MacK v. Wiley

991 So. 2d 479, 2008 WL 1930538
CourtLouisiana Court of Appeal
DecidedMay 2, 2008
Docket2007 CA 2344
StatusPublished
Cited by32 cases

This text of 991 So. 2d 479 (MacK v. Wiley) 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. Wiley, 991 So. 2d 479, 2008 WL 1930538 (La. Ct. App. 2008).

Opinion

991 So.2d 479 (2008)

Clinton MACK and Effie Mack
v.
Dorothy WILEY and American National Property and Casualty Company.

No. 2007 CA 2344.

Court of Appeal of Louisiana, First Circuit.

May 2, 2008.

*483 Vincent L. Bowers, New Orleans, LA, for Plaintiffs-Appellants, Clinton and Effie Mack.

Arthur H. Andrews, Baton Rouge, LA, for Defendants-Appellees, Dorothy Wiley and ANPAC Louisiana Insurance Company.

Before CARTER, C.J., PETTIGREW, and WELCH, JJ.

CARTER, C.J.

Plaintiffs-appellants, Clinton and Effie Mack (the Macks), appeal a trial court judgment on a jury verdict in this personal injury case. Defendants-appellees, Dorothy Wiley and ANPAC Louisiana Insurance Company (ANPAC), answered the appeal.[1] For the following reasons, we vacate one of the judgments in the record, amend the trial court judgment reflecting the jury verdict, and affirm as amended.

FACTS

This action arises from a motor vehicle accident that occurred on May 20, 2004, in East Baton Rouge Parish, Louisiana. Mr. Mack was driving his automobile westbound in the curbside lane on Louisiana Highway 64 near a cross street in Zachary that was controlled by a signal light and which allowed access to stores on both sides of the highway. Mr. Mack had a green light as he approached the cross street. At the same time, Ms. Wiley was driving her pickup truck in an easterly direction at the same location. Ms. Wiley also had a green light, but she had stopped in the inside eastbound lane of travel to wait for the traffic to clear so that she could make a left-turn at the cross street. After waiting for an opportunity to turn, Ms. Wiley began her left-turn, but then had to stop again because a red pickup truck suddenly darted in front of her path. The red pickup truck had been sitting and waiting to make a left turn on the opposite side of the highway, facing Ms. Wiley, when the driver apparently decided to go straight through the intersection instead of making the turn. After the red pickup truck cleared from Ms. Wiley's path, she immediately saw Mr. Mack's automobile fast approaching the intersection. Ms. Wiley hesitated briefly and then attempted to finish her left-turn across the highway, believing that Mr. Mack's vehicle would either change lanes or stop. Unfortunately, Mr. Mack's automobile struck the right side of the back rear tire area of Ms. Wiley's pickup truck before Ms. Wiley cleared Mr. Mack's lane of travel. Mr. Mack denied seeing Ms. Wiley's pickup truck until she was directly in front of his vehicle in his lane of travel and it was too late to avoid the collision. Mr. Mack also denied seeing the red pickup truck and he estimated his speed was approximately 40 miles-per-hour in the 45 mile-per-hour *484 zone. The force of the collision knocked the back rear tire off of Ms. Wiley's pickup truck and forced her truck to collide with another vehicle that was stopped at the red light exiting the shopping area that Ms. Wiley was attempting to enter.[2]

The collision caused Mr. Mack's left knee to strike the dashboard of his vehicle. Additionally, Mr. Mack experienced the onset of back and neck pain and he was transported in an ambulance to the hospital emergency room, secured on a backboard with a cervical collar. Ms. Mack was called and she met her husband at the hospital. While in the emergency room, the 71-year-old Mr. Mack was x-rayed, examined, and prescribed pain medication for muscle strain and contusions before being discharged with instructions to rest at home for 2-3 days. He was advised to return for follow up care if his pain did not resolve. Four days later, Mr. Mack went to his family physician, Dr. Bradford J. Smith, because of persistent pain in his left knee. Dr. Smith ordered an x-ray of Mr. Mack's knee and noted a bruise on the knee as well as evidence of degenerative joint disease that was revealed by the x-ray. Because Mr. Mack had never complained of left knee pain before, Dr. Smith referred Mr. Mack to an orthopedic surgeon, Dr. A. Brent Bankston, for further evaluation of the knee injury. Additionally, Mr. Mack sought treatment for two months with a chiropractor, Dr. Michael J. Goff, for his neck and back strain that eventually resolved.

Dr. Bankston first saw Mr. Mack on June 4, 2004, when Mr. Mack described the accident and stated that he had only experienced occasional soreness and stiffness in his left knee before the accident and that he had never sought treatment for left knee pain prior to the accident. Dr. Bankston diagnosed Mr. Mack with an aggravation of a pre-existing degenerative arthritic condition in all three compartments of his left knee joint, as well as a deep knee bruise. Dr. Bankston recommended conservative treatment combining anti-inflammatory medication, knee exercises, and time for the pain to resolve back to Mr. Mack's pre-accident level. Dr. Bankston advised Mr. Mack that he may eventually need injections or a total knee replacement because of the significant arthritic condition in his knee. Mr. Mack was familiar with knee replacement surgery because he had his right knee successfully replaced fourteen years earlier in 1990. Approximately one month after his initial visit with Dr. Bankston and six weeks after the accident, on July 6, 2004, Mr. Mack returned to Dr. Bankston and requested that the previously recommended knee replacement surgery be performed as soon as possible, because he was in tremendous pain. Dr. Bankston agreed that the surgery was medically necessary, and the surgery was scheduled for July 21, 2004.

After the surgery, Mr. Mack remained hospitalized for three days and he then stayed in a rehabilitation facility for ten more days before returning home. Mr. Mack continued outpatient physical therapy for three months until he was discharged on October 25, 2004. Throughout the entire time of Mr. Mack's accident and convalescence, he was not able to work at his full-time job as a school bus driver with First Student, Inc. During the following summer, in 2005, Mr. Mack attempted to return to work, but could not pass the physical required of all school bus drivers.[3] He sought additional treatment from another *485 orthopedic surgeon, Dr. Francis Allen Johnston, on May 31, 2005, for some residual left knee pain. Dr. Johnston ordered x-rays that revealed a good alignment in Mr. Mack's knee and he opined that Mr. Mack's mild pain was normal progress for his stage of recovery almost one year after the knee replacement surgery. Dr. Johnston saw Mr. Mack again eight months later, on January 30, 2006, and Mr. Mack was doing much better with a 20-25% permanent impairment of his left knee. Shortly thereafter, Mr. Mack was again driving a school bus, but for a different employer and only part time.

Mr. Mack and his wife filed suit for damages against Ms. Wiley and her liability insurer, ANPAC, on September 9, 2004. Following a jury trial on May 22-24, 2007, the jury returned a verdict in favor of the Macks, awarding Mr. Mack $32,000.00 for past medical expenses, $7,500.00 for pain and suffering, $7,500.00 for mental anguish, and $7,500.00 for lost wages, and awarding Ms. Mack $7,500.00 for loss of consortium. The jury allocated fault for the accident as follows: 70% to Ms. Wiley, 20% to the unknown driver of the red pickup truck, and 10% to Mr. Mack. Thus, the trial court rendered a final judgment on July 27, 2007, reflecting the jury's verdict and reducing the amounts awarded in accordance with the jury's allocation of fault for the total sum of $38,150.00 to Mr. Mack and $5,250.00 to Ms. Mack, with the costs to be determined by a later rule.

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Cite This Page — Counsel Stack

Bluebook (online)
991 So. 2d 479, 2008 WL 1930538, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mack-v-wiley-lactapp-2008.