Misewicz v. Gamso

860 So. 2d 119, 2003 WL 22501050
CourtLouisiana Court of Appeal
DecidedOctober 22, 2003
Docket2003-CA-1052
StatusPublished
Cited by1 cases

This text of 860 So. 2d 119 (Misewicz v. Gamso) 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
Misewicz v. Gamso, 860 So. 2d 119, 2003 WL 22501050 (La. Ct. App. 2003).

Opinion

860 So.2d 119 (2003)

Leo MISEWICZ
v.
Dorene G. GAMSO, American Deposit Insurance Company and Government Employees Insurance Company.

No. 2003-CA-1052.

Court of Appeal of Louisiana, Fourth Circuit.

October 22, 2003.

*120 Jeffrey Perigoni, Law Office of Jeffrey Perigoni, Chalmette, LA, Counsel for Plaintiff/Appellee, Leo Misewicz.

Wayne R. Maldonado, Ginger K. DeForest, Ungarino & Eckert L.L.C., Metairie, LA, Counsel for Defendant/Appellant, American Deposit Insurance, Co.

Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge MAX N. TOBIAS, JR., Judge LEON A. CANNIZZARO, JR.

LEON A. CANNIZZARO, JR., Judge.

This case involves an appeal by American Deposit Insurance Company ("American") from a judgment awarding the plaintiff, Leo Misewicz, damages in connection with an automobile accident. American is appealing the amount of damages awarded for lost wages and the assignment of all of the fault in the accident to its insured, Doreen Gamso.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Mr. Misewicz was traveling eastbound in the left lane of Louisiana Highway 39, which is also known as East Judge Perez Drive ("Judge Perez"), in his Honda Accord (the "Accord"). He was approaching the intersection of Judge Perez and Tournefort Street when he saw a car, which was towing a trailer, cross the westbound lanes of traffic of Judge Perez and enter the median. When he saw that the trailer was blocking the innermost westbound lane of Judge Perez, Mr. Misewicz slowed down, because he was not sure whether the driver of the car in the median would wait for a break in the traffic to turn left or would pull out in front of him and make a left turn. Apparently, when *121 the driver of the car in the median saw Mr. Misewicz slow down, the driver accelerated and began to complete the left turn in front of Mr. Misewicz's Accord. Mr. Misewicz then stopped the Accord in the eastbound left lane of Judge Perez to avoid hitting the car as it completed the left turn in front of his Accord. When Mr. Misewicz stopped his Accord, a Ford Expedition (the "Expedition") driven by Ms. Gamso hit the Accord from the rear, causing damage to both vehicles.

The car towing the trailer continued to proceed down Judge Perez, and the driver was never identified. The first police officer to arrive at the scene of the accident was either a plain clothes officer or an off-duty officer, who was identified as a police officer by the badge that was hanging from his waist and the blue lights in his unmarked car. The officer told Mr. Misewicz and Ms. Gamso to move their vehicles out of the traffic lanes of Judge Perez, and the officer called a traffic accident investigator to the scene.

St. Bernard Parish Deputy Dick A. Beebe investigated the accident. The Accord and the Expedition had been moved out of the roadway, but Deputy Beebe did not note that there were any skid marks where the accident occurred. After speaking with both Mr. Misewicz and Ms. Gamso, Deputy Beebe issued a ticket to Ms. Gamso for following another vehicle too closely in violation of La. R.S. 32:81(A). She pled guilty to the offense.

Mr. Misewicz told Deputy Bebee that he was not injured. Two days after the accident, however, Mr. Misewicz awoke with a very painful neck, and he went to his family doctor, Dr. Andres G. Pedroza. Mr. Misewicz complained of pain and stiffness in his neck and headaches that occurred when he bent over or raised his arms above his head. Mr. Misewicz told Dr. Pedroza that he had been involved in a rear end collision in which he was wearing a seat belt and that his head had snapped forward when his car was hit from the rear. Dr. Pedroza examined Mr. Misewicz and determined that his headaches were secondary to acute muscle strain in his neck and back resulting from the automobile accident.

Dr. Pedroza referred Mr. Misewicz to Dr. Gary Carroll for x-rays. Dr. Carroll's report showed that Mr. Misewicz had physical evidence of acute muscular injury. After Dr. Pedroza received the radiologist's report, he prescribed physical therapy three times a week in addition to rest, hot compresses, muscle relaxants, and analgesics that he had already prescribed for Mr. Misewicz.

Because The Health Care Center of St. Bernard (the "Center") was more conveniently located than Dr. Pedroza's office, Mr. Misewicz stopped seeing Dr. Pedroza and began treatment with Dr. Janis A. Walder at the Center. Dr. Walder diagnosed Mr. Misewicz's condition as acute muscle strain, and she prescribed physical therapy as well as medication. Mr. Misewicz saw Dr. Walder on several occasions during his treatment. He then began to see Dr. Michael T. Howard, who also worked at the Center.

Dr. Howard thought that one of Mr. Misewicz's cervical disks might have been involved in his injuries, and he prescribed additional medication and continued physical therapy. Dr. Howard continued to treat Mr. Misewicz, and he ordered that an MRI be performed on Mr. Misewicz. The MRI showed some abnormalities including a minimal bulge of one of the disks in the spinal column in his neck.

Dr. Howard referred Mr. Misewicz to Dr. Salvador E. Murra for a neurological consultation. Dr. Murra performed a nerve conduction study that revealed a *122 chronic disk herniation on the left side of one of the bones in the spinal column in Mr. Misewicz's neck. Dr. Murra saw Mr. Misewicz for several months during which he added additional drugs and a soft cervical collar to Mr. Misewicz's treatment regimen.

When Mr. Misewicz returned to Dr. Howard, the doctor noted that Mr. Misewicz continued to have a reduction in motor strength. Dr. Howard also advised Mr. Misewicz that he could not help him improve any further, and he discharged Mr. Misewicz with instructions for him to return to Dr. Murra.

When Mr. Misewicz returned to Dr. Murra, he complained of tingling sensations in his neck and in the area above his left collar bone that radiated into his left shoulder. He also continued to suffer from headaches. Dr. Murra instructed Mr. Misewicz to continue taking the medications he had prescribed for him and to continue wearing the soft cervical collar. Approximately six months later, Mr. Misewicz again saw Dr. Murra, who advised Mr. Misewicz that he could return to work and that his condition would continue to improve.

Approximately three months after he was authorized to return to work, Mr. Misewicz found employment. Mr. Misewicz testified that he had been instructed not to return to work for an indeterminate amount of time by his doctors. The Center's records do not reflect that he was ever authorized to return to work, but he was permitted to return to school almost six months after the accident. A year and a half after the accident, Mr. Misewicz was allowed to return to work by Dr. Murra.

Prior to the accident Mr. Misewicz had been working full time as an air conditioning technician. He had just returned to school the week before the accident. He testified that he had arranged his class schedule so that he would not have any classes on Monday, Wednesday, and Friday so that he could continue to work three days a week.

Mr. Misewicz filed suit against Ms. Gamso and her insurer, American, and his uninsured motorist carrier, Government Employees Insurance Company ("GEICO"). GEICO was dismissed from the case prior to the trial. After a bench trial before the judge, the court rendered judgment against American and in favor of Mr. Misewicz in the amount of $49,941.63, and Ms. Gamso was dismissed from the case.

In giving reasons for judgment, the trial court stated that Ms.

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Bluebook (online)
860 So. 2d 119, 2003 WL 22501050, Counsel Stack Legal Research, https://law.counselstack.com/opinion/misewicz-v-gamso-lactapp-2003.