In re State Farm Mutual Automobile Insurance Co.

483 S.W.3d 249, 2016 Tex. App. LEXIS 742, 2016 WL 316626
CourtCourt of Appeals of Texas
DecidedJanuary 26, 2016
DocketNO. 02-15-00252-CV
StatusPublished
Cited by20 cases

This text of 483 S.W.3d 249 (In re State Farm Mutual Automobile Insurance Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re State Farm Mutual Automobile Insurance Co., 483 S.W.3d 249, 2016 Tex. App. LEXIS 742, 2016 WL 316626 (Tex. Ct. App. 2016).

Opinion

OPINION1

ANNE GARDNER, JUSTICE

Relator State Farm Mutual Auto Insurance Company has filed a petition for writ of mandamus asking this court to compel the Honorable Susan McCoy, presiding judge of the 153rd District Court of Tar-rant County, to set aside her January 30, 2015 order granting the motion for new trial filed by real parties in interest Scott Newell and Heidi Newell and to reinstate the trial court’s September 30, 2014 final judgment. See Tex. Gov’t Code Ann. § 22.221 (West 2004), see also Tex,R.App. P. 52. For the reasons explained below, we conditionally grant the petition.

I. Background

The Newells sued State Farm, their insurer, for underinsured motorist benefits arising from a June 2009 ear accident. Scott claimed the injuries he sustained in the accident necessitated surgery in December 2009. The parties stipulated that the negligence of the other driver, Terry Cox, caused the accident. The parties also stipulated that Scott was insured under a State Farm auto policy that provided un-derinsured motorist coverage. The remaining issues were tried to a jury.

The accident

Scott testified that on June 24, 2009, he stopped his vehicle at a red light at the intersection of North Beach Street and Fossil Vista Road in Fort Worth. Cox’s vehicle was initially stopped five to six feet behind him, but then Scott felt an impact from the rear. Scott described the impact as a “jolt” and testified, “It wasn’t ragely intensive or anything, but I knew I had been hit by another car.” Scott was wearing a seatbelt at the time of the accident and testified that he did not hit the steering wheel or “fly around in the vehicle” as a result of the collision.

Scott got out of his car and saw that Cox’s car was still in contact with his car. After Cox backed up, Scott “could see that there was at least some mild damage to [his] vehicle.” Scott admitted that the damage to the vehicle was minor, and he did not feel like he was injured. Scott drove his vehicle to work at Dallas Love Field and worked for the rest of the day without any problems.

Cox, who testified through deposition at trial, stated that while he was stopped at the light, he looked to his left, “thought [he] saw some movement like the traffic was getting ready to go,” and while he was turning back to look forward, he felt a bump. According to Cox, his foot was on the brake at the time, and he did not recall lessening the pressure on the brake. He was adamant he did not accelerate. At [253]*253■first, Cox thought Scott’s car had rolled backwards into Cox’s car. Cox conceded that he was not sure if Scott’s vehicle rolled backwards and- that it was possible that Cox’s vehicle rolled forward. Cox testified that Scott claimed there was a dent or a crease in his bumper to the left of the license plate, but Cox saw no damage to Scott’s car. Cox’s vehicle was not damaged. The driver’s crash report completed by Cox on the day of the accident stated that he was “stopped at the traffic signal behind [Scott’s vehicle]. It seemed to roll backwards as [Cox] crept forward and [Cox] felt a very slight bump. ■ No damage was done to either vehicle.”

Mike Rangel, a licensed professional engineer in Texas and a licensed and accredited accident reconstructiohist, testified as State Farm’s accident reconstruction expert. In formulating his opinions, Rangel reviewed a photograph of the post-accident position of the vehicles,2 photographs of the post-accident condition of vehicles, the drivers’ deposition testimonies, the driver’s crash report completed by Cox,3 the repair estimate for Scott’s car, the vehicles’ specifications, and crash-test data for the two vehicles. Rangel opined that the accident’s impact or closing speed was less than four miles per hour, meaning that Cox hit Scott’s vehicle at less than four miles per hour. Rangel testified that the position of the vehicles after the accident— they were still touching — was' consistent with Cox’s vehicle rolling forward at a low speed and making contact with Scott’s vehicle. At a higher rate of speed, such as ten miles per hour, the vehicles would be separated post-accident. Rangel testified that based on the closing speed and the lack of damage to the vehicles, the velocity change of Scott’s vehicle was less than two miles per hour, meaning that after impact, Scott’s vehicle would have moved forward at two miles per hour. According to Ran-gel, the force and velocity of the accident was the equivalent of backing into a curb at one to two miles per hour.

Based upon his review of the post-accident photographs, other than a chip on Cox’s front bumper cover to the left side of the license' plate, Rangel could see no dis-cernable damage to Cox’s vehicle and observed a little scuff on the left side of Scott’s rear license plate; Rangel testified that the repair estimate for Scott’s vehicle was $791.41, which was for the refinishing and polishing of the bumper cover. Ran-gel explained that the bumper cover was not the bumper itself but a plastic cover that covers the bumper. Rangel also noted that Scott’s vehicle was equipped with active head restraints, which, in a rear-end collision, limit the amount of rearward motion of an occupant’s head. Rangel testified that Scott’s airbags did not deploy, but he conceded that they typically do not deploy when a vehicle is hit from behind.

Scott’s Medical History

Scott testified that he had neck pain in the past. He denied that it was ongoing, continuous pain and described the neck pain as “isolated incidents” from car acci-derits that occurred several years prior to the June 2009 accident. Scott testified he was in an automobile accident in 1996 that resulted in neck pain. He stated that the pain and the treatment associated with the accident did not persist longer than a few weeks following the accident.

Scott testified that in 1999, Dr. John Ferris — Scott’s physician for at least ten [254]*254years prior to the June 2009 accident— treated Scott for a “kink” in his neck that occurred after he turned his head wrong while shaving. Scott’s medical records, which were admitted into evidence, stated that Dr. Ferris diagnosed Scott with a muscle spasm in his left posterior cervical muscles. Dr. Ferris prescribed Tylenol 3 and Norflex, a muscle relaxer. ;

Scott testified that Dr. Ferris also treated him for .back and neck injuries he sustained in a 2002 rear-end automobile collision in Florida. The car that rear-ended the vehicle in which Scott was a passenger was traveling at forty miles per hour when it struck the vehicle. The x-rays -taken during an emergency room visit, when he returned to Texas were negative. Scott was prescribed Flexeril and Vicodin. Scott reported to Dr. Ferris that the medications helped with the pain, but he was still in a lot of pain and had mobility problems. Dr. Ferris’s notes stated that Scott’s range of motion was severely impaired and that the muscles on Scott’s left side were very tight. Dr. Ferris ordered a physical therapy consult for whiplash injury, placed Scott on Naproxen, and ordered Scott to continue with Flexeril and Vicodin twice a day.

In 2004, Scott went to a CareNow clinic complaining of right shoulder and neck pain that he, woke up with one morning. Scott denied any injury. He was prescribed, anti-inflammatory drugs and muscle relaxers.4 .

In ,2005,. Dr. Ferris, treated.

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Cite This Page — Counsel Stack

Bluebook (online)
483 S.W.3d 249, 2016 Tex. App. LEXIS 742, 2016 WL 316626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-state-farm-mutual-automobile-insurance-co-texapp-2016.