Defils v. Protective Casualty Insurance Co.

539 So. 2d 724, 1989 La. App. LEXIS 147, 1989 WL 10661
CourtLouisiana Court of Appeal
DecidedFebruary 8, 1989
DocketNo. 87-1159
StatusPublished

This text of 539 So. 2d 724 (Defils v. Protective Casualty Insurance Co.) 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
Defils v. Protective Casualty Insurance Co., 539 So. 2d 724, 1989 La. App. LEXIS 147, 1989 WL 10661 (La. Ct. App. 1989).

Opinion

DOMENGEAUX, Judge.

This suit arose from an auto accident between two automobiles, one driven by the plaintiff, Clarisse Defils, and the other, a taxicab, driven by defendant, Robert J. Martin, owned by defendant Jules Reed, and insured by defendant, Protective Casualty Insurance Company. The plaintiff sued individually for the injuries she sustained and, in her capacity as tutrix of her minor child, Brandy Nicole Lavergne, sued for the child’s loss of consortium. After ruling in favor of the plaintiff and awarding $7,563.43 in total damages, including $5,000.00 in general damages, the Trial Court found the plaintiff to be 10% contrib-utorily negligent and reduced the total award by this amount. The Court also awarded $100.00 for the child’s loss of consortium.

The plaintiff has appealed as manifest error both the $5,000.00 award in general damages and the $100.00 award for the child’s loss of consortium. She has also appealed the Trial Court’s determination that she was 10% contributorily negligent in causing the accident.

FACTS

On December 11, 1984, around 7:30 a.m. in the City of Opelousas, the plaintiff was driving east along Bellevue Street en route to work. A heavy morning fog had fallen. As she approached the intersection of [725]*725Bellevue and Virginia Streets, she testified that her lights were on and she was travel-ling at a speed of approximately 20 mph.

A taxicab driven by defendant James Martin, driving north along Virginia Street, stopped at the intersection of Virginia and Bellevue Streets. The cab intended to turn left onto Bellevue Street but, due to the angle of the intersection, the cars parked along Bellevue Street partially obstructed its view. Apparently seeing no approaching vehicles, the cab proceeded to turn left onto Bellevue Street but was hit in the left front panel by the plaintiff’s vehicle. The cab driver testified that the plaintiff did not have her lights on and that he believed that she was traveling faster than the 20 mph speed limit.

Upon impact, the plaintiff’s head struck the windshield and her chest hit the steering wheel. She was not wearing a seat-belt. After being taken to Opelousas General Hospital, she was examined by Dr. Calvin White and initially diagnosed as having a cervical myofascial strain, a closed head injury, bilateral shoulder contusions and multiple abrasions and/or contusions on the knees. In layman’s terms, Dr. White described the plaintiff’s injury as a mild to moderate whiplash. By the next day, the plaintiff’s cervical neck and chest muscles displayed an even more pronounced spasm. Dr. White prescribed heat therapy. By the third day, December 14, 1984, the plaintiff began to experience severe headaches and lower chest pain. Because the plaintiff soon thereafter began seeing her family physician, Dr. Milton Joli-vette, she asked to be discharged from Dr. White’s care in January, 1985.

At the trial, Dr. White stated that he had previously treated the plaintiff for injuries she sustained in another auto accident occurring in July, 1984. In that accident, the plaintiff sustained injuries that were very similar to the injuries she sustained in the December, 1984 accident. Dr. White testified that he felt that the plaintiff had completely recovered from the injuries of this earlier accident by October, 1984.

The plaintiff saw her family physician, Dr. Milton Jolivette, a week after the accident, on December 17, 1984. Dr. Joli-vette’s initial diagnosis of the plaintiff’s condition was similar to Dr. White’s diagnosis; primarily cervical muscle strain. The plaintiff continued to see Dr. Jolivette regarding this strain once a month until August, 1985. Throughout these eight months, the plaintiff continued to exhibit objective findings of muscle strain and tension in the cervical muscle group.

The plaintiff discontinued seeing Dr. Joli-vette for one year, from September, 1985, until September, 1986. When the plaintiff was examined in September, 1986, she was still complaining of headaches and muscle strain. At this point Dr. Jolivette suspected that the plaintiff’s chronic condition was due to cervical facet joint syndrome. Dr. Jolivette described this condition as “episodic”, such that a facet joint slips in and out of alignment. He further explained that the condition was detectable only when the facet joint was misaligned. Upon examination of the plaintiff in February, 1987, Dr. Jolivette felt a slight dislocation in the third cervical facet joint, confirming his earlier diagnosis. Dr. Jolivette stated that the syndrome could be caused by either trauma or by an extended period of strain on the cervical muscle region and that the plaintiff’s condition resulted from the latter.

Facet joint syndrome was described as a degenerating condition caused by spasms resulting in pain which continues the spasms. Eventually the protein in the muscle tissue becomes depleted and the entire region begins to deteoriate. Dr. Joli-vette stated that it was more probable than not that the plaintiff’s chronic muscle tension from the auto accident of December, 1984, caused the plaintiff’s cervical facet joint syndrome and her chronic migraine headaches.

Additionally, in her capacity as tutrix for her daughter, Brandy Nicole Lavergne, the plaintiff sued the defendants for the loss of consortium her seven year old daughter suffered due to the plaintiff’s inability to care for her for an eight month period after the accident. The plaintiff’s sister, Briget Andrea Defils, testified that she [726]*726cared for Brandy one to three times a week after school for eight months because the plaintiff’s severe headaches prevented her from caring for the child. The plaintiff testified that her daughter became “obnoxious” because she was denied her mother’s love, affection and attention. After the plaintiff’s sister moved to Baton Rouge to attend college, the plaintiff’s mother helped babysit the child. However, the plaintiff testified that her relatives helped babysit and care for the child before the accident, but not necessarily to the extent that they did after the accident.

The Trial Court ruled in favor of the plaintiff and awarded her general damages of $5,000.00; reimbursement for car rental expenses of $1,370.43; medical expenses for Drs. White and Jolivette of $390.00; medical expenses for the plaintiff’s physical therapist of $591.00 and lost wages of $212.00, for a total judgment of $7,563.43. Also, the Trial Court awarded $100.00 for the daughter’s loss of consortium.

The plaintiff has appealed the quantum of both her and her daughter’s damage award. She has also appealed the Trial Court’s determination that she was 10% contributorily negligent.

QUANTUM

The plaintiff contends that the Trial Court’s award of $5,000.00 in general damages for the plaintiff’s injuries is so low as to constitute an abuse of discretion. In support of her claim the plaintiff has cited numerous cases in which plaintiffs with similar neck and shoulder injuries were awarded far greater general damage awards.

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Cite This Page — Counsel Stack

Bluebook (online)
539 So. 2d 724, 1989 La. App. LEXIS 147, 1989 WL 10661, Counsel Stack Legal Research, https://law.counselstack.com/opinion/defils-v-protective-casualty-insurance-co-lactapp-1989.