Corder v. Lively

907 So. 2d 824, 2005 WL 1523217
CourtLouisiana Court of Appeal
DecidedJune 29, 2005
Docket39,780-CA
StatusPublished
Cited by7 cases

This text of 907 So. 2d 824 (Corder v. Lively) 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
Corder v. Lively, 907 So. 2d 824, 2005 WL 1523217 (La. Ct. App. 2005).

Opinion

907 So.2d 824 (2005)

Harley David CORDER, Plaintiff-Appellee
v.
Dorothy LIVELY and Farm Bureau Insurance Companies, Defendant-Appellants.

No. 39,780-CA.

Court of Appeal of Louisiana, Second Circuit.

June 29, 2005.

*826 John B. Hoychick, Rayville, for Appellants

Theo J. Coenen, III, Rayville, for Appellee

Before STEWART, GASKINS and MOORE, JJ.

*825 GASKINS, J.

The defendants, Dorothy Lively and her insurer, Farm Bureau Insurance Company (Farm Bureau), appeal from a trial court judgment awarding damages to the plaintiff, Harley David Corder, arising out of an auto accident. For the following reasons, we affirm in part, amend in part, and reverse in part the trial court judgment.

FACTS

On May 12, 2003, the plaintiff was driving his 1997 pickup truck which had a three-inch suspension lift. He was stopped at a red light in West Monroe when he was struck from behind by Dorothy Lively. She was driving a Pontiac Grand Am. The plaintiff filed suit against Ms. Lively and her insurer, Farm Bureau, for personal injury and property damage.

A bench trial was held on September 28, 2004. The parties stipulated that the plaintiff was hit from behind, that there was no issue of comparative negligence, *827 and that the plaintiff incurred medical expenses of $2,837.28. Disputed issues included the plaintiff's physical injuries, pain and suffering, vehicle damage, lost wages, and car rental expenses.

After hearing testimony and evidence, the trial court gave oral reasons for its decision. The court essentially stated that this was a close matter due to the numerous inconsistencies in the plaintiff's testimony and contradictions by other witnesses. The court found that the plaintiff had shown some damage, but not to the extent he was claiming. The court awarded $205.12 for repairing the truck, along with $2,500.00 for pain and suffering, $660.00 in lost wages, $485.92 in car rental, and $2,287.28 in medical bills. The awards for lost wages, car rental, and medical bills were reduced from what the plaintiff originally requested. The total amount of the award was $6,138.32. The court also awarded $200.00 in expert witness fees. A judgment to this effect was signed on October 5, 2004. The defendants appealed the trial court judgment.

DAMAGES

The defendants contend that the plaintiff failed to prove by a preponderance of the evidence that he suffered damages related to the accident in question. The defendants point out the numerous inconsistencies in the plaintiff's testimony showing his lack of credibility and argue that the trial court should have rejected his damage claims.

A trial court's factual findings are accorded great weight and will not be disturbed on appeal absent manifest error. Rosell v. ESCO, 549 So.2d 840 (La.1989). It is the duty of the trier of fact to weigh credibility and to accept or reject all or part of a witness's testimony. Marshall v. Caddo Parish School Board, 32,373 (La.App. 2d Cir.10/29/99), 743 So.2d 943. Where there is a conflict in the testimony, reasonable evaluations of credibility should not be disturbed on appeal. Rosell v. ESCO, supra. Where there are two permissible views of the evidence, the factfinder's choice cannot be manifestly erroneous or clearly wrong. Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880 (La.1993).

In a personal injury action, the plaintiff must prove by a preponderance of the evidence that the claimed injuries resulted from the accident at issue. Anderson v. Johnson, 39,109 (La.App. 2d Cir.1/26/05), 892 So.2d 174. The burden is met by proving through medical and lay testimony that it is more probable than not that the injury was caused by the accident. Whether the accident caused the plaintiff's injury is a factual question subject to the manifest error standard of review. Collins v. Shelter Mutual Insurance Company, 36,528 (La.App. 2d Cir.12/11/02), 833 So.2d 1166, writ denied, XXXX-XXXX (La.3/21/03), 840 So.2d 539.

When findings are based on determinations regarding the credibility of witnesses, the manifest error standard accords great deference to the trier of fact's findings; for only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Anderson v. Johnson, supra.

An appellate court should not substitute its opinion for the conclusions made by the district court, which is in a unique position to see and hear the witnesses as they testify. The trier of fact is not disadvantaged by the review of a cold record and is in a superior position to observe the nuances of demeanor evidence not revealed in the record. Anderson v. Johnson, supra.

*828 Personal Injury

The defendants contend that the plaintiff suffered only a minimal impact in this accident and that he injured his back picking up a tool at work a few days later. The defendants maintain that this was an independent or intervening cause of the plaintiff's back malady for which they are not liable.

In support of their argument that the plaintiff failed to prove damages, the defendants cite the plaintiff's inconsistent testimony regarding the accident. The plaintiff testified that he was stopped at a red light and Ms. Lively struck him from behind traveling at approximately 20-30 mph. He said that he felt a bump and did not know what it was. He got out and observed that Ms. Lively's car was "up underneath my trailer hitch on my truck." He claimed that Ms. Lively said that she was talking on her cell phone at the time of the accident.

On cross-examination, several discrepancies were brought out between the plaintiff's testimony and his deposition. At trial, he stated that Ms. Lively commented before the police arrived that she was going 20-30 mph when she hit him. In his deposition, he said she was going 30-35 mph and that she told this to the police.

Ms. Lively testified that on the date of the accident, she had just been released from the hospital. She was stopped behind the plaintiff at a stop light, but due to her weakened condition, she could not push down on the brake enough to keep from rolling into the plaintiff. She denied that she was talking on the phone or that she was traveling 20-30 mph.

The plaintiff testified that he did not experience any discomfort immediately after the impact, but went to the emergency room anyway to get checked out. At the emergency room, he complained of neck pain. He was given a shot for nausea and sent home. The next day he experienced some soreness. On May 14, the plaintiff said that he bent over to pick up a hammer at work and felt something in his lower back. He then contacted his lawyer and went to the physician recommended by the lawyer. He went to physical therapy for one month. He said that within three to four months after the accident, he was free of pain.

Dr. Dan LaFleur testified that he treated the plaintiff for lumbar strain caused by the accident. He stated that the plaintiff's complaints were all subjective and that he made no objective findings of back problems. Based upon the plaintiff's comments, he was diagnosed with lumbar strain secondary to a motor vehicle accident. He was treated with an anti-inflammatory, a muscle relaxer, and physical therapy. Dr. LaFleur stated that the plaintiff told him that he was hit from the rear by a driver doing 30-35 mph. The doctor said that he relied upon the plaintiff's statements.

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

Related

Jackson v. Lowe's Home Ctrs., L.L.C.
243 So. 3d 1262 (Louisiana Court of Appeal, 2018)
Politz v. Politz
149 So. 3d 805 (Louisiana Court of Appeal, 2014)
Badke v. USA Speedway, LLC
139 So. 3d 1117 (Louisiana Court of Appeal, 2014)
Lewis v. State Farm Ins. Co.
946 So. 2d 708 (Louisiana Court of Appeal, 2006)
Williams v. Enriquez
935 So. 2d 269 (Louisiana Court of Appeal, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
907 So. 2d 824, 2005 WL 1523217, Counsel Stack Legal Research, https://law.counselstack.com/opinion/corder-v-lively-lactapp-2005.