Methvin v. Ferguson

796 So. 2d 712, 2001 WL 1132027
CourtLouisiana Court of Appeal
DecidedSeptember 26, 2001
Docket35,138-CA
StatusPublished
Cited by11 cases

This text of 796 So. 2d 712 (Methvin v. Ferguson) 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
Methvin v. Ferguson, 796 So. 2d 712, 2001 WL 1132027 (La. Ct. App. 2001).

Opinion

796 So.2d 712 (2001)

Pamela Plante METHVIN and A. Lamar Methvin, Individually and as Husband and Wife, Plaintiffs-Appellees,
v.
Alvin Ray FERGUSON, Allstate Insurance Company and State Farm Mutual Automobile Insurance Company, Defendants-Appellants.

No. 35,138-CA.

Court of Appeal of Louisiana, Second Circuit.

September 26, 2001.

*714 Casten & Pearce by Alan T. Seabaugh, Shreveport, Counsel for Appellant, State Farm Mutual Automobile Insurance Company.

Law Offices of Jack M. Bailey, Jr. by J. Allen Cooper, Jr., Shreveport, Counsel for Appellees, Pamela Plante Methvin & Lamar Methvin.

Bruce A. Bannon, Shreveport, Counsel for Appellee, Allstate Insurance Company.

Before WILLIAMS, PEATROSS & DREW, JJ.

PEATROSS, J.

This appeal arises out of a personal injury suit following an automobile accident on Jewella Avenue in Shreveport. Plaintiffs, Pamela Plante Methvin, vehicle was rearended by a vehicle driven by Defendant, Alvin Ray Ferguson. Mrs. Methvin was injured and she and her husband sued Mr. Ferguson and his insurer, Allstate Insurance Company ("Allstate"). Allstate's policy limit was $10,000 per person; therefore, the Methvins also named as a defendant Mrs. Methvin's uninsured/underinsured carrier, State Farm Mutual Automotive Insurance Company ("State Farm"). State Farm filed a cross-claim against Mr. Ferguson and Allstate for medical expenses it had already paid on behalf of Mrs. Methvin.

The parties stipulated that Mr. Ferguson was 100 percent at fault in the accident; therefore, the only issues for trial were damages and quantum. After a bench trial, on July 25, 2000, the trial court rendered judgment in favor of Mrs. Methvin and against Allstate in the amount of $7,061, plus legal interest, and in favor of State Farm in the amount of $2,939, plus legal interest. Judgment was also rendered in favor of Mrs. Methvin and against *715 State Farm in the amount of $13,670.67, plus legal interest and court costs, and in favor of Mr. Methvin and against Allstate (consortium claim) in the amount of $4,000, plus legal interest and court costs. State Farm appeals. For the reasons stated herein, the judgment of the trial court is affirmed.

PROCEDURAL BACKGROUND

The following post-trial proceedings in this case are relevant to this appeal. On August 3, 2000, Allstate filed a Motion for New Trial or Alternative Motion to Amend the Judgment. The basis for Allstate's motion was that the original judgment cast Allstate with an amount in excess of its $10,000 policy limit. The excess judgment cast against Allstate is found in Mr. Methvin's $4,000 award for loss of consortium, which should have been cast against State Farm as the underinsurer of Mrs. Methvin. There was no supporting memorandum, however, and the motion was not served on any party and was not set for argument; therefore, State Farm questioned whether the motion was properly filed and proceeded to file its petition for appeal on August 24, 2000. Further, since no order for setting a hearing was filed with Allstate's motion for new trial, the trial court set a return date of October 23, 2000, for the appeal taken by State Farm. On September 29, 2000, however, Allstate presented an ex parte order requesting that the Motion for New Trial or Alternative Motion to Amend the Judgment be set for hearing. The trial court set the motion for hearing on October 16, 2000; however, the case was not docketed for hearing or submission.

Meanwhile, State Farm's appeal was lodged with this court and the Methvins filed (with this court) a motion to remand the proceedings because Allstate's Motion for New Trial or Alternative Motion to Amend the Judgment was still pending making the appeal premature. On December 7, 2000, a panel of this court agreed and dismissed the appeal as premature due to the outstanding motion for new trial. On January 24, 2001, the trial court entered judgment denying Allstate's Motion for New Trial or Alternative Motion to Amend the Judgment. Counsel for State Farm claims that he never received a copy of this judgment; and, because he was unaware of the denial of the Motion for New Trial or Alternative Motion for Amended Judgment, on January 29, 2001, he presented to the trial court an Amended Judgment, prepared by him and approved by all parties. The Amended Judgment redistributes the award between the defendants, casting State Farm, instead of Allstate, with the $4,000 loss of consortium award. State Farm then filed an appeal from the Amended Judgment. According to State Farm's counsel, he did not become aware of the denial of Allstate's Motion for New Trial or Alternative Motion for Amended Judgment until he was preparing the appeal from the January 29, 2001 Amended Judgment.

The judgment from which the instant appeal was taken, therefore, is the Amended Judgment of January 29, 2001. On May 3, 2001, however, this court entered an order instructing the parties to address the validity of the Amended Judgment and, in the event the Amended Judgment is found to be invalid, whether this appeal should be treated by this court as one from the original judgment. In this regard, we note that the Methvins answered the first appeal (from the original, incorrect judgment) seeking a $4,000 increase in the general damage award against State Farm in the event the amended judgment was found to be invalid and the appeal treated as an appeal from the original judgment. The Methvins reassert this issue in the present appeal in the event this court finds *716 the Amended Judgment to be invalid and considers this appeal as one from the original judgment.

FACTS—DAMAGES AND QUANTUM

As previously stated, Mr. Ferguson's vehicle rear-ended Mrs. Methvin's vehicle and the parties stipulated fault. On June 22, 1998, Mrs. Methvin was stopped in a turning lane when Mr. Ferguson hit her vehicle. The force of the collision propelled her vehicle into the vehicle in front of her and she was knocked unconscious. After regaining consciousness, Mrs. Methvin complained of neck pain, head pain, shoulder problems and nausea. She refused medical treatment at the scene and did not feel it necessary to be transported to the hospital for emergency treatment; however, several days after the accident, Mrs. Methvin sought chiropractic treatment for her injuries from Dr. Kenneth Wojcik. Mrs. Methvin had never suffered any trauma to, or had any problems with, her head, neck or shoulder prior to this accident. She saw Dr. Wojcik for approximately two weeks before she was involved in a second accident. On July 5, 1998, Mrs. Methvin had an incident in the bathroom stall of a McDonald's restaurant when she slid off of a broken toilet seat and fell into the wall, hitting the toilet paper dispenser. The dispute in this case centers around whether this second accident exacerbated her existing injuries and/or created new injuries for which the trial court incorrectly awarded her damages.

After the McDonald's incident, Mrs. Methvin continued treatment with Dr. Wojcik, who referred her to Dr. Lewis Jones, an orthopedic surgeon, whom she saw on one occasion, and Dr. Anil Nanda, a neurosurgeon, whom she saw on three occasions. Dr. Wojcik testified at trial and Drs. Jones' and Nanda's reports were introduced in lieu of their testimony. Mrs. Methvin also underwent a "dynamic motion x-ray" on September 26, 1998, the results of which were introduced at trial. The x-ray showed some ligamentous damage and instability of Mrs. Methvin's neck. Since the x-ray was done several months after each of the accidents, Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
796 So. 2d 712, 2001 WL 1132027, Counsel Stack Legal Research, https://law.counselstack.com/opinion/methvin-v-ferguson-lactapp-2001.