STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
04-933
DANIEL K. MURCHISON, ET AL.
VERSUS
LYNDON PROPERTY INS. CO., ET AL.
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 99-5712 HONORABLE WILFORD D. CARTER, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Michael G. Sullivan, Judges.
AFFIRMED IN PART; REVERSED IN PART; AMENDED IN PART; AND RENDERED.
Nathan A. Cormie Nathan A. Cormie & Associates P. O. Box 1626 Lake Charles, LA 70602 Telephone: (337) 439-2422 COUNSEL FOR: Plaintiffs/Appellees - Daniel K. Murchison and Ellen Murchison
Larry A. Roach, Jr. Larry A. Roach, Inc. 2917 Ryan Street Lake Charles, LA 70601 Telephone: (337) 433-8504 COUNSEL FOR: Plaintiffs/Appellees - Daniel K. Murchison and Ellen Murchison Christopher Paul Ieyoub Plauche, Smith & Nieset P. O. Drawer 1705 Lake Charles, LA 70602 Telephone: (337) 436-0522 COUNSEL FOR: Defendants/Appellants - City of Lake Charles and Timothy Richards THIBODEAUX, Chief Judge.
In this personal injury claim arising out of an automobile accident case,
defendants, Officer Timothy Richards (Officer Richards) and the City of Lake
Charles, appeal the JNOV granted to plaintiffs, Daniel Murchison and his mother,
Ellen Murchison, in which fault and damages were reapportioned in light of the jury
verdict. Further, appellants request that the provisional grant of a new trial be
reversed.
Officer Richards directed traffic at the intersection of McNeese and
Common Streets in Lake Charles, Louisiana, after finding a truck stalled in the turn
lane. Mr. Murchison proceeded through the intersection following Officer Richards’
orders, at which point he was broadsided twice by oncoming traffic.
The record supports the JNOV in the reallocation of fault; however, we
find the reallocation of damages is not supported. In addition, we find no basis for
the conditional grant of a new trial. For the following reasons, we reverse in part;
affirm in part; amend in part; and render our judgment.
I.
ISSUES
We shall consider:
1) whether the JNOV was proper regarding the reallocation of fault and damages;
2) whether the trial judge should have recognized the stipulated credit of $4,037.29 towards the actual cash value of the plaintiff’s mother’s car; and,
3) whether the grant of a new trial was proper.
1 II.
FACTS
On September 10, 1998, after finding a truck stalled in the turn lane of
the busy intersection, Officer Richards placed himself into the middle of the
intersection of McNeese and Common Streets in Lake Charles, Louisiana and began
directing traffic. The plaintiff, Mr. Murchison, operating a vehicle owned by his
mother, was heading north on Common Street. Officer Richards positioned himself
on McNeese Street and could not see the traffic signal overhead. Officer Richards
proceeded to direct traffic eastbound to westbound, westbound to eastbound, and then
southbound to northbound. Despite the fact that the traffic signal above was red,
Officer Richards gave the northbound-to-southbound traffic the signal to proceed.
Mr. Murchison heeded the officer’s instruction and continued to cross the
intersection. While turning, he was broadsided by a vehicle driven by Ms. Gloria
Istre, and a few seconds later, broadsided by another vehicle driven by Ms. Donna
Suire. Mr. Murchison claims injuries as a result of this accident, and brought suit
against the City of Lake Charles, Officer Richards, Ms. Istre, and Ms. Suire.
The jury returned a verdict and assessed fault in the following
percentages: City of Lake Charles and Officer Richards, twenty-eight percent (28%);
Ms. Istre, twenty percent (20%); Ms. Suire, twenty percent (20%); and the plaintiff,
Mr. Murchison, thirty-two percent (32%). The jury awarded damages of $16,954.00
for Mr. Murchison and $4,000.00 to his mother for the actual cash value of her car.
Mr. Murchison filed a JNOV and, in the alternative, a request for a new trial. The
trial court granted the JNOV and reassessed fault in the following manner: City of
Lake Charles and Officer Richards, seventy percent (70%); Ms. Istre, ten percent
(10%); Ms. Suire’s allocation of fault remained the same, twenty percent (20%); and
2 plaintiff, Mr. Murchison, zero percent (0%). The trial court assessed damages and
awarded $151,842.83 for medical bills, $20,000.00 for loss of enjoyment of life,
$100,000.00 for pain and suffering, and $200,000.00 for loss of future earning
capacity. In the alternative, the trial court granted conditionally a new trial.
Defendants-appellants assert that the trial judge abused its discretion and
ignored the JNOV standard in reallocating fault and damages. In addition, they ask
the JNOV be amended to include the stipulated damage award in the amount of
$4,037.29 for damages paid to Ellen Murchison for her vehicle. They further request
that the conditional grant of a new trial be reversed.
III.
LAW AND DISCUSSION
Louisiana Code of Civil Procedure Article 1811 controls the use of a
judgment notwithstanding the verdict (JNOV). Although the Article does not specify
the grounds on which a trial judge may grant a JNOV, the supreme court in Joseph
v. Broussard Rice Mill, 00-628 (La. 10/30/00), 772 So.2d 94, sets forth the criteria
in determining when a JNOV is proper. A JNOV is proper when the facts and
inferences point so strongly and overwhelmingly in favor of one party that the trial
court believes that reasonable persons could not arrive at a contrary verdict. Id. If
the JNOV is found to be proper, the appellate court reviews the JNOV using the
manifest error standard of review. Davis v. Wal-Mart Stores, Inc., 00-445, p. 5 (La.
11/28/00), 774 So.2d 84, 89.
Allocation of Fault
On review of the record, appellate courts use the same criteria utilized
by a trial judge in determining whether the trial judge erred in granting the JNOV to
3 the jury’s apportionment of fault. Defendants contend that the trial court erred in its
reallocation of fault, particularly the finding that Mr. Murchison had no fault and the
consequent lowering of his percentage to zero (0%). In this case, we must ask
whether the facts and inferences point so strongly and overwhelmingly in favor of
Mr. Murchison that reasonable persons could not arrive at a contrary verdict. We find
the trial court properly granted plaintiff’s motion for JNOV, reversing the jury’s
allocation of fault.
We agree with the trial court in finding that there was no comparative
negligence on the part of the plaintiff, Mr. Murchison. Louisiana Revised Statutes
32:56(A) clearly states, “No person shall fail or refuse to comply with any lawful
order or direction of any police officer or weights and standards police officer
invested by law with authority to direct, control, or regulate traffic.” Furthermore, in
Monceaux v. Jennings Rice Drier, Inc., 590 So.2d 672, 675 (La.App. 3 Cir. 1991),
this court explained that when a law enforcement officer becomes aware of a
dangerous traffic situation, he has the affirmative duty to see the motorists are not
subjected to unreasonable risks of harm. Believing that he was obeying the law, Mr.
Murchison followed the directive of Officer Richards. Mr. Murchison could not and
did not know the risks involved as a result of proceeding through the intersection.
Officer Richards placed himself in a position of authority and commanded the drivers,
taking on the duty to protect motorists. Using the standard set forth, reasonable
persons could not have found Mr. Murchison at fault.
In Watson v. State Farm Fire and Casualty Insurance Co., 469 So.2d
967 (La.1985), the supreme court established that both the nature of the conduct of
each party at fault and the extent of the causal relation between the conduct and
4 damages claimed are to be considered in determining percentages of fault. Moreover,
the supreme court explained:
In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstance which might require the actor to proceed in haste, without proper thought.
Id. at 974. Using the Watson factors, we agree that Officer Richards was proximately
at fault in causing the accident. He was in the best position to deter this accident; in
his capacity as a police officer he had a superior role during the event; his conduct
created the risk; and, he was clearly under a duty to be aware of the dangers. In
addition, he admitted he was negligent in his supervision of the intersection. With
regard to Ms. Istre, the first driver to broadside Mr. Murchison, and Ms. Suire, the
second driver, we agree that they have some responsibility in the fault of this
accident. We find the record supports that Ms. Suire was in a better position to
prevent the second hit and, therefore, more culpable then Ms. Istre. We find that the
trial judge was not manifestly erroneous in his determination of fault.
Allocation of Damages
Mr. Murchison suffered injuries from the accident on September 10,
1998. He visited a chiropractor to treat pain in his neck, back, and shoulder. He
completed treatment with his chiropractor on December 15, 1998. Mr. Murchison
also sought treatment from an orthopedist, Dr. R. Dale Bernauer. Although Dr.
Bernauer found no problems in either Mr. Murchison’s x-rays or his physical
examination, he treated him for spraining and straining injuries until February 17,
1999, when he released the patient from his care. On March 3, 1999, Mr. Murchison
5 returned to the chiropractor after injuring his back while lifting a heavy box. At that
time, he filled out a questionnaire stating that he could perform everyday activities
normally, such as working, lifting, driving, and caring for himself.
On August 18, 1999, Mr. Murchison again returned to his chiropractor
for treatment after suffering an injury while repairing the floor in his mother’s home.
Mr. Murchison sought treatment from Dr. Bernauer, who ordered MRI’s of the
plaintiff’s neck and back. These MRI’s, taken October 13, 1999, revealed no
ruptured or damaged disks, but showed signs only of normal aging. On January 26,
2000, Dr. Bernauer saw Mr. Murchison once more for a check-up, and found his
physical exam to be normal.
Mr. Murchison then began work at Car Care Automotive in March of
2000. He did not return to Dr. Bernauer until February 27, 2002, when he sought
treatment for serious neck pain. On March 11, 2002, Dr. Bernauer ordered new
MRI’s, which revealed mild degenerative changes and, in addition, a herniated disk
at C3-4. Dr. Bernauer operated on Mr. Murchison on August 6, 2002, and again on
April 8, 2003 to treat the herniated disk and its related complications.
Although Mr. Murchison provided extensive descriptions of his painful
conditions, including high blood pressure and depression, and also his loss of
earnings, the central issue is whether or not his injury on September 10, 1998 caused
the herniated disk at C3-4. Dr. Bernauer testified that the herniated disk itself
required surgery, and then caused certain complications requiring further surgery;
however, he admitted in his testimony that he could not medically conclude that the
original accident caused the herniation at C3-4. In fact, Dr. Bernauer described the
herniated disk at C3-4 to the patient, Mr. Murchison, as a “new finding.”
6 Dr. James Perry examined Mr. Murchison only once, on behalf of the
defendants. Dr. Perry noted that the initial MRI taken in October of 1999, a month
after the accident, showed no damage. He concluded that the change causing the
herniated disk occurred after the October 1999 MRI, and that therefore the accident
on September 10, 1998, could not have caused the herniation. The jury awarded
damages and medical expenses only with respect to Mr. Murchison’s medical therapy
through January 26, 2000, which represents his last visit with Dr Bernauer in
reference to his normal October 1999 MRI. The award did not account for medical
expenses incurred thereafter, suggesting that the jury agreed that the range of
damages related to the accident ended in January of 2000. The trial court, however,
disagreed with this assessment, stating in its oral reasons for judgment only that “the
jurors could not have reached the conclusion they reached.” The trial court believed
that Mr. Murchison incurred the medical bills “in good faith,” and increased the jury’s
award of medical expenses to include the herniated disk at C3-4 and its related
treatment. The JNOV also increased the award for loss of enjoyment of life, future
medical expenses, and pain and suffering.
The standard for reviewing a trial court’s decision to grant JNOV on the
issue of damages is whether
“reasonable men in the exercise of impartial judgment could differ as to the fact that the jury award was either abusively high or abusively low. If the answer is in the affirmative, then the trial court erred in granting the JNOV, and the jury’s damage award should be reinstated. [I]f the answer is in the negative, then the trial court properly granted the JNOV.”
Manville v. Citizen, 96-861, p. 6 (La.App. 3 Cir. 2/5/97), 689 So.2d 578, 584. In
Morgan v. Belanger, 633 So.2d 173 (La.App. 1 Cir. 1993), the appellate court
declined to find the trial court erred in refusing to grant a JNOV. Although the trial
7 court stated it disagreed with the jury’s assessment of damages, and believed the jury
disregarded the evidence, the court nevertheless conceded that the figures were within
a reasonable range. The trial court “can make no credibility determinations, nor draw
inferences therefrom.” Id. at 175. The first circuit concluded that “[a] JNOV can be
granted only where the trial court finds that reasonable minds could not reach a
contrary verdict.” Id.
In Simoneaux v. Amoco Production Co., 02-1050 (La.App. 1 Cir. 2003),
860 So.2d 560, writ denied, 04-1 (La. 3/26/04), 871 So.2d 348, the defendants argued
that, in granting a JNOV, the trial court “ignored the jury’s acceptance of the defense
witnesses’ testimony, improperly substituted [its] own judgment for that of the jury,
[made its] own credibility determinations” and increased the damages award from
$375,000.00 to $12,000,000.00. The appellate court agreed, citing the rule that, in
order to supersede properly the jury’s determination of damages, the trial court must
find that a reasonable jury could not have made the award. In Simoneaux, the jury
heard substantial evidence on hazardous contamination of various sites, and the
necessary costs of cleanup. The jury weighed the evidence and found the defense
case credible. Because a reasonable jury could have made the damages assessment
the Simoneaux jury made, “the judge was not empowered to substitute his own
evaluation of the evidence to overturn the damages award.” Id.
Appellate courts have considered the presence of conflicting expert
testimony as a factor in assessing a trial court’s decision to grant a JNOV. For
instance, in VaSalle v. Wal-Mart Stores, Inc., 01-462 (La. 11/28/01), 801 So.2d 331,
several physicians offered conflicting testimony about the severity of the plaintiff’s
injuries and the causal relationship of her later physical condition to the injury that
was the subject of the lawsuit. The jury assigned some damages, but their limited
8 award indicated they chose an award that would reflect only the damages clearly
caused by the relevant injury. The supreme court held that the decision was one a
reasonable and fair-minded jury could reach, noting that the plaintiff did not seek
immediate treatment for her injuries, had suffered other injuries which could have
caused her condition, and continued to work following her accident. Because ample
evidence presented at trial supported the jury’s verdict, the supreme court could not
conclude the verdict was unreasonable, and held that the trial court erred in granting
a JNOV. Id.
Similarly, in Kennedy v. Thomas, 34,530 (La.App. 2 Cir. 4/4/01), 784
So.2d 692, two physicians gave contradictory testimony about the necessity and cost
of future surgeries, and also had different opinions about the permanence of
impairment caused by the injuries. The jury rendered a more conservative award than
desired, and the plaintiffs moved for JNOV. The appellate court found that the facts
and evidence presented by the defendant were “of such quality and weight that
reasonable men in the exercise of impartial judgment could reach different
conclusions.” Id. at 698-99. Thus, the jury must weigh the evidence, including
testimony of expert witnesses, to assess the extent of damages caused by the injury
which the plaintiff may recover.
In general, the testimony of the primary treating physician enjoys greater
weight than an independent examiner who has seen the patient only for limited
purposes of assessing their condition. McKinney v. Coleman, 36,958 (La.App. 2 Cir.
3/14/03), 839 So.2d 1240. The opinion of the treating physician, however, is not
irrebuttable. The medical evidence must be weighed to determine “whether, based
on the totality of the record, the jury was manifestly erroneous in accepting the expert
testimony presented by defendants over that presented by plaintiff.” Miller v. Clout,
9 03-91 (La. 10/21/03), 857 So.2d 458 (citing Freeman v. Rew, 557 So.2d 748 (La.App.
2 Cir. 1990)). Thus, the trier of fact is entitled to place more weight on the testimony
of a physician other than the treating physician if that physician’s evidence is
corroborated. In this case, the plaintiff and his treating physician presented the jury
with evidence of his painful physical condition, the effects of the herniated disk, and
the complications caused by the herniated disk. His treating physician could not,
however, state with any degree of medical confidence that Mr. Murchison’s initial
injuries from the September 1998 car accident caused the herniated disk. In fact, Dr.
Bernauer himself admitted that this was a new finding. In contrast, defendants’
expert witness testified that the herniated disk could not have been caused by the
initial injury. Dr. Perry reasoned that it was not possible that the car accident caused
injuries which did not appear on Mr. Murchison’s MRI in October 1999,
approximately a year after the accident, but which did appear on his March 2002
MRI. He concluded that, given this extended time frame, the change that caused the
herniated disk would have had to occur sometime after the October 1999 MRI. Other
evidence in the record further corroborate conclusions. For instance, Mr. Murchison
was able to maintain employment, and did not seek medical attention between
January 26, 2000 and February 27, 2002. Additionally, Mr. Murchison suffered other
injuries between the time of his car accident and the time he was diagnosed with a
herniated disk. For example, Mr. Murchison returned to his chiropractor in August
of 1999 after hurting his back doing maintenance work on his mother’s home.
Given this imbalanced testimony, the jury was reasonable in concluding
that the timeline of Mr. Murchison’s injuries prevented a finding that the September
1998 accident caused his herniated disk. The jury made a decision about the relative
strength of the evidence. Because the evidence supported this decision, it was
10 improper for the trial court to grant the JNOV and, in doing so, substitute its own
assessment of the evidence for that of the jury. We, therefore, reinstate the jury’s
award of damages subject to the new allocation of fault.
Stipulated Damages
Defendants request that the JNOV reflect a credit for the $4,037.29 paid
to Ellen Murchison, the cash value of her car. The record indicates that the parties
stipulated the amount paid toward the value of the vehicle; however, the judgment
does not recognize the credit in the award for damages. We, therefore, amend the
judgment to reflect the stipulation and credit the defendants in the amount of
$4,037.29.
New Trial
Louisiana Code of Civil Procedure Article 1811(c)(2) states that “if the
motion for a new trial has been conditionally granted and the judgment is reversed on
appeal, the new trial shall proceed unless the appellate court orders otherwise.” The
applicable standard of review in such a matter is whether the trial court abused its
discretion. Anthony v. Davis Lumber, 629 So.2d 329 (La.1993). We find that the
jury’s verdict on damages was supported by a fair interpretation of the evidence,
including Dr. Bernauer’s inability to provide a confident medical opinion that the
accident caused the injury, in contrast with Dr. Perry’s testimony that it was
implausible that Mr. Murchison’s injury resulted from the September 8, 1998,
accident in light of the time frame in which the ruptures occurred in relation to the
accident. Where the evidence supports the jury’s verdict, the grant of a new trial must
be reversed. Davis v. Witt, 02-3102, p. 23 (La. 07/02/03), 851 So.2d 1119, 1134.
11 IV.
CONCLUSION
For the foregoing reasons, the JNOV granted for the reallocation of fault
is affirmed. The JNOV granted for the reallocation of damages and the conditional
new trial is reversed. We amend the judgment to reflect the stipulated credit in the
amount of $4,037.29 to be applied to Ellen Murchison’s property damage award.
Costs of this appeal are assessed equally to defendants, Officer Timothy Richards and
the City of Lake Charles, and plaintiffs, Daniel Murchison and Ellen Murchison.
AFFIRMED IN PART; REVERSED IN PART; AMENDED IN
PART; AND RENDERED.