Jones v. Fin. Indem. Co.

264 So. 3d 660
CourtLouisiana Court of Appeal
DecidedJanuary 16, 2019
DocketNo. 52,421-CA
StatusPublished

This text of 264 So. 3d 660 (Jones v. Fin. Indem. 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
Jones v. Fin. Indem. Co., 264 So. 3d 660 (La. Ct. App. 2019).

Opinion

WILLIAMS, C.J.

The plaintiffs, Karen C. Jones and Calvin R. Jones, appeal a trial court judgment which they claim awarded insufficient damages for Karen's injuries resulting from an automobile accident and for Calvin's claim for loss of consortium. The plaintiffs also appeal the trial court's application of Texas law in calculating medical expenses. For the following reasons, we affirm.

*663FACTS

On October 23, 2013, the plaintiff, Karen C. Jones, a resident of the State of Texas, drove to Shreveport, Louisiana to attend a work-related training session at Willis-Knighton Medical Center. She was stopped at a traffic light at the intersection of Interstate 20 and Greenwood Road. James A. Frith was stopped behind Karen's vehicle when he was rear-ended by a vehicle being driven by Sarah L. Coleman. The collision caused Frith's vehicle to slide into the rear of Karen's vehicle.

At the time of the accident, the vehicle being driven by Coleman was covered by an automobile insurance policy issued and delivered by Foremost Insurance Company; Frith was insured by Financial Indemnity Company; Karen had an uninsured/underinsured motorist insurance policy that was issued by Farmers Texas County Mutual Insurance Company ("Farmers"). Karen's policy was negotiated, issued and delivered in the State of Texas.

Following the accident, Karen, who was 56 years old, drove herself to the emergency room at Willis-Knighton with complaints of pain in her neck and lower back. After being diagnosed with cervical and lumbar strain, Karen was released with prescriptions for a muscle relaxer and pain medication and she was given instructions to follow up with her physician. Thereafter, Karen drove herself back to her home near Dallas, Texas.

Karen had a preexisting back condition due, in part, to injuries she sustained in an automobile accident in 2004. As a result of the injuries from the 2004 accident, Karen underwent a lumber spinal fusion at the L5-S1 level in 2005.

Following the October 2013 accident, Karen was seen by Dr. Richard Marks, her prior back surgeon, on three occasions - November 5, 2013, December 17, 2013, and January 28, 2014 - during which she primarily complained of neck pain. At that time, Dr. Marks noted that Karen's back condition had not changed, with the exception of some degenerative changes, since her post-operative radiological studies in 2006. After receiving conservative treatment, such as oral medication and physical therapy for muscle strengthening, Karen did not return to Dr. Marks' office until February 2016, more than two years after the accident.

On October 7, 2014, Karen filed a lawsuit naming Frith and his insurer, Coleman and her insurer, and Farmers as defendants. Karen alleged that she sustained injuries to her neck and back as a result of the automobile accident. Karen's husband, Calvin Jones, joined the lawsuit claiming loss of consortium. Subsequently, Karen settled her claims with Coleman and her insurer; Frith and his insurer were dismissed from the lawsuit on a motion for summary judgment.1 The matter proceeded with Farmers, Karen's UM insurer, as the sole defendant.

Subsequently, on July 11, 2017, Farmers filed a motion in limine arguing that the calculation of Karen's medical expenses should be governed by Texas law. Farmers maintained that the policy was issued in Texas to a resident of Texas, and all of Karen's medical treatment (with the exception of the initial emergency room visit) was provided in Texas. Therefore, according to Farmers, the Texas "paid-not-incurred" rule should apply. The trial court granted the motion, concluding that Karen's medical expenses were governed by Texas law.

A bench trial was conducted on January 18, 2018. On the morning of trial, the *664parties stipulated that Karen's medical expenses through January 28, 2014, totaled $7,593.05, and the expenses incurred thereafter totaled $138,854.86.

As stated above, the evidence adduced at trial established that Karen had injured her back in a previous automobile accident in 2004, and she had undergone a lumbar fusion at L5-S1 as a result of that accident. Following the October 2013 accident, Karen was seen by Dr. Richard Marks, her prior back surgeon on three occasions - November 5, 2013, December 17, 2013, and January 28, 2014.2 During the first visit, Dr. Marks noted that Karen's back problems were unchanged since 2006. After the three visits to Dr. Marks, Karen did not seek any further treatment for neck and back pain until February 2016.

Karen testified her neck and back pain never resolved and that it had "always been there since the wreck." She explained that she "just lived with [the pain]." According to Karen, she decided to return to Dr. Marks' office when the pain became so "excruciating," that she "could not stand it anymore," and it became difficult to "be normal in any form or fashion." Further, Karen testified that she did not seek medical treatment between January 2014 and February 2016 because she was afraid of having to deal with employment issues.3

On cross-examination, Karen testified as follows: the impact from the collision did not cause the airbags in her vehicle to deploy; the photographs depicted minor damage to her vehicle; after the accident, she had difficulty closing the liftgate on her SUV; she did not miss any days from work as a result of the accident; Dr. Marks did not restrict her activities after the accident; she continued to drive around in the Dallas-Fort Worth area doing her job in medical devices/equipment sales; she did not seek medical treatment for her neck or her back between January 2014 and February 2016; and during her deposition in February 2016, she described her pain as "tolerable."

Further, on cross-examination, Karen admitted that according to Dr. Marks' notes from her November 2013 visit, she described her right low back and upper gluteal pain was "mild to moderate." She also admitted that Dr. Marks noted that her back pain was unchanged from before the October 2013 accident; and when she returned to Dr. Marks in February 2016, he noted that she reported "severe" left gluteal pain.

Calvin Jones, Karen's husband, testified as follows: immediately after the accident, he did not notice "anything too much out of the ordinary other than [Karen] was *665kind of sore and everything like that"; as time passed, he began to notice that Karen was "sleeping more restless" and she had become less active; he "put two and two together" and concluded that Karen was experiencing back pain based on his own prior issues with back pain and lumbar surgery;4 after he began to question Karen, she admitted that she was having back pain; after the October 2013 accident, Karen stopped doing activities she had enjoyed, such as gardening, going to the movies and attending baseball games; and he was forced to sell his boat because it was "too hard for [Karen] to get on and off the boat" and she could not tolerate being on the boat "unless the lake was absolutely glass smooth."

Dr. Marks testified via a videotaped deposition.5 Dr.

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Bluebook (online)
264 So. 3d 660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-fin-indem-co-lactapp-2019.