Johnson v. Masur

493 So. 2d 881
CourtLouisiana Court of Appeal
DecidedSeptember 3, 1986
Docket85-835
StatusPublished
Cited by8 cases

This text of 493 So. 2d 881 (Johnson v. Masur) 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
Johnson v. Masur, 493 So. 2d 881 (La. Ct. App. 1986).

Opinion

493 So.2d 881 (1986)

Randy JOHNSON, Plaintiff-Appellant,
v.
Sam MASUR, David Masur, Hanover Insurance Company and Farm Bureau Insurance Company and/or Louisiana Farm Bureau Casualty Insurance Company, Defendants-Appellees.

No. 85-835.

Court of Appeal of Louisiana, Third Circuit.

September 3, 1986.

*882 Durio, McGoffin, Etc., Gary McGoffin, Lafayette, for plaintiff-appellant.

Onebane & Associates, Frank X. Neuner, Jr., Lafayette, Martin & Taulbee, Edward O. Taulbee, IV and Kenneth Olivier, Davidson, Meaux, John G. Swift, Lafayette, for defendants-appellees.

Before LABORDE and KING, JJ., and PAVY, J. Pro Tem.[*]

KING, Judge.

The main issue presented by this appeal is whether or not the trial court erred in its award of damages based on its finding that the plaintiff failed to prove that his present *883 medical condition was a result of the accident in question.

Randy J. Johnson (hereinafter referred to as plaintiff) filed suit against David H. Masur, Samuel E. Masur, and The Hanover Insurance Company (all hereinafter referred to as defendants), and Louisiana Farm Bureau Casualty Insurance Company[1] (hereinafter referred to as Farm Bureau), seeking recovery for damages that he sustained in an accident involving the collision of his automobile with an automobile being driven by Sam Masur. Plaintiff appeals from a trial court judgment in his favor, complaining of an inadequate award of damages. We affirm.

FACTS

A review of the record reveals the following facts. On August 1, 1982, while plaintiff was driving his automobile Southwesterly on Congress Street in Lafayette, Louisiana near the Congress Street-Bertrand Street intersection, plaintiff was injured when an automobile, being driven by Sam Masur and owned by David Masur, pulled out of a Mobil Station and collided with plaintiff's automobile (hereinafter referred to as the first accident). The automobile being driven by Sam Masur was owned by his father, David Masur, and was insured by The Hanover Insurance Company. Farm Bureau was the liability insurer, medical payments insurer, and underinsured insurer of the Johnson automobile. Plaintiff was taken by ambulance to Our Lady of Lourdes Hospital in Lafayette, Louisiana, where he was examined by the emergency room physician, X-rayed, and released. At the time of the accident, plaintiff was a waiter at LaFonda's Restaurant in Lafayette, Louisiana.

Following the accident, plaintiff testified that he visited his family physician, Dr. John Bernard, three to five times, complaining of back and neck problems. Plaintiff also testified that he engaged in physical therapy for a couple of months. Plaintiff was first examined by Dr. Robert Martinez, a neurologist, on November 16, 1982, on the referral of Dr. Bernard. Having the benefit of plaintiff's X-rays taken immediately after the first accident, Dr. Martinez found some angulation of the C3-C4 level in the cervical region, as well as some narrowing of the C4-C5 interspace. However, Dr. Martinez found that plaintiff had no significant muscle spasms and that plaintiff's neurological examination was normal. Dr. Martinez therefore diagnosed plaintiff as suffering from muscle and ligament injuries causing pain.

Dr. Martinez next examined plaintiff on January 17, 1983, at which time he found plaintiff to be in about the same condition. Plaintiff visited Dr. Martinez again on January 31, 1983, at which time he told Dr. Martinez that he did not want to take any medication. Plaintiff also again visited Dr. Martinez on April 28, 1983, at which time Dr. Martinez diagnosed plaintiff as having a "compression fracture at C4 level of his spine" which he felt was related to the accident.

Following the April 28, 1983 visit, Dr. Martinez admitted plaintiff into Our Lady of Lourdes Hospital in order to have a myelogram performed. Based upon the myelogram, a CAT scan, and his clinical observations, Dr. Martinez's diagnosis was that plaintiff had "cervical and lumbar myofascial pain post-traumatic, cervical disc disease with osteophyte at C3-4, and probable lumbar disc disease at L4-5." Plaintiff returned to Dr. Martinez on May 31, 1983. Because of the findings of the myelogram which revealed a bulging disc at the C4-C5 level, and because of plaintiff's complaints of pain, Dr. Martinez at that time discussed with plaintiff the advisability of a chymopapain injection, which plaintiff elected not to have.

On October 5, 1983, plaintiff was involved in a second automobile accident *884 (hereinafter referred to as the second accident) on Johnston Street in Lafayette in which an automobile being driven by Thomas Muffletto, Jr. collided with plaintiff's automobile. Plaintiff went to the emergency room following the second accident. Plaintiff filed suit against Mr. Muffletto, Mr. Muffletto's father, and their automobile insurer, State Farm Mutual Automobile Insurance Company, alleging that as a result of the second accident he had "suffered severe, disabling and permanent injuries to his body, including but not limited to severe injury to his neck, shoulders, arms and back." On April 30, 1984, a second myelogram was performed on plaintiff. Dr. Martinez testified that the second myelogram indicated an advance in plaintiff's cervical disc disease from the time of the previous myelogram.

After the second accident, plaintiff fell three times while working at Lafonda's Restaurant. The first fall occurred in the kitchen of Lafonda's Restaurant when plaintiff slipped on the wet floor. Plaintiff testified that his lower back hurt as a result of the fall, and he apparently took pain medication to relieve that pain.

A couple of weeks later, plaintiff again fell, this time slipping on some grease that was on the dining room floor. In falling, plaintiff hit a table and eventually landed on his back. Plaintiff testified that the second fall stunned him quite a bit, leaving a few bruises and caused him to stay on the floor for several minutes before getting up with assistance. Plaintiff further testified that this second fall caused him to go home early and to miss an additional day of work. Both of plaintiff's first two falls occurred in May, 1984.

In July, 1984, plaintiff fell a third time at LaFonda's Restaurant when he attempted to stand up after sitting on a bench. Plaintiff testified that he fell because of a tremendous "shooting pain" in his back. Plaintiff stayed on the floor for approximately one half hour until he was taken by ambulance to Our Lady of Lourdes Hospital, where he stayed ten days.

On July 26, 1983, plaintiff filed suit against defendants and Farm Bureau for damages in the amount of $260,000.00 arising out of the first accident. Farm Bureau then filed an answer and a supplemental answer and third party demand against the defendants, requesting judgment for full indemnity should it be found liable to plaintiff. Plaintiff's suit was consolidated for trial with a suit entitled "Louisiana Farm Bureau Casualty Company v. David H. Masur, Samuel Masur and Hanover Insurance Company," in which Farm Bureau was seeking reimbursement from the defendants of a subrogation claim for $3,452.54 paid to plaintiff, representing the sum it had paid to plaintiff under the medical provisions of its policy of insurance on plaintiff's automobile, for medical expenses incurred as a result of the first accident.

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493 So. 2d 881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-masur-lactapp-1986.