Kaiser v. Hardin

953 So. 2d 802, 2007 WL 1108816
CourtSupreme Court of Louisiana
DecidedApril 11, 2007
Docket2006-C-2092
StatusPublished
Cited by112 cases

This text of 953 So. 2d 802 (Kaiser v. Hardin) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kaiser v. Hardin, 953 So. 2d 802, 2007 WL 1108816 (La. 2007).

Opinion

953 So.2d 802 (2007)

Thurman and Rosemary KAISER
v.
Harry HARDIN and United Services Automobile Association.

No. 2006-C-2092.

Supreme Court of Louisiana.

April 11, 2007.

*804 McCranie, Sistrunk, Anzelmo, Hardy, Maxwell & McDaniel, Peter Joseph Wanek, Lynda Albano Tafaro, Metairie, for applicant.

George F. Kelly, III, for respondent.

PER CURIAM.

Defendants, Harry Hardin and United Services Automobile Association ("USAA"), seek review of a ruling of the court of appeal which amended the trial court judgment to increase plaintiffs' damage award. For the reasons that follow, we now reverse the judgment of the court of appeal and reinstate the trial court's judgment.

UNDERLYING FACTS AND PROCEDURAL HISTORY

By way of background, plaintiffs, Thurman and Rosemary Kaiser, both of whom are in their mid-70's, were involved in a total of three separate automobile accidents during the span of three and a half weeks. The first accident occurred on December 28, 2000, when plaintiffs were involved in a rear-end collision with Leon Parker in Jefferson Parish.[1] On January 15, 2001, plaintiffs were involved in a second accident when their vehicle was rearended by Harry Hardin at the intersection at St. Charles Avenue and Euterpe Street in Orleans Parish. Finally, on January 22, 2001, plaintiffs were involved in a third accident when Amy Mullen backed her vehicle out of a service alley onto Lane Street and collided with plaintiffs' vehicle.

The instant litigation began when plaintiffs filed suit against Mr. Hardin and his insurer, USAA, based on the January 15, 2001 accident.[2] Prior to trial, Mr. Hardin stipulated to liability. The case then proceeded to a jury trial on the issue of damages.

At trial, Mr. Hardin, testified that he hydroplaned into the back of plaintiffs' vehicle on the St. Charles Avenue. According to Mr. Hardin, plaintiffs told him that they weren't injured and did not need medical attention. He testified that his *805 vehicle did not receive any damage from the accident, but that plaintiffs' vehicle had minor damage to its bumper.

Mrs. Kaiser testified that she suffered a stroke in October 2000, three months before the accident. She explained that she experienced tingling in two of her fingers as a result of the stroke. She also admitted that on December 28, 2000, two weeks prior to her accident with Mr. Hardin, she and Mr. Kaiser were rear ended in a car accident on the service road near Transcontinental Boulevard in Jefferson Parish. She stated that she was not injured in this accident. Two weeks later, on January 15, 2001, Mr. Hardin rear ended her husband's Nissan truck on St. Charles Avenue. Mrs. Kaiser testified that she felt immediate pain but did not go to the hospital because she believed her pain would not last. She first sought treatment two days after the accident with Dr. French at the Pontchartrain Bone and Joint Clinic, complaining of neck pain extending into her arms and numbness in her left fingers and thumb. According to Mrs. Kaiser, Dr. French prescribed various medications, including Celestone shots in her shoulder, as well as physical therapy. On January 22, 2001, after she saw Dr. French, Mrs. Kaiser was involved in a third car accident when Amy Mullen backed out of a service alley and hit plaintiffs' car. Mrs. Kaiser testified that this accident was not as severe as her second accident because she saw the car backing toward her and was able to brace her arms against the dashboard to prepare for the jolt.

Mrs. Kaiser testified that she continued to seek treatment from Dr. French for a year, until he moved away, at which time she sought treatment for two or three years from Dr. Sketchler. She asserted that she continues to suffer from the same symptoms since her January 15th accident and that she must visit Dr. Sketchler every three months for her injections.

On cross examination, Mrs. Kaiser admitted that she made a claim for soft tissue injuries which she sustained as a result of the first accident of December 28, despite her current testimony that she was not injured in that accident. When asked about the police report, which indicated that she suffered a possible injury as a result of the first accident, she indicated the report was wrong because she never spoke to the officer. Mrs. Kaiser also admitted that she never told the police officer she was injured after the second accident of January 15, but asserted that she told Mr. Hardin that she was "hurting." Mrs. Kaiser claimed that Dr. French's records, which indicated Mrs. Kaiser had been suffering from her symptoms for one month prior to the second accident were inaccurate. Finally, she admitted that the property damage caused to the Kaiser vehicle in the third accident of January 22 was much more extensive and expensive than the property damage caused by the second accident of January 15.

Mr. Kaiser testified next. He testified that after the first accident, he was shook up and felt discomfort in his right shoulder and left arm, but did not seek medical attention. He stated that his vehicle sustained approximately $362.00 in damage as a result of the second accident and opined that the second accident was much more severe in impact than the first accident. According to Mr. Kaiser, his right biceps slipped down to his elbow as a result of the impact of the second accident; however, he explained that he immediately pushed his right biceps back into place and it remained in a straightened position. He also experienced pain in his right shoulder. Mr. Kaiser acknowledged that he did not immediately seek medical treatment for *806 his pain. In addition, Mr. Kaiser testified that in his opinion the third accident was not nearly as severe as the second accident.

According to Mr. Kaiser, he first sought treatment with Dr. Persich, his family doctor, for his shoulder and biceps injuries about two months after the second accident when his injuries appeared to be getting worse. At Dr. Persich's recommendation, Mr. Kaiser sought treatment from Dr. French at the Pontchartrain Bone and Joint Clinic. Mr. Kaiser testified that he only told Dr. French about his second accident "because the second one did me in." He testified that Dr. French told him he had a ruptured biceps tendon and recommended physical therapy, which Mr. Kaiser attended twice a week. Mr. Kaiser testified that Dr. Sketchler, who began to see him after Dr. French left the Pontchartrain Bone and Joint Clinic, told him that he would eventually require surgery on his torn rotator cuff. Mr. Kaiser testified that after the accident, his sexual activity was curtailed, that he could no longer play football, garden, or cut the grass.

On cross examination, Mr. Kaiser acknowledged that he told his attorney he suffered discomfort in his right shoulder and left arm after the first accident. He also acknowledged his interrogatories indicated that he suffered soft tissue injuries and neck pain as a result of the first accident, but claimed that he didn't remember anyone telling him that he suffered soft tissue injuries. He also acknowledged that Dr. French told him he had severe degenerative arthritis in both shoulders, which likely predated the accident.

Dr. Donald French's deposition was entered into the record. In his deposition, Dr. French, an orthopedic surgeon, testified that he first saw Mr. Kaiser in March 2001 when Mr. Kaiser sought treatment for injuries sustained in the second accident of January 15, 2001. At that time, Mr. Kaiser reported that he suffered pain in both shoulders, and an abnormality in his right arm. Dr. French testified that Mr.

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Bluebook (online)
953 So. 2d 802, 2007 WL 1108816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kaiser-v-hardin-la-2007.