. Second, she argues the trial court erred in allowing Allstate to call a witness who was not listed on the witness list under the guise of being a rebuttal witness. And, third, Plaintiff maintains the trial court was manifestly erroneous in refusing to accept uncontroverted evidence and award her damages.

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153 So. 3d 460, 2014 WL 1386820, 2014 La. App. LEXIS 962, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clement-v-carbon-lactapp-2014.