Hebert v. National Union Insurance Co.

567 So. 2d 788, 1990 La. App. LEXIS 2163, 1990 WL 145757
Louisiana Court of Appeal·Decided October 3, 1990·No. No. 89-374·Published·Cited by 2 cases

Opinions

KNOLL, Judge.

The sole issue on appeal concerns plaintiffs quantum award. The award to Ferdinand Hebert is the primary issue, because his award was for an aggravation of a preexisting condition.

Appellant, City of Lake Charles, ⅛ oeals the judgment of the trial court awai ling Ferdinand Hebert and Helen Hebert $163,-000 and $6,500, respectively, for personal injuries they received. The City of Lake Charles assigns as error that the trial court committed manifest error by awarding excessive damages, and finding that Ferdinand Hebert suffered an aggravation of a preexisting condition as a result of the accident. We affirm.

The learned trial judge favored us with excellent written reasons for judgment which we adopt and incorporate herein as our own opinion, set forth below:

“On August 19, 1987, petitioners, Ferdinand Hebert and Helen Hebert, were headed west on Contour Drive in the city of Lake Charles when suddenly, and without warning, a front-end loader owned by the City of Lake Charles, and being operated by their employee, Wilson Gotreaux, backed out of a vacant lot and struck Mr. Hebert’s 1986 Ford F150 pickup truck, resulting in injury to Ferdinand and Helen Hebert.

Defendant stipulated liability on the part of the City of Lake Charles, and on total past-due medical expenses, in the amount of $15,325.37 for Ferdinand Hebert, and for $1,466.91 incurred by Helen Hebert. Defendant further stipulated as to the damage to Mr. Ferdinand Hebert’s 1986 Ford F150 pickup truck in the amount of $1,428.95.

The only issue before this Court is the amount of damages to be awarded to Ferdinand Hebert and Helen Hebert.

The Court shall first take up the issue of general damages due Helen Hebert. At the time of the accident, Helen Hebert was wearing her seat belt. Mrs. Hebert testified that immediately after the accident she attempted to get out of the truck, and scratched her arms on the debris on the side of the road. She stated she was upset at the time, and these were the only injuries she noticed immediately after the accident. However, upon arriving home, she began to experience neck and shoulder pain, which she tried to control with aspirin. The pain continued, and she sought the treatment of Dr. Donald England, a chiropractor, practicing in Lake Charles. Dr. England initially saw Helen Hebert on August 26, 1987. At the time Dr. England saw Helen Hebert, she was complaining of pain in the back of her neck, suboccipital headaches, pain in the top of her left shoulder, thoracic pain and neck, crackling when she moved it. Dr. England undertook conservative treatment of Mrs. Hebert’s symptoms, consisting of heat, electrofibrillation and manual manipulations. Mrs. Hebert continued to experience a great deal of pain, and therefore, Dr. England referred her to Dr. Clark Gun-[790] derson, an orthopaedic surgeon, for his opinion.

Dr. Gunderson saw Mrs. Hebert on September 25, 1987. On that day, Mrs. Hebert complained of intermittent pain in the back of hér neck, which radiated over her left shoulder. She further complained of dizziness and ringing in her ears. Dr. Gunder-son examined Mrs. Hebert, finding tenderness in the left side of her neck posteriorly, as well as over the scalene muscles on the left side. She had diminished left lateral reflexes on the left side. Dr. Gunderson was of the opinion that as a result of the accident, Mrs. Hebert suffered a cervical straining injury of mild to moderate degree, and referred her back to Dr. England for further conservative treatment.

Dr. England continued to treat Mrs. Hebert conservatively until December 4, 1987, at which time he discharged her from her [sic] care. Her only continued complaint at the time of discharge was the ringing in her ears.

Mrs. Hebert testified that she still suffers from intermittent ringing in her ears, is unable to clean her oven, as the bending of her neck makes her dizzy, and feels she has lost some of her strength in her shoulders.

In view of the injuries, duration of treatment, and her continued ringing in her ears, the Court feels that the sum of $6,500.00 for general damages would adequately compensate her for injuries. In addition to the general damages, she is also awarded past medical expenses in the sum of $1,466.91, for a total award to Mrs. Helen Hebert of $7,966.91.

The next issue is what are the total damages due Mr. Ferdinand Hebert as a result of the accident of August 19, 1987.

At the time of the collision, Mr. Hebert was wearing his seat belt. The front-end loader struck Mr. Hebert’s truck on the driver’s side, pinning Mr. Hebert in the vehicle, as he was unable to unbuckle his seat belt.

Prior to this accident, Mr. Ferdinand Hebert had prior neck surgery, consisting of an anterior diskectomy, and fusion at the C6-7 level, which surgery was performed by Dr. William Foster in 1976. Dr. Foster also performed at that time a carpal tunnel release. The surgery was successful, and Mr. Hebert was able to continue his employment in the oil industry, and had no further neck complaints until the time of this accident.

In 1982, Mr. Hebert suffered a back injury while working offshore. Dr. Raggio, a neurosurgeon, testified via deposition that Mr. Hebert had four surgeries to his back. The first occurred on May 25, 1982, at which time a complete laminectomy at L5, and foraminotomy at the L4 and L5 levels was performed by Dr. John Raggio. Thereafter, on September 16, 1982, a posterior laminectomy interbody fusion was performed by Dr. Raggio and Dr. William Akins, an orthopaedic surgeon. Again, in March, 1983, Mr. Hebert underwent an anterior interbody fusion, performed by Dr. Raggio and Dr. Akins, wherein they fused the L4-5 and L5-S1 vertebrae. Unfortunately, this was not successful, and in October, 1984, a posterior interbody fusion with fibular strut graft was performed at the L4-5 and SI levels by Dr. Akins. Mr. Hebert remained under the care of Dr. William Akins until January, 1986, at which time he was discharged from his care.

From January, 1986, until the time of the accident Mr. Hebert had no further treatment for his back injuries. Mr. Hebert tolerated his surgeries well, and after his release in January, 1986, was able to take long walks, prepare and take care of his garden, dance, and take his fishing boat out, all on a regular basis.

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Hebert v. National Union Insurance Co., 567 So. 2d 788, 1990 La. App. LEXIS 2163, 1990 WL 145757 (La. Ct. App. 1990).

567 So. 2d 788 (Hebert v. National Union Insurance Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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