Harrington v. Wilson

8 So. 3d 30, 8 La.App. 5 Cir. 544, 2009 La. App. LEXIS 47, 2009 WL 91708
CourtLouisiana Court of Appeal
DecidedJanuary 13, 2009
Docket08-CA-544, 08-CA-545
StatusPublished
Cited by12 cases

This text of 8 So. 3d 30 (Harrington v. Wilson) 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
Harrington v. Wilson, 8 So. 3d 30, 8 La.App. 5 Cir. 544, 2009 La. App. LEXIS 47, 2009 WL 91708 (La. Ct. App. 2009).

Opinion

SUSAN M. CHEHARDY, Judge.

|2On appeal, the injured driver’s under-insured motorist insurer seeks review of the judgment in favor of the plaintiffs. For the following reasons, we vacate the judgment in part; amend the judgment, and affirm as amended.

Althea Harrington was involved in two automobile accidents in 2002; one accident on February 14, 2002, and another on March 14, 2002. On February 13, 2003, Mrs. Harrington and her husband, Earl, (hereinafter “the plaintiffs”) filed suit for the February accident against the driver, Dorothy Wilson, and her liability insurer, Allstate Insurance Company.

On March 10, 2003, a second and separate petition for damages was filed by the plaintiffs for the March accident against the driver, Myron Henry and his liability insurer, State Farm Mutual Automobile Insurance Company. On September 29, 2003, the plaintiffs added defendant, Prudential Insurance Company, their underinsured motorist insurance carrier, (hereinafter “Prudential”) for each of the respective accidents.

On October 14, 2003, the defendants, Myron Henry and State Farm, compromised their portion of the claim and were dismissed from the suit, with a preservation of plaintiffs’ rights against Prudential. On April 12, 2007, plaintiffs compromised their claim against Dorothy Wilson and Allstate Insurance Company and again reserved their rights against their underinsured motorist carrier, Prudential. 1

On September 12, 2007, trial commenced. At trial, the parties stipulated that Althea and Earl Harrington, in each of the consolidated actions, would limit their recovery to $49,999.99, exclusive of interest and costs, thereby rendering the matter triable by judge pursuant to La. C.C.P. art. 1732. The parties further stipulated that, on the date of each accident, the plaintiffs had underinsured motorist insurance coverage with Prudential Insurance Company in the amount of $100,000.00 for each accident. Finally, the parties stipulated that each driver at fault in the underlying case had liability coverage of $10,000.00 and defendant, Prudential, would be entitled to a credit of $10,000.00 in each case against any recovery plaintiffs may receive in either matter.

At trial, the plaintiffs, Althea and Earl Harrington, testified. The remaining testimony was by deposition. Further, the parties, by joint stipulation, submitted documentary evidence including medical records and bills.

Our review of the record reveals that Althea Harrington was in an automobile accident on February 14, 2002. In that accident, Mrs. Harrington’s vehicle was rear-ended by another vehicle when Mrs. Harrington was on her way to work that morning. She testified that, after that accident, she felt pain in her neck. She went to work as always but, because her pain became more severe, she presented for treatment in the emergency room that afternoon.

According to the medical records for West Jefferson Medical Center, Mrs. Harrington complained of soreness in her neck and lower back. She reported that, on *34 that date, she had been the seat-belted driver of an automobile that was hit from 14behind while stopped. The emergency-room physician, Dr. Harry Vorhaben, ordered an x-ray of Mrs. Harrington’s cervical spine, which showed no “acute ... abnormality apparent.” Dr. Vorhaben diagnosed the plaintiff with a strain of the neck and lumbar region, prescribed anti-inflammatory medication, and recommended follow-up with her primary care physician.

According to the billing records for Westbank Medical Associates, Mrs. Harrington had an office visit with her internist, Dr. Indumeet Bhatia, on March 9, 2002. Unfortunately, the notes from that visit are not included in the exhibits presented by the parties at trial.

On March 14, 2002, Mrs. Harrington was in a second automobile accident. In that accident, Mrs. Harrington’s vehicle was side-swiped by another vehicle when Mrs. Harrington was on her way to work that morning. She testified that, after that accident, she felt pain in her neck and her ankle. She sought treatment in the emergency room on the next night for “pain and swelling at the ankle,” which the doctor’s notes reflect she sustained when she “fell from a chair and twisted her right ankle” earlier that day. The emergency room physician, Dr. Jack Pomerantz, ordered an x-ray of the ankle, ruled out any fracture, and diagnosed a right ankle sprain.

On March 19, 2002, Mrs. Harrington visited Dr. Bhatia complaining of a sprained ankle from an “automobile accident on 3/14.” Mrs. Harrington reported that she “twisted her foot while trying to get out of the car” when her car was sideswiped. Dr. Bhatia diagnosed an ankle sprain and anxiety resulting from the accident. Dr. Bhatia excused the plaintiff from work for one week. Dr. Bhatia also referred the plaintiff to an orthopedist with Jefferson Orthopedic Clinic, Dr. Thomas Cashio.

| ¡¡That same day, Dr. Cashio saw Mrs. Harrington, who reported that she injured her ankle when another vehicle sideswiped her car. Dr. Cashio observed swelling and tenderness, noted that x-rays of her foot and ankle were “unremarkable,” and fitted her with an ankle support.

On March 26, 2002, Mrs. Harrington returned to Dr. Bhatia complaining of pain in her ankle, neck and back. Dr. Bhatia observed that Mrs. Harrington had restricted range of motion of her neck, and her neck, back and ankle were all “tender.” Dr. Bhatia diagnosed Mrs. Harrington with “cervical & lumbar strain” and “ankle sprain;” continued her medications; and referred her for physical therapy for her neck, back, and ankle. The medical record of that visit indicates that Mrs. Harrington’s first physical therapy session was scheduled for March 28, 2002. Further, Dr. Bhatia’s notes indicate “3-28-02 6 wks. out of work.”

On April 16, 2002, Mrs. Harrington returned to Dr. Bhatia for follow-up. On that date, Mrs. Harrington reported that her ankle and back were better as a result of physical therapy. That day, Dr. Bhatia released Mrs. Harrington to return to work with lifting restrictions. 2 The medical records from West Jefferson Medical Center indicate that Mrs. Harrington attended 19 physical therapy sessions in April and May 2002. 3

*35 On June 4, 2002, Mrs. Harrington returned to Dr. Bhatia for follow-up. Mrs. Harrington reported that she was “feeling better” although her ankle was still diagnosed as a sprain. Dr. Bhatia also noted that Mrs. Harrington was allowed to return to full duty with lifting restriction. 4 On August 19, 2002, Mrs. Harrington | ^returned to Dr. Bhatia for her yearly physical and reported “walking two miles every day & feels good.” 5

On March 5, 2003, Mrs. Harrington returned to Dr. Bhatia complaining of swelling in her head and neck. Dr. Bhatia ordered a CT scan, with and without contrast, of the neck and chest. On March 7, 2003, Mrs. Harrington underwent a CT scan of the neck, which was negative for abnormalities. On March 10, 2003, Mrs. Harrington underwent a CT scan of the chest, which showed no evidence of abnormality.

On April 28, 2003, Dr. Bhatia referred Mrs.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Brooks v. United States
E.D. Louisiana, 2019
Mosbey v. Jefferson Parish Sheriff's Office
250 So. 3d 1110 (Louisiana Court of Appeal, 2018)
Courville v. Allstate Insurance Co.
215 So. 3d 310 (Louisiana Court of Appeal, 2017)
Richard v. Hawthrone
192 So. 3d 273 (Louisiana Court of Appeal, 2016)
Parker v. Town of Woodworth
160 So. 3d 1113 (Louisiana Court of Appeal, 2015)
Patricia Parker v. Town of Woodworth
Louisiana Court of Appeal, 2015
Romero-Zambrano v. Bell
165 So. 3d 143 (Louisiana Court of Appeal, 2014)
Tamayo v. American National General Insurance Co.
150 So. 3d 459 (Louisiana Court of Appeal, 2014)
Smith v. Guidroz
125 So. 3d 1268 (Louisiana Court of Appeal, 2013)
Jurnell Smith v. Bobby Guidroz
Louisiana Court of Appeal, 2013
Babin v. State Farm Mutual Automobile Insurance Co.
113 So. 3d 251 (Louisiana Court of Appeal, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
8 So. 3d 30, 8 La.App. 5 Cir. 544, 2009 La. App. LEXIS 47, 2009 WL 91708, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrington-v-wilson-lactapp-2009.