McCarter v. Sanchez

874 So. 2d 918, 2003 La.App. 4 Cir. 0935, 2004 La. App. LEXIS 1128, 2004 WL 943918
CourtLouisiana Court of Appeal
DecidedApril 28, 2004
DocketNo. 2003-CA-0935
StatusPublished

This text of 874 So. 2d 918 (McCarter v. Sanchez) 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
McCarter v. Sanchez, 874 So. 2d 918, 2003 La.App. 4 Cir. 0935, 2004 La. App. LEXIS 1128, 2004 WL 943918 (La. Ct. App. 2004).

Opinion

_[iLEON A. CANNIZZARO, JR., Judge.

This case arises out of an automobile accident. Continental Insurance Company, a defendant in this case, is appealing the trial court’s judgment in favor of Gloria McCarter, a plaintiff in this case. Mrs. McCarter is also appealing that part of the trial court’s judgment that makes her award subject to a credit for the amount already paid to Mrs. McCarter by another insurance company.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Mrs. McCarter was driving her car in a safe and lawful manner, and her two minor children were passengers in the car. A car driven by Mary Sanchez struck Mrs. McCarter’s car from the rear, and as a result of the collision, Mrs. McCarter and [920]*920her children were injured. Mrs. McCarter testified at the trial that when her car was hit, “my legs went numb.” Thereafter, she began to suffer from unrelenting back pain and ultimately discovered that she had a slipped disk in her spine, which she attributed to the injuries she sustained in the accident involving Ms. Sanchez’s car. Additionally, Mrs. McCarter’s children were injured from being jolted when their mother’s ear was hit by Ms. Sanchez’s car.

|2Mrs. McCarter1 sued Ms. Sanchez and Patterson Insurance Company, Ms. Sanchez’s insurer. Continental, Mrs. McCar-ter’s uninsured motorist carrier, was also sued. Ms. Sanchez and Patterson admitted liability in the case, and the claims against them were settled for $9,5002. After a trial on the merits, the trial court awarded Mrs. McCarter damages in the amount of $50,000 but made the award subject to a credit in the amount of $10,000.

Continental is appealing the award of damages on the ground that Mrs. McCar-ter’s back pain and slipped disk were the result of a pre-existing back problem rather than the accident involving Ms. Sanchez. Just sixteen days prior to the accident Mrs. McCarter had been released from the care of Dr. Frank Culicchia, the neurosurgeon who performed surgery to repair a slipped disk in Mrs. McCarter’s back approximately six weeks earlier. When Dr. Culicchia discharged Mrs. McCarter, he reported to Dr. Robert Miles, who was Mrs. McCarter’s primary care physician, that Mrs. McCarter had “no complaints of pain whatsoever” and wanted to return to her full duties at work. Dr. Culicchia further advised Dr. Miles that he had released her from his care and had “not placed any restrictions or limitations upon her.”

A few days after the accident, however, Mrs. McCarter returned to Dr. Culicchia. She told him that she had been involved in an automobile accident and that she had suffered from a return of the numbness that had affected her legs prior to the surgery that he had recently performed. Dr. Culicchia prescribed pain | ¡¡medication and advised Mrs. McCarter to return to his office if her condition did not improve.

Mrs. McCarter continued to have progressive back pain for approximately two and one half years before she again visited a physician. Mrs. McCarter, however, periodically consulted with Dr. Miles by telephone, and over the course of approximately two and one half years, he prescribed prescription strength ibuprofen for her more than twenty times by calling a pharmacy to have the prescriptions filled.

At the trial Mrs. McCarter explained her failure to visit a physician for approximately two and one half years after she last visited Dr. Culicchia. Mrs. McCarter testified that because she was the caregiver for her mother, who had terminal cancer, for a number of months after the accident, she would have been unable to have back surgery at that time. Additionally, she testified that because she had a high tolerance for pain and was afraid of surgery, she decided to manage her pain with medications and exercise. Mr. McCarter also testified at the trial that Mrs. McCarter had a high tolerance for pain.

[921]*921Eventually, Mrs. McCarter did return to see Dr. Miles, because her back pain continued to increase. Six months later Dr. Miles determined that Ms. McCarter should have an MRI3 examination of her back, and the MRI showed that she had a recurrent slipped disk. Dr. Miles then referred Mrs. McCarter to Dr. John Lee Moss, who confirmed that she suffered from a recurrent slipped disk and who advised her to treat the disk problem conservatively with medication and exercise rather than surgically.

|4Mrs. McCarter claimed that there were no intervening acts that could have caused or contributed to her recurrent disk problem other than the accident. Alternatively, Continental claimed that there is no evidence that the accident caused Mrs. McCarter’s recurrent disk problem. The trial court held in favor of Mrs. McCarter and awarded her $50,000 in damages, subject to a $10,000 credit for money already paid by Ms. Sanchez’s insurer. Continental is appealing the trial court judgment, and Mrs. McCarter is appealing that portion of the judgment that made her award subject to the $10,000 credit.

DISCUSSION

Applicable Law

In Rosell v. ESCO, 549 So.2d 840 (La.1989), the Louisiana Supreme Court discussed the scope of the appellate court’s review of a trial court’s findings of fact as follows:

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.... Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong....
When findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.

| Jd. at 844. See also Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880 (La.1993); Harvey v. Cole, 2000-1849 (La.App. 4 Cir. 1/23/02), 808 So.2d 771.

With respect to issues of law, however, this Court is required to determine whether the trial court applied the law appropriately. In Glass v. Alton Ochsner Medical Foundation, 2002-0412, p. 3 (La.App. 4 Cir. 11/6/02), 832 So.2d 403, 405, writ denied, 2002-2977, 2002-3018 (La.3/14/03), 839 So.2d 36, 839 So.2d 37, this Court stated that “[t]he standard of review of appellate courts in reviewing a question of law is simply whether the court’s interpretative decision is legally correct.” Additionally, if a trial court’s decision is based on an erroneous application of the law, the decision is not entitled to deference by the appellate court. Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1071-1072 (La.1983). See also Sander v. Brousseau, 2000-0098, p. 4 (La.App. 4 Cir. 10/4/00), 772 So.2d 709, 711, where this Court stated that “[appellate review of a question of law involves a determination of whether the lower court’s interpretive decision is legally correct.”

[922]*922Assignments of Error

Continental has made seven assignments of error.

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Bluebook (online)
874 So. 2d 918, 2003 La.App. 4 Cir. 0935, 2004 La. App. LEXIS 1128, 2004 WL 943918, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccarter-v-sanchez-lactapp-2004.