Fair v. Empire Fire & Marine Insurance Co.

579 So. 2d 1105, 1991 La. App. LEXIS 1095, 1991 WL 74784
CourtLouisiana Court of Appeal
DecidedMay 8, 1991
DocketNo. 22334-CA
StatusPublished
Cited by2 cases

This text of 579 So. 2d 1105 (Fair v. Empire Fire & Marine 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
Fair v. Empire Fire & Marine Insurance Co., 579 So. 2d 1105, 1991 La. App. LEXIS 1095, 1991 WL 74784 (La. Ct. App. 1991).

Opinion

SEXTON, Judge.

Plaintiff appeals a jury verdict which found that the defendant tortfeasor was at fault in a rear-end automobile accident but which also found that plaintiff sustained no damages in the accident. Plaintiff also complains that the district court assessed him with all costs of the proceeding below. We affirm.

On January 11, 1987, plaintiff and his girlfriend (now his wife) were stopped at the intersection of Louisiana Highway 789 and Louisiana Highway 5 in Keatchie, De-Soto Parish, when his vehicle was hit from the rear by a vehicle driven by defendant James E. Smith, Jr. At trial, plaintiff and his wife both described the impact as substantial; plaintiffs friend, who was parked near the intersection, testified that it sounded like a hand grenade exploding approximately 100 yards away.

Smith and his wife described the impact as a “tap” or “bump.” Mrs. Smith testified that her purse, which was resting on her lap at the time of the accident, was not knocked down as a result of the impact. The state trooper who investigated the accident testified that Smith’s vehicle left ap[1106]*1106proximately 12 feet of light skid marks prior to making contact with plaintiffs vehicle. Plaintiffs vehicle then rolled approximately 20 feet before coming to a halt.1 Damage to both vehicles was described as extremely light, mostly abrasion marks on the guard strips of the bumpers.

Immediately after the accident, Smith, an orthopedic surgeon, conducted an on-site examination of the plaintiff because of the plaintiffs complaints of significant pain and discomfort and because plaintiff was holding his neck. Smith testified that he found muscle spasm consistent with soft tissue injury and provided plaintiff with a dose of Naprosyn, an anti-inflammatory drug.

Plaintiff had significant back problems prior to this accident. In 1969, plaintiff was involved in an automobile accident where he ran into a cow. He also testified that he had fallen or been thrown from horses several times and had been hit over the back by a bar stool “a time or two.” In 1974 or 1975, plaintiff was involved in an automobile accident while he was riding a motorcycle.

In 1977, plaintiff was driving a tractor-trailer rig, commonly known as an 18-wheeler, when his vehicle was rear-ended by another tractor-trailer rig with sufficient impact that the driver seat in the vehicle’s cab, which was connected to the cab by four or five bolts, broke loose from its mounts. As a result of this accident, plaintiff filed a worker’s compensation lawsuit, at the conclusion of which he was adjudicated permanently partially disabled.2 He was awarded 450 weeks of compensation benefits, which he was still receiving at the time of the instant accident.3

In 1978, he was involved in yet another vehicular accident involving two tractor-trailer rigs. Finally, in 1984, plaintiff was involved in another automobile/motorcycle accident when the driver of the automobile failed to yield at an intersection. Plaintiff’s injuries in that accident resulted, in part, in his being put in traction.

Plaintiff’s chiropractor, Dr. Don Guice, testified that he had treated plaintiff off and on since 1973. He agreed, on cross-examination, that plaintiff had, in layman’s terms, a “bad back.” He had treated plaintiff as recently as three months prior to the accident for some of the same or similar symptoms which plaintiff noted both immediately after the accident and later to his treating physicians during his treatment for injuries he alleged he sustained in the accident.

Plaintiff’s treatment after the accident consisted mainly of conservative treatment. One unusual aspect of this treatment is that he was simultaneously seeking treatment, on the one hand, from his chiropractor and, on the other hand, from orthopedic and other medical specialists without advising any doctor that he was simultaneously receiving other treatment. Also interesting is that plaintiff’s chiropractor, whom plaintiff had failed to advise of the 1987 automobile accident, was still billing the worker’s compensation carrier who had covered plaintiff’s 1977 tractor-trailer accident. The doctors, on the other hand, were unaware of the chiropractor’s treatment and largely unaware of the extent of plaintiff’s prior orthopedic problems and looked to the plaintiff and his insurer for payment.

Eventually, however, in an effort to resolve plaintiff’s continuing complaints, Dr. Jorge Martinez, who was aware of plaintiff’s accidents in 1977, 1984, and 1987, after running numerous tests and associating another doctor for a separate evaluation, performed a lumbar decompressive [1107]*1107laminectomy involving three levels of plaintiffs vertebrae. He later removed a cervical disc and bony spurs, followed by the placement of a bone graft to achieve a fusion between the two levels from which the disc was removed. Following an extended period of recovery, Dr. Martinez assigned plaintiff a 21 percent disability rating with six percent of that disability related to the surgery on the plaintiffs neck and the remainder related to the condition of plaintiffs lower back.4 Notwithstanding this rating, Dr. Martinez was of the opinion that plaintiff could do anything after the surgery that he could have previously done.

In response to questioning by plaintiffs own counsel, Dr. Martinez testified that he was unable to make a causal connection between plaintiffs back condition and the accident at issue:

A Well, he did have three accidents in the past. So there’s no way that I can tell which accident or how long the finding and what I found during this surgery had been there.
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Q Assuming he had been functional after the first two accidents, had a steady job working for the Sheriffs Department, and then suffered this accident of January 11th, 1987, at which time he became disabled; could you say that there was an aggravation of the preexisting condition for which you operated on him for?
A Yes. I would say it’s possible it could be aggravated by an accident. But it’s possible that the condition has been there even before that.

In addition to the three accidents of which Dr. Martinez was aware, plaintiff had not told him of the accidents in 1969 (automobile/cow), 1974 or 1975 (automobile/motorcycle), 1978 (the second 18-wheeler incident), nor did he advise Dr. Martinez of accidents involving being thrown from horses or having been hit with bar stools.

With regard to plaintiff’s own testimony, the record reflects that plaintiff was evasive and/or ambiguous in response to certain questions involving the identification of his own automobile, his previous accidents, the results of his 1977 18-wheel-er accident, and his willingness or ability to testify in a straightforward manner.

Additionally, plaintiff was somewhat evasive when questioned about the worker’s compensation lawsuit which arose out of the 1977 18-wheeler accident and appears to have gotten a little testy when pressed for responses. Finally, he could not recall whether he told the chiropractor about the instant accident, although the chiropractor testified that the plaintiff had not told him of the accident.

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Bluebook (online)
579 So. 2d 1105, 1991 La. App. LEXIS 1095, 1991 WL 74784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fair-v-empire-fire-marine-insurance-co-lactapp-1991.