Daspit v. Barber

786 So. 2d 962, 2001 WL 540602
CourtLouisiana Court of Appeal
DecidedApril 11, 2001
Docket2000-CA-1221, 2000-CA-1222
StatusPublished
Cited by5 cases

This text of 786 So. 2d 962 (Daspit v. Barber) 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
Daspit v. Barber, 786 So. 2d 962, 2001 WL 540602 (La. Ct. App. 2001).

Opinion

786 So.2d 962 (2001)

Byron T. DASPIT
v.
Philip M. BARBER and USAA Casualty Insurance Company a/k/a USAA Property and Casualty Insurance Company.
Frank T. Scaturro and Byron T. Daspit
v.
Hamdi Zayed, Progressive Security Insurance Company and State Farm Insurance Company.

Nos. 2000-CA-1221, 2000-CA-1222.

Court of Appeal of Louisiana, Fourth Circuit.

April 11, 2001.
Writ Denied June 15, 2001.

*965 Raymond A. Milly, Metairie, LA, for plaintiff/appellant, Byron T. Daspit.

C. Gordon Johnson, Jr., James R. Nieset, Jr., Porteous, Hainkel, Johnson & Sarpy, New Orleans, LA, for defendants/appellees, USAA Casualty Ins. Co. and Philip Barber.

Renee' Clark McGinty, Renee' Clark McGinty & Associates, New Orleans, LA, for defendants/appellees, Hamdi Zayed and Progressive Security Ins. Co.

David P. Salley, Edward J. Rivera, Sessions & Fishman, L.L.P., New Orleans, LA, for defendants/appellees, State Farm Mutual Automobile Ins. Co.

Court composed of Judge JOAN BERNARD ARMSTRONG, Judge STEVEN R. PLOTKIN, and Judge DAVID S. GORBATY.

PLOTKIN, J.

Plaintiff Byron Daspit requests this court to enter a damage award, which the trial court denied after holding that both defendant drivers were 100 percent at fault in their accidents with Mr. Daspit.

Facts

Mr. Daspit worked at Southern Eagle Sales & Services, Inc. for twelve years as a diesel truck mechanical. He was involved in a work accident while changing tires in early 1996, in which he hurt his back. On July 9, 1996, he was involved in a car accident with defendant Philip Barber. Following the accident, Mr. Daspit was treated by his family physician, Dr. David Learned. However, Mr. Daspit continued to work for almost three months after the accident, until October 1, 1996, when his back "went totally out" after he had been bending over a car for several hours fixing its air-conditioning system.

After his back "went totally out," Mr. Daspit was sent to the company doctor, Dr. Joseph Tamimie, who deferred treatment to Dr. Learned. Dr. Learned referred Mr. Daspit to Dr. Robert Mimeles, an orthopedic physician. Dr. Mimeles referred him to Dr. Lucian Miranne, a neurosurgeon. Dr. Miranne performed a myelogram and then referred him to Dr. Daniel Trahant, a neurologist. Dr. Trahant performed an EMG and reported his findings to Dr. Miranne. Mr. Daspit wanted a second opinion, which he received from Dr. Melvin Parnell. Dr. Parnell began a conservative regime, and eventually performed a percuntaeous suction diskectomy on April 16, 1997.

As a result of his back injury, Mr. Daspit was unable to return to work for almost nine months. He had not yet returned to work when he was involved in a second car accident with Mr. Hamdi Zayed on August 19, 1997. The accident occurred at the intersection of Bonnabel Boulevard and the I-10 Service Road, each party claimed he had the right of way by virtue of a green light. Mr. Daspit was taken by ambulance to East Jefferson Hospital, where he was treated and released. Drs. David Aiken and Melvin Parnell provided additional medical treatment.

Mr. Daspit originally filed separate suits against Mr. Zayed and Mr. Barber and their respective insurers. On Mr. Daspit's notice, the cases were consolidated for trial. *966 The matters were trial before a jury, which found that both Mr. Barber and Mr. Zayed were 100% negligent in causing the accidents. However, the jury also found that Mr. Daspit was not injured as a result of either accident. Mr. Daspit appeals, asserting four assignments of error.

Loss of wages and future earning capacity

Mr. Daspit alleges that the trial court abused its discretion by granting a partial directed verdict in favor of the defendants on the issues of lost wages and loss of future earning capacity.

A motion for directed verdict may be granted when, after considering all of the evidence and making all reasonable inferences therefrom in the light most favorable to the mover's opponent, it is clear that the facts and inferences are so in favor of the movant that a reasonable person could not arrive at a contrary verdict. Burris v. Walmart Stores, Inc., 94-0921 (La.App. 1 Cir. 3/3/95), 652 So.2d 558, 561. Thus, if there is substantial evidence such that reasonable jurors exercising impartial judgment could reach a different decision, a motion for directed verdict should be denied. Cross v. Cutter Biological, Division of Miles, Inc., 94-1477 (La .App. 4 Cir. 5/29/96), 676 So.2d 131, 148. Furthermore, the trial court is given much discretion in the decision to grant a directed verdict. Lott v. Lebon, 96-1328 (La.App. 4 Cir. 1/15/97), 687 So.2d 612, 615. Thus, the standard of review on appeal is whether, viewing the evidence contained in the record, the court determines that reasonable people could not reach a different verdict. Id. The propriety of granting a directed verdict must be reviewed in light of the substantive law underpinning the motion. Cross, 676 So.2d at 148.

After a thoroughly reviewing the record in the light most favorable to Mr. Daspit and drawing all reasonable inferences favorable to him, we affirm the trial court's decision to grant the defendants' motion for a directed verdict. We find that Mr. Daspit failed to introduce any evidence to prove that he suffered a loss of income, either past or future, as a result of the accident with either of the defendants, such that reasonable men could not find in favor of the defendants.

Concerning the accident with Mr. Barber, the record evidence shows that Mr. Daspit continued to work and did not consult a physician concerning his back injury until almost three months after the accident, after his back "went totally out" as a result of his work activities. Concerning the accident with Mr. Zayed, Mr. Daspit had not been working for approximately nine months prior to that accident. In fact, in his deposition on June 26, 1997, only two months prior to the accident with Mr. Zayed, Mr. Daspit admitted that he was not capable of returning to work. Dr. Parnell also testified that as of approximately two months prior to the second accident, Mr. Daspit was not capable of returning to work as a diesel mechanic. He had informed Mr. Daspit that "any activity requiring prolonged bending, stooping or lifting would not be in his best interest," and that "instead of relying on his back it was better to start using his brain more." Thus, although Dr. Parnell also testified that after the accident with Mr. Zayed, Mr. Daspit was unable to work as a mechanic, he held that opinion prior to that accident as well.

Furthermore, Dr. David Aiken examined Mr. Daspit on February 25, 1999, and found no objective signs of injury to the back or neck. He testified that from a physical standpoint there seemed to be no reason why Mr. Daspit could not work at that time as a diesel mechanic. Thus, because there is no evidence in the record *967 from which a reasonable person could find that Mr. Daspit was unable to return to work as a result of the two accidents, we affirm the trial court's grant of the motion for directed verdict on the issues of lost wages and loss of earning capacity.

Physical injuries

Mr. Daspit alleges that the jury abused its discretion when it determined that he had suffered no injury and was therefore not entitled to any damages.

Appellate courts may not set aside a trial court's or jury's finding of fact unless such that finding is manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

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Cite This Page — Counsel Stack

Bluebook (online)
786 So. 2d 962, 2001 WL 540602, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daspit-v-barber-lactapp-2001.