Jose Rodriguez-Zaldivar and Dylcio Rodriguez Cruz v. Charles Leggett and Progressive Casualty Insurance Company

• Court: Louisiana Court of Appeal
• Decided: March 29, 2023
• Docket: 2021-CA-0478
• Status: Published

Opinion

JOSE RODRIGUEZ- * NO. 2021-CA-0478 ZALDIVAR AND DYLCIO RODRIGUEZ CRUZ * COURT OF APPEAL VERSUS * FOURTH CIRCUIT CHARLES LEGGETT AND * PROGRESSIVE CASUALTY STATE OF LOUISIANA INSURANCE COMPANY *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-12246, DIVISION “C” Honorable Sidney H. Cates, Judge ****** Judge Joy Cossich Lobrano ****** (Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins, Judge Paula A. Brown, Judge Dale N. Atkins)

On Remand from Louisiana Supreme Court

Miguel A. Elias Paula J. Ferreira Graham Brian LAW OFFICE OF MIGUEL A. ELIAS 4224 Williams Boulevard Kenner, LA 70065

COUNSEL FOR PLAINTIFFS/APPELLEES

Christopher M. Short Nat G. Kiefer, Jr. Kris P. Kiefer KIEFER & KIEFER 1100 Poydras Street, Suite 1300 New Orleans, LA 70130

COUNSEL FOR DEFENDANT/APPELLANT

REVERSED AND RENDERED

MARCH 29, 2023 JCL This motor vehicle accident case is before this Court on remand from the

DLD Louisiana Supreme Court. Rodriguez-Zaldivar v. Leggett, 22-01688 (La. 2/7/23),

SCJ 354 So.3d 658. On our de novo review, we reverse the March 10, 2021 judgment

PAB of the district court, which awarded plaintiffs/appellees, Jose Rodriguez-Zaldivar DNA (“Zaldivar”) and Dylcio Rodriguez Cruz (“Cruz”) (collectively, “Plaintiffs”),

$15,000 and $65,000, respectively, in damages. Further, we render a judgment in

favor of defendant/appellant, Progressive Security Insurance Company

(“Progressive”), and dismiss Plaintiffs’ claims with prejudice.

The facts and procedural history of this matter are set forth in detail in this

Court’s prior opinion. Rodriguez-Zaldivar v. Leggett, 21-0478 (La. App. 4 Cir.

9/28/22), --- So.3d ---, 2022 WL 4494100, writ granted, judgment vacated and set

aside, 22-01688 (La. 2/7/23), 354 So.3d 658. Progressive brought its appeal before

this Court, seeking reversal of the March 10, 2021 trial judgment awarding

damages to Plaintiffs. In our prior opinion, this Court found that Plaintiffs failed to

show that they were unavailable for trial, as provided in La. C.C.P. art. 1450, and

1 that the erroneous admission of Plaintiffs’ depositions into evidence, in lieu of their

live testimony, affected a substantial right, Progressive’s opportunity to cross-

examine witnesses at trial. The Louisiana Supreme Court upheld our evidentiary

determination, but it vacated this Court’s remand of the case for a new trial.

Pursuant to the Supreme Court’s instruction, we conduct an independent de novo

review of the record to determine the sufficiency of the evidence. Rodriguez-

Zaldivar, 22-01688, p. 1, 354 So.3d at 658 (citing Cook v. Sullivan, 20-01471, pp.

6-7 (La. 9/30/21), 330 So.3d 152, 157, reh’g denied, 20-01471 (La. 12/7/21), 347

So.3d 863). On our review, we find that the evidence is insufficient to prove

causation of Plaintiffs’ injuries.

Plaintiffs allege that they sustained personal injuries in a vehicle collision,

wherein Progressive’s insured, Charles Leggett (“Leggett”), backed his Chevrolet

Tahoe into a parked utility van owned by Zaldivar. At trial, Plaintiffs did not

testify, and we cannot consider their depositions in our review. No witness testified

at trial to Plaintiffs’ accounts of their accident. Notably, Leggett, the only live

witness at trial, testified that no one was inside the van at the time of the collision.

Leggett testified that if a person was in the front seat of the van, he would have

seen him. According to Leggett, after the collision, he parked and exited his Tahoe,

and a male in his 30’s or 40’s approached him from down the street, claiming to be

the owner of the van. The other evidence introduced at trial included the

Progressive policy, photographs of the van and accident site, map images of the

accident site, and Plaintiffs’ respective medical records.

2 In the absence of Plaintiffs’ testimony, the only evidence admitted at trial

that Plaintiffs were inside the van at the time of the collision are their patient

histories – the statements given to their medical providers which purport to give a

reason for their injuries – as documented within their medical records. Progressive

stipulated to the authenticity of most of these medical records at trial, with the

exception of certain billing records it objected to as untimely produced, but

reserved its rights to challenge medical causation.

We recognize that patient histories are usually admissible as hearsay

exceptions. See La. C.E. art. 803(4). Nevertheless, where the inability to confront

or cross-examine a witness is at issue, such patient histories alone are generally

insufficient to meet a patient’s burden of proof as to causation. Abadie v. Metro.

Life Ins. Co., 00-344, 00-345 - 00-856, pp. 5-6 (La. App. 5 Cir. 4/11/01), 804

So.2d 4, 6-7 (citing Holmes v. Caeser, 528 So.2d 1391, 1392 (La. App. 4th Cir.

1988); Morris v. Players Lake Charles, Inc., 99-1864, pp. 3-4 (La. App. 3 Cir.

4/5/00), 761 So.2d 27, 29); see also Gooding v. Merrigan, 15-200, pp. 6-7 (La.

App. 5 Cir. 11/19/15), 180 So.3d 578, 582-83 (citing Trascher v. Territo, 11-2093,

p. 8 (La. 5/8/12), 89 So.3d 357, 364). Rather, “the medical record provides at most

prima facie evidence that the statements were made, not of the truth of the

statements.” Abadie, 00-344, 00-345 - 00-856, p. 6, 804 So.2d at 7 (quoting

Morris, 99-1864, pp. 3-4, 761 So.2d at 29).

“The plaintiff seeking damages in a civil action must prove each element of

his claim by a preponderance of the evidence.” Bradley v. Safeway Ins. Co. of La.,

3 08-1188, p. 2 (La. App. 4 Cir. 5/6/09), 17 So.3d 1, 2 (citing Erwin v. State Farm

Mut. Auto. Ins. Co., 34,127, p. 4 (La. App. 2 Cir. 11/1/00), 771 So.2d 229, 232)).

Louisiana jurisprudence employs a duty-risk analysis to resolve negligence claims

under La. C.C. art. 2315. Doe v. McKesson, 21-00929, p. 7 (La. 3/25/22), 339

So.3d 524, 531. A plaintiff seeking to prevail under a negligence claim must prove

five elements:

(1) the plaintiff suffered an injury; (2) the defendant owed a duty of care to the plaintiff; (3) the duty was breached by the defendant; (4) the conduct in question was the cause-in-fact of the resulting harm; and (5) the risk of harm was within the scope of protection afforded by the duty breached.

Id. “Failure to prove any of the elements of the duty-risk analysis results in a

determination of no liability.” Seymour v. House of Blues New Orleans Rest.

Corp., 20-0297, p. 6, n. 4 (La. App. 4 Cir. 11/25/20), 309 So.3d 805, 811 (quoting

Finch v. HRI Lodging, Inc., 49,497, p. 8 (La. App. 2 Cir. 11/19/14), 152 So.3d

1039, 1044).

“The test for determining the causal relationship between an accident and a

subsequent injury is whether the plaintiff proved through medical and lay

testimony that it is more probable than not that the subsequent injuries were caused

by the accident.” Williams v. Stewart, 10-0457, p. 6 (La. App. 4 Cir. 9/22/10), 46

So.3d 266, 272. We find the evidence of record is insufficient to prove causation of

Zaldivar’s and Cruz’s injuries. Without Plaintiffs’ testimony, the only evidence of

Plaintiffs’ presence inside the van at the moment of the collision are their

statements given to health care providers, “which, although admissible as hearsay

4 exceptions, standing alone are insufficient to carry [their] burden.” See Abadie, 00-

344, 00-345 - 00-856, p. 7, 804 So.2d at 7.

Plaintiffs argue that they can establish causation via the Housley

presumption. We disagree. The Housley presumption is a jurisprudentially-created

concept wherein:

a plaintiff may be aided by a presumption of causation if before the accident the plaintiff was in good health, but subsequent to the accident the symptoms of the disabling condition appear and those symptoms continuously manifest themselves afterward providing that the evidence establishes a reasonable possibility of causal connection between the accident and the disabling condition.

Williams, 10-0457, pp. 6-7, 46 So.3d at 272 (citing Housley v. Cerise, 579 So.2d

973, 980 (La. 1991))(other citations omitted). We find no case, however, that

would allow Zaldivar and Cruz a presumption that they were involved in an

accident. Contrast Housley, 579 So.2d at 975 (wherein plaintiff and corroborating

eyewitness testified that plaintiff fell down the stairs). Even if the Tahoe collided

with the van, we cannot presume that both Zaldivar and Cruz were inside.

Evidence is needed. We cannot apply the Housley presumption to these facts, and

the record before us on remand lacks sufficient evidence that the Tahoe’s collision

with the van caused Plaintiffs’ injuries.

Accordingly, for the reasons set forth herein, we reverse the March 10, 2021

trial judgment, we render judgment in favor of Progressive Security Insurance

Company, and we dismiss Plaintiffs’ claims with prejudice.