Mack v. Imperial Fire & Casualty Insurance Co.

167 So. 3d 691, 2014 La. App. LEXIS 2693, 2014 WL 5793816
CourtLouisiana Court of Appeal
DecidedNovember 7, 2014
DocketNo. 2014 CA 0597
StatusPublished
Cited by1 cases

This text of 167 So. 3d 691 (Mack v. Imperial Fire & Casualty Insurance 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
Mack v. Imperial Fire & Casualty Insurance Co., 167 So. 3d 691, 2014 La. App. LEXIS 2693, 2014 WL 5793816 (La. Ct. App. 2014).

Opinion

DRAKE, J.

Fin this action for liability and damages arising out of an automobile accident, the plaintiff appeals a judgment of the district court finding the defendants at fault and awarding general and special damages to the plaintiff. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff/Appellant, Debra Mack, filed suit against Jerry Labouve, David Pitre,1 and their insurer, Imperial Fire and Casualty Insurance Company, for injuries sustained in an accident on January 13, 2010. The petition alleged that Ms. Mack was a guest passenger in a taxicab driven by Mr. Labouve. As Mr. Labouve drove Ms. Mack home to her residence located on [694]*694Southdown Mandalay Road in Houma, Louisiana, an oncoming vehicle in the opposite lane approached the taxicab as it neared a right-hand curb. As the oncoming vehicle passed the taxicab, the side-view mirror on the passenger side of the taxicab struck a trash can that had been partially placed in the roadway. As a result of the impact with the trash can, the side-view mirror struck the front passenger window, causing the glass to break. A shard of glass from the window struck Ms. Mack in her eye as she was sitting in the rear of the cab on the driver’s side. Following impact with the trash can, Mr. La-bouve maintained control of his vehicle and did not swerve, brake, or leave his lane of travel.

Mr. Labouve continued driving a short distance on Southdown Mandalay Road and dropped Ms. Mack off at her residence. Not long after being dropped off, Ms. Mack contacted Mr. Labouve through the taxicab dispatch and requested that he transport her to Chabert Medical Center to receive medical attention for her eye. At Chabert, Ms. Mack was diagnosed with a corneal abrasion. Medical staff [ ¡¡provided Ms. Mack with prescription eye drops and released her. Two days following the accident, Ms. Mack followed up on her eye injury at Chabert.

Two months later, on March 15, 2010, Ms. Mack complained of neck, lower back, and head injuries to her treating physician, Dr. John D. Olson. Dr. Olson noted that Ms. Mack’s complaints were aggravations of pre-existing neck and back injuries. During his treatment of her, which began two months following the accident and continued for approximately two years, until February 2012, Dr. Olson treated Ms. Mack only with pain medication.

On January 14, 2011, Ms. Mack filed a petition for damages, claiming damages for loss of past, present, and future wages, past and future medical expenses, and past and future pain and suffering. A bench trial was held in this matter on November 7, 2013. Following trial, the district court rendered judgment on December 11, 2013, in favor of Ms. Mack and against the defendants. The district court held that Ms. Mack suffered a mild corneal abrasion, which was caused by the accident occurring on January 13, 2010. The district court awarded Ms. Mack general damages in the amount of $500.00, and special damages in the amount of $355.91. The plaintiff now appeals the quantum portion of the judgment dealing with the injuries to her eye, neck, back, and head.

LAW AND DISCUSSION

On appeal, Ms. Mack assigns three errors to the judgment of the district court. All three errors involve the calculation of the damages awarded and the credibility and weight given to the testimony of witnesses.

Assignment of Error 3

Ms. Mack contends that the district court committed error in failing to award her damages for her back and neck injuries. Two months following the accident, Ms. Mack began treatment for two years, until February 2012, for back, neck, and head injuries allegedly suffered as a result of this accident. Dr. Olson was the only 14expert who testified at trial regarding these injuries. The defendants offered no expert medical testimony to rebut Dr. Olson’s testimony and relied solely upon the testimony of the taxicab driver, Mr. La-bouve. Because the defendants presented no credible medical evidence, Ms. Mack argues that she should be entitled to damages for these injuries.

In order to reverse a factual determination by the trier of fact, the appellate court must apply a two-part test: (1) [695]*695the appellate court must find that a reasonable factual basis does not exist in the record for the finding; and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). Further, when factual findings are based upon determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the trier of fact’s findings. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Barnett v. Saizon, 2008-0336 (La.App. 1 Cir. 9/23/08), 994 So.2d 668, 672. Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 883.

At trial, Ms. Mack testified that the taxicab hit a mailbox. She stated that she was not wearing a seatbelt when the accident occurred. She alleged that the cab driver, Mr. Labouve, had turned around in his seat to talk to her when he hit the mailbox. She claims he slammed on his brakes, which caused her head and neck to move forward and hit the back of the driver’s seat. She testified that she twisted her back when she hit the seat, was jerked back, and also hit the back of her head on the window. She testified that the rear passenger window was shattered, and as a result, glass got into her eye.

The cab driver, Mr. Labouve, testified that Ms. Mack was seated behind him on the driver’s side of the vehicle. He stated that at no point did he turn around in |shis seat to talk' to Ms. Mack. Mr. Labouve testified that the side-view mirror on the passenger side of the vehicle made contact with a trash can that was partially in the roadway, not a mailbox. As a result, the side-view mirror folded in and shattered the front passenger window, not the rear passenger window. Mr. Labouve contends that he maintained speed and control of his vehicle and did not slam on his brakes or swerve in or out of his lane of travel at the moment of the accident.

The record indicates that in addition to the accident at issue in this case, Ms. Mack had several previous incidents, which caused and contributed to her numerous back and neck injuries, including cervical nerve root damage and lumbar disk and muscle damage. Dr. Olson was the only expert who testified at trial regarding these injuries. Years prior, Ms. Mack suffered a gunshot wound, which prevented Dr. Olson from performing an MRI to image the extent of her injuries. Additionally, Dr. Olson also treated her for injuries suffered in a motor vehicle accident in August 2006. With regards to her injuries suffered as a result of the accident at issue in this case, Dr. Olson testified how Ms. Mack’s back and neck issues were causally related to the accident:

I would say that what we’re dealing with is aggravation of the preexisting condition involving the neck and back. I personally think the lady’s got damaged disks. They may have been further damaged as a result of this accident, but there’s no way to adequately answer, and I don’t think that her neurological examination showed a C change from the previous accident, so I don’t think we’re dealing with a new disk, but I could be wrong. You don’t know because you really can’t image the [sic] ...

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167 So. 3d 691, 2014 La. App. LEXIS 2693, 2014 WL 5793816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mack-v-imperial-fire-casualty-insurance-co-lactapp-2014.