Denley v. Berlin

114 So. 3d 631, 13 La.App. 3 Cir. 149, 2013 WL 2420782, 2013 La. App. LEXIS 1130
CourtLouisiana Court of Appeal
DecidedJune 5, 2013
DocketNo. 13-149
StatusPublished

This text of 114 So. 3d 631 (Denley v. Berlin) 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
Denley v. Berlin, 114 So. 3d 631, 13 La.App. 3 Cir. 149, 2013 WL 2420782, 2013 La. App. LEXIS 1130 (La. Ct. App. 2013).

Opinion

KEATY, Judge.

| iDianne Denley (Denley), who filed suit on behalf of her minor child, Andrea Stewart (Stewart) (sometimes collectively referred to as Plaintiff), appeals a judgment rendered by the trial court in favor of State Farm Mutual Automobile Insurance Company (State Farm), finding that Stewart was not injured in an automobile accident. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This lawsuit was filed by Denley in Cad-do Parish1 on behalf of her minor child, Stewart, for injuries allegedly suffered in a motor vehicle accident which occurred in Shreveport on December 7, 2008. Stewart, who was fifteen years old at the time of the accident, was a passenger in a vehicle driven by one of her high school friends, Virginia Pullen (Pullen). Their vehicle was struck from behind by a vehicle, which was insured by Shelter Mutual Insurance Company (Shelter) and driven by Sherri Berlin (Berlin). Plaintiff filed suit against Berlin and Shelter as well as Pullen and her insurance company, Safeway Insurance Company of Louisiana (Safeway). Pullen and Safeway were ultimately dismissed via motion for summary judgment based on lack of liability. Subsequently, Shelter paid its $25,000 policy limits in exchange for the release of Shelter and its insured. At the time, Plaintiff had a liability insurance policy through State Farm, which also paid her $10,000 in medical payments. Plaintiff, therefore, has received $35,000 in total payments. The only remaining Defendant at the time of trial was State Farm in its capacity as the uninsured motorist carrier for Plaintiff. State Farm’s policy provided uninsured [633]*633motorist coverage in the amount of $100,000. The payment of ^Shelter’s $25,000 policy limits, State Farm’s $10,000 medical payments coverage, and liability were stipulated to by the parties at trial.

The case went to trial on April 4, 2012. Finding that the testimonies of Stewart and Denley were not credible and that their testimonies were inconsistent and/or contradicted by other evidence, the trial court found in favor of State Farm, dismissing Plaintiffs claims at her cost.

Plaintiff is now before this court asserting that it was error to find that there was no evidence that Stewart was injured in the automobile accident of December 7, 2008, and that the witness fee award was excessive.

DISCUSSION

I. Causation

After trial on the merits, the trial court ruled that it “was unable to say more likely than not” that Stewart had any injuries in the accident. This conclusion was based upon a finding that Stewart and Denley were “somewhat deceptive” and lacked credibility. Plaintiff contends that the trial court’s finding that Stewart incurred no injuries in the automobile accident is not supported by the record and is manifestly erroneous. Plaintiff contends that the trial court’s credibility determinations, particularly with regard to the testimonies of Dr. Milan Mody (Dr. Mody), Pullen, and Stewart, as well as the trial court’s disregard of the medical records and billing statements, are so unreasonable in light of the entire record that they warrant reversal.

In opposition, State Farm contends that Plaintiff did not provide sufficient objective proof that Stewart suffered injury or that medical expenses incurred were necessary and/or related to this minor accident. State Farm contends that Plaintiff failed to prove that her case was worth in excess of $35,000 and that the judgment |sof the trial court should be affirmed. State Farm alleges that both the objective evidence and the testimonies by witnesses presented at trial are inconsistent with Plaintiffs claims of injury after a minor rear-end accident. State Farm also claims that Stewart was not truthful about any injuries she may have suffered and that the trial court found her and Denley to lack credibility.

In Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (citations omitted), the supreme court discussed the pertinent standard of review with respect to the instant case:

It is well settled that a court of appeal may not set aside a, trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are reasonable. The appellate review of fact is not - completed by reading only so much of the record as will reveal a reasonable factual basis for the findings in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong.
When findings are based on determinations regarding the credibility of witnesses, - the manifest error — clearly wrong standard demands great defer[634]*634ence to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bears so heavily on the listener’s understanding and belief in what is said.

Additionally, the supreme court in Maranto v. Goodyear Tire & Rubber Co., 94-2603, 94-2615, p. 3 (La.2/20/95), 650 So.2d 757, 759, noted:

In a personal injury suit, plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident which caused the injury. American Motorist Insurance Co. v. American Rent-All, Inc., 579 So.2d 429 (La.1991); Aucoin v. State Farm Mut. Auto. Ins. Co., 505 So.2d 993 (La.App. 3d Cir.1987); Richard v. Walgreen’s Louisiana Co., 476 So.2d 1150 (La.App. 3d Cir.1985). Plaintiff must prove causation by a preponderance of the evidence. Morris v. Orleans Parish School Bd., 553 So.2d 427 (La.1989). The test for determining the causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident. Mart v. Hill, 505 So.2d 1120 (La.1987); Villavaso v. State Farm Mut. Auto. Ins. Co., 424 So.2d 536 (La.App. 4th Cir.1982).

In the present case, Plaintiff had the burden of proving both that Stewart was injured in this accident and that the medical expenses for which Plaintiff was seeking recovery were related to the motor vehicle accident. Based upon our review of the trial transcript, the evidence presented at trial fell short of reaching this burden. Plaintiff called only one treating physician to testify regarding the alleged injuries suffered as a result of this accident. This witness, Dr. Mody, only saw Stewart a few times after the accident. Most of the treatment that Plaintiff claimed was incurred as a result of this accident was provided for by other providers, including Dr. Lynne Holladay, The Orthopedic Clinic, Cornerstone Rehabilitation, and Dr. Richard Barton. None of these providers were called as witnesses to testify as to the treatment or diagnoses they may have rendered as a result of Stewart’s alleged injuries. Additionally, none of these medical records, including those of Dr.

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Related

Morris v. Orleans Parish School Bd.
553 So. 2d 427 (Supreme Court of Louisiana, 1989)
Richard v. Walgreen's Louisiana Co.
476 So. 2d 1150 (Louisiana Court of Appeal, 1985)
Maranto v. Goodyear Tire & Rubber Co.
650 So. 2d 757 (Supreme Court of Louisiana, 1995)
Villavaso v. State Farm Mut. Auto. Ins. Co.
424 So. 2d 536 (Louisiana Court of Appeal, 1982)
Rosell v. Esco
549 So. 2d 840 (Supreme Court of Louisiana, 1989)
American Motorist v. American Rent-All
579 So. 2d 429 (Supreme Court of Louisiana, 1991)
Aucoin v. State Farm Mut. Auto. Ins. Co.
505 So. 2d 993 (Louisiana Court of Appeal, 1987)
Mart v. Hill
505 So. 2d 1120 (Supreme Court of Louisiana, 1987)
Broussard v. Martin Operating Partnership
103 So. 3d 713 (Louisiana Court of Appeal, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
114 So. 3d 631, 13 La.App. 3 Cir. 149, 2013 WL 2420782, 2013 La. App. LEXIS 1130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/denley-v-berlin-lactapp-2013.