Koehn v. Rhodes

882 So. 2d 757, 2004 WL 2125792
CourtLouisiana Court of Appeal
DecidedSeptember 24, 2004
Docket38,941-CA
StatusPublished
Cited by7 cases

This text of 882 So. 2d 757 (Koehn v. Rhodes) 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
Koehn v. Rhodes, 882 So. 2d 757, 2004 WL 2125792 (La. Ct. App. 2004).

Opinion

882 So.2d 757 (2004)

Jacquelyn KOEHN, Plaintiff-Appellant
v.
Clifford RHODES, Jr., et al, Defendants-Appellees.

No. 38,941-CA.

Court of Appeal of Louisiana, Second Circuit.

September 24, 2004.

*759 Alan Stegall, for Jacquelyn Koehn.

Lynn E. Estes, Jr., Shreveport, for Clifford Rhodes.

Bodenheimer, Jones, Szwak & Winchell by Mary E. Winchell, Shreveport, for Clifford Rhodes and U.S. Agencies Casualty Insurance Co.

Hubley, Marcotte, Rhodes & Joffrion by Lydia M. Rhodes, Shreveport, for Economy Fire & Casualty Insurance Company and Jennifer Graves.

Cook, Yancey, King & Galloway by Lee H. Ayres, Scott L. Zimmer, Douglas Lee Harville, Shreveport, for Government Employees Insurance Company.

Tracy L. Oakley, for Safeway Insurance Company of Louisiana.

Before WILLIAMS, GASKINS and CARAWAY, JJ.

*760 CARAWAY, J.

The plaintiff in this appeal seeks review of the trial court's awards for damages and costs arising from an automobile accident. Finding no abuse of the trial court's discretion in the rulings for general damages and costs, we affirm those awards. However, the trial court's unexplained rejection of certain medical expenses incurred during the interval for plaintiff's recovery represents error, requiring our amendment of the award for special damages.

Facts

The suit arises from a vehicular collision on May 27, 2001 between a car and a truck at a heavily traveled intersection in Shreveport, in which occupants of both vehicles sustained injuries. The appellant, Jacquelyn Koehn, was a guest passenger in a 1991 Nissan 300ZX. The owner of the Nissan, James Ladner, sat in the front passenger seat and his girlfriend, Jennifer Graves, was driving. At trial, Ladner, Graves and Koehn all testified that the traffic signal on Mansfield Road was green as they approached the intersection. The accident occurred at approximately 4:30 a.m.

Defendant, Clifford Rhodes, Jr., and his passenger occupied a Chevy pick-up truck owned by Rhodes' brother, Christopher Wright. Rhodes testified that he was stopped at the traffic signal at Mansfield Road and Jewella Avenue. After the light turned green, he waited for oncoming traffic before attempting a left turn. The traffic signal cycled from solid green to a protected green arrow. The vehicles collided when Rhodes was in the middle of the intersection, and the truck rolled into a ditch. Rhodes testified that he never saw the red Nissan coming.

As a result of the accident, the Nissan driver's side air bag inflated to protect Graves. She remained in the vehicle until emergency medical personnel helped her out and thereafter, she was transported to the hospital. Koehn remained in the back seat until Graves was extricated. After getting out of the car, she walked to the convenience store nearby to call her boyfriend. Rhodes was removed from the truck by emergency medical personnel and also transported to the hospital for treatment of his injuries.

Later on that day, Koehn went to the emergency room because of pain and discomfort in her right hip and right wrist. She returned to the emergency room a second time five days later. Thereafter, she was treated by a chiropractor, Dr. Rizzo, between June 15 and August 15. She made a third emergency room visit on August 10. Although the chiropractic treatment helped with some symptoms, she was still experiencing right hip and leg pain.

In late August, the chiropractor referred her to Dr. Etheredge, an orthopedic surgeon, for these problems. Koehn testified that she had no health insurance coverage, but after the accident when she had to change jobs, her new employer offered health insurance benefits so she could obtain medical treatment with Dr. Etheredge. He examined her and ordered an MRI, which revealed pre-existing degenerative changes and a bulging disc at L-5/S-1. Koehn saw Dr. Etheredge five times between August and February, 2002, when he retired. He treated her conservatively, prescribing physical therapy, exercises and medication. After Dr. Etheredge retired from practice, Koehn consulted Dr. Foss, her primary care physician, when her symptoms flared up again. Dr. Foss referred her to another orthopedic surgeon, Dr. Mays, and a spine specialist, Dr. Goodman, for additional medical treatment. Koehn calculated her total expenses for medical treatment as $11,744.44.

*761 At trial, the parties stipulated that the truck driven by Rhodes was primarily insured by USAgencies and also covered by an excess insurance policy issued by Safeway. They also stipulated that the Ladner vehicle was insured by Economy Fire & Casualty and that Ms. Koehn's U/M insurer was Geico. The policy limits were as follows:

  US Agencies    $10,000 per person/$20,000 per occurrence
  Safeway        $10,000 per person/$20,000 per occurrence
  Economy        $25,000 per person/$50,000 per occurrence
  Geico          $10,000 U/M

After a bench trial, the trial court issued written reasons for judgment on the liability issue, finding that both drivers were at fault for the accident. The trial court assigned Graves 40% of the fault and Rhodes 60% of the fault. Rhodes settled with Economy Fire & Casualty, leaving the trial court's assessment of quantum for Koehn's damages as the only remaining issue. In reasons for judgment, the court noted that because Koehn discontinued physical therapy against Dr. Etheredge's advice and thus failed to mitigate her damages, her recovery of medical expenses was limited to the particular expenses related to specific therapies.

The trial court's judgment reduced Koehn's special damages awards to $5,556.58 for medical expenses and $166.23 for lost wages, and awarded her $9,500 general damages for injuries related to the accident. Accordingly, on September 16, 2003, Rhodes and USAgencies were cast in judgment for $9,133.69, their pro rata share of Koehn's damages, plus judicial interest. Graves and Economy Fire & Casualty were cast in judgment for $6,089.12, their pro rata share of Koehn's damages, plus judicial interest. Koehn's claims against Rhodes' excess insurer and her U/M carrier were dismissed at her cost.

After trial, Koehn moved the court to tax expenses as costs incurred in connection with the suit. Economy Fire & Casualty's counsel opposed the motion, arguing that because Koehn did not prevail against Safeway, the excess insurer, it should not bear the expenses of Koehn's prosecution of suit against Safeway, such as the cost of filing a supplemental and amending petition ($330.00) and subpoena costs, and that those costs should be taxed to Koehn instead. Economy Fire & Casualty also argued that Dr. Etheredge's expert witness fee of $750.00 was "excessive" and that the trial court should reduce it. After a contradictory hearing, the trial court excluded some of the costs associated with Koehn's claims against Safeway and Geico. The judgment taxing costs in accordance with the trial court's instructions from the bench was entered and signed on October 8, 2003.

Koehn has appealed both judgments.

Discussion

In two assignments of error, Koehn contests, (i) the ruling of the trial court discounting the extent of her injury after September 11, 2001, for her failure to continue physical therapy, and (ii) the ruling awarding $9,500 in general damages for her injury. The trial court made the following determination:

Ms. Koehn saw Dr. Lee Etheredge beginning on August 22, 2001. From August 24 through September 11, 2001, Ms.

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Cite This Page — Counsel Stack

Bluebook (online)
882 So. 2d 757, 2004 WL 2125792, Counsel Stack Legal Research, https://law.counselstack.com/opinion/koehn-v-rhodes-lactapp-2004.