Mendez v. American Fire & Indemnity Co.

468 So. 2d 1272, 1985 La. App. LEXIS 9388
CourtLouisiana Court of Appeal
DecidedApril 16, 1985
DocketNo. 84 CA 0122
StatusPublished
Cited by4 cases

This text of 468 So. 2d 1272 (Mendez v. American Fire & Indemnity 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
Mendez v. American Fire & Indemnity Co., 468 So. 2d 1272, 1985 La. App. LEXIS 9388 (La. Ct. App. 1985).

Opinions

SAVOIE, Judge.

This case arises from an automobile accident which occurred on November 21, 1981. Plaintiffs, Katherine Mendez and her three children, were injured in the accident. Defendant, American Fire and Indemnity Company, appeals only the amount of damages awarded to Katherine Mendez. We amend and affirm.

The accident occurred when a vehicle driven by Theresa Bailey ran a stop sign and struck the vehicle driven by Katherine Mendez. At trial, liability was stipulated to be in favor of plaintiffs, leaving only the determination of quantum.

Katherine and her three children, Jonathan, Tony and Nicholas, were in the car at the time of the accident. All were injured, but only Katherine suffered serious injury. She was taken to the hospital where she remained for four days. Katherine sustained a concussion, a whiplash, injured right knee, and bruises on her arms, back, right leg and stomach. After being released from the hospital, Katherine remained at home in bed for approximately three weeks.

[1273]*1273After the evidence was presented at trial on June 9, 1983, the trial court awarded Katherine $20,000.00 for physical pain and suffering, $4,000.00 for mental pain and suffering, and $3,583.30 for past and future medical expenses. The children were also awarded damages for their injuries. American Fire appeals only the amount awarded to Katherine for her physical and mental pain and suffering.

ASSIGNMENTS OF ERROR

American Fire alleges the trial court abused its discretion in awarding Katherine Mendez:

1. $20,000.00 for physical pain and suffering; and
2. $4,000.00 for mental pain and suffering.

I.

American Fire argues that the trial court’s award of $20,000.00 to Katherine Mendez for physical pain and suffering was excessive and should, therefore, be reduced.

Most of the testimony presented regarding Katherine’s physical condition was elicited from four medical witnesses: Laughlin Winkler, M.D., internist; Robert Stuart, M.D., radiologist; Luis Matta, M.D., orthopedist; and Charles Gideon, chiropractor. The following is a brief summary of their testimony.

Dr. Winkler treated Katherine when she arrived at the hospital on November 21, 1981. Dr. Winkler continued as treating physician until Katherine asked to be discharged on January 29, 1982. On that date, Katherine’s only complaint was an occasional flare-up of her neck. She' mentioned nothing about any problems with her back. Katherine informed Dr. Winkler she had stopped going to physical therapy after only two weeks. At the time of the discharge, Dr. Winkler testified Katherine had sustained a cervical strain which Dr. Winkler expected to be resolved within three to six months.

After reviewing the x-rays taken while Katherine was in the hospital and those taken by the chiropractor, Dr. Stuart testified all of the vertebrae in the cervical, thoracic and lumbar regions were normal. Dr. Stuart found no indication of the sub-luxations which the chiropractor had found to be the cause of Katherine’s problems. In fact, Dr. Stuart stated the chiropractor had not taken x-rays from a sufficient number of different angles for any one to reach a conclusive diagnosis. Dr. Stuart did find one of Dr. Gideon’s x-rays was mislabeled because it showed Katherine’s heart on the right rather than the left side of her chest.

On June 6, 1983, Dr. Matta conducted a complete examination of Katherine, including taking a new set of x-rays. Dr. Matta testified he did not elicit any significant findings during the approved orthopedic method of examination to justify any allegations of residual immobility caused by the automobile accident. Dr. Matta also testified that the x-rays he took revealed no abnormalities, particularly no subluxations. He also examined the x-rays taken by Dr. Gideon and found them to be within normal limits. Dr. Matta concluded from his examination that Katherine suffered no residual injuries as a result of the accident.

Dr. Gideon testified that Katherine first went to his office on April 9, 1982, complaining of pain in her neck, left shoulder, middle and lower back, headaches, and dizziness. After completing his initial examination which included x-rays, Dr. Gideon concluded that Katherine’s problems were caused by a unilateral subluxation of the C — 1 vertebra. He defined a subluxation as an incomplete or partial dislocation. He also found that most of the thoracic and lumbar vertebrae were out of position. At the time of trial, Dr. Gideon was unable to say how much longer his treatment of Katherine would have to continue.

The record reflects that the three medical doctors testified Katherine suffered no residual injuries from the accident. Neither Dr. Stuart nor Dr. Matta, after examining x-rays taken within a few days of the accident, approximately four months later and more than one and one-half years after the accident, found any injury to Katherine’s spine. Only Dr. Gideon found that [1274]*1274Katherine suffered a spinal injury which resulted in residual difficulty. Dr. Gideon ascribed this residual difficulty to the accident on the basis of the history given him by Katherine. Apparently, the trial court accepted Dr. Gideon’s testimony in its entirety and disregarded that of the three medical doctors.

The trial court in its reasons for judgment found that Katherine was unconscious for twenty-four hours following the accident. The only support for this is Dr. Gideon’s recitation of Katherine’s history as she allegedly related it to him. This clearly was hearsay testimony. The medical records introduced at trial included the notes of the nurses who cared for Katherine that day. The notes reveal that Katherine, while somewhat dazed, was able to speak and knew where she was. Dr. Winkler also testified that Katherine complained of her various injuries and was able to sit up during the initial examination. Clearly, a person who is unconscious would not be able to perform such acts.

The trial court has broad discretion in setting the amount of general damages. La.C.C. art. 1934(3). The standards for reviewing general damage awards to be followed by appellate courts were set out by the Louisiana Supreme Court in Reck v. Stevens, 373 So.2d 498 (La.1979), and Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). In Coco, the Court stated:

“We do reemphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.” (Citations omitted.) 341 So.2d at 335.

In Reck, the Court stated:

“Thus, the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s ‘much discretion,’ La.Civ.C. art. 1934(3) in the award of damages.

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Bluebook (online)
468 So. 2d 1272, 1985 La. App. LEXIS 9388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mendez-v-american-fire-indemnity-co-lactapp-1985.