Moreau v. NORTH AMERICAN FIRE AND CAS. INSURANCE COMPANY

806 So. 2d 809, 2001 WL 1651375
CourtLouisiana Court of Appeal
DecidedDecember 26, 2001
Docket01-CA-976
StatusPublished
Cited by4 cases

This text of 806 So. 2d 809 (Moreau v. NORTH AMERICAN FIRE AND CAS. INSURANCE COMPANY) 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
Moreau v. NORTH AMERICAN FIRE AND CAS. INSURANCE COMPANY, 806 So. 2d 809, 2001 WL 1651375 (La. Ct. App. 2001).

Opinion

806 So.2d 809 (2001)

Marilyn MOREAU
v.
NORTH AMERICAN FIRE AND CASUALTY INSURANCE COMPANY and Metry Cab Services, Inc.

No. 01-CA-976.

Court of Appeal of Louisiana, Fifth Circuit.

December 26, 2001.

*811 Frank Brindisi, Kenner, LA, and Stephen C. Juan, New Orleans, LA, Counsels for plaintiff-appellee.

David I. Courcelle, Courcelle & Burkhalter, Metairie, LA, Counsel for Defendants-appellants.

Court composed of Judges THOMAS F. DALEY, MARION F. EDWARDS AND CLARENCE E. McMANUS.

McMANUS, Judge.

In this matter, we affirm a judgment awarding damages in favor of Plaintiff-Appellee, Marilyn Moreau.

STATEMENT OF THE CASE

The matter was instituted with a Petition for Damages filed on November 3, 1999, naming as Defendants, North American Fire and Casualty Insurance Company, Metry Cab Service, Inc., and Julius Miller, the driver of the cab. North American and Metry Cab are the Appellants herein.

All Defendants entered a general denial in answer to the suit, and the matter was set for trial.

A bench trial was held on August 23, 2000. At the beginning of those proceedings, the individual Defendant, Julius Miller, was dismissed from the suit. In addition, insurance coverage was stipulated, the total amount of medical special damages was stipulated, and the authenticity of all exhibits was stipulated.

Written judgment in favor of Moreau was entered on January 10, 2001: Damages were awarded in the amount of $13,812.00, which sum represents $10,000.00 in general damages and the stipulated medical specials of $3,812.00. In addition, expert fees in the amount of $450.00 per hour were awarded for the trial appearance of Moreau's treating physician, Dr. Michael Haydel, D.C.

Defendants North American and Metry Cab timely filed a Motion for Suspensive Appeal, and they now urge the following errors:

1. Whether the Appellee, Marilyn Moreau, was solely negligent in causing the subject accident, or whether Appellee, Marilyn Moreau, contributed to the cause of the subject accident;
2. Whether the Appellee, Marilyn Moreau, failed to mitigate her damages, and whether the subject accident caused her symptoms.

FACTS

The suit arises out of an automobile accident that occurred on December 15, 1998, on David Drive in Kenner. Appellee Moreau and witness Jenny Lemoine were driving in a northerly direction on David Drive, and had just crossed over Airline Highway when the accident occurred. The collision occurred as Defendant Miller entered David Drive from an off-street parking lot.

Lemoine described the accident as follows. She stated that she had been traveling in the median lane as she approached the scene of the accident, and had first noticed Moreau on David Drive a "couple of blocks" back from where the accident occurred. She testified that she approached and passed Moreau, who had *812 been traveling in the sidewalk lane, and was approximately a car length and a half ahead of her when the accident occurred. Lemoine stated that immediately after she had passed Moreau the Metry cab pulled out of a parking lot into the sidewalk lane of the street. She testified that she swerved her car to the left because the cab came out of the lot "so fast" and so suddenly that she was afraid the cab would pull into her lane of traffic. She stated that the accident happened very quickly— the cab hadn't pulled very far into the street, and she heard tires screeching as she was swerving her car.

Moreau's testimony regarding the accident is as follows. She stated that she had been in the sidewalk lane of David Drive when the accident occurred, traveling at about 40 miles per hour. She had first noticed Miller when she was about a half a block away from the cab, when it was still in the parking lot. She stated that Miller was at first slowly inching up to the street, then, suddenly, "jumped" into her lane of traffic. She stated that he had pulled out "real fast" in front of her, and that she "impacted" him before the cab had pulled totally out of the lot. She stated that she hit the left taillight of the cab; at the moment of impact, the right taillight was still in the parking lot. She testified that though she was not sure, she might have been as far as sixty feet away from the cab when she hit the brakes and began to skid; she stated that she could not have avoided the accident.

Miller testified that he checked oncoming traffic before he exited the parking lot, and that the nearest approaching car had been about a half a block away. He testified that after he had pulled out of the parking lot, straightened out and driven about twenty feet, he heard a screeching noise, and the collision occurred. He testified that the cab had been pushed a couple of feet forward by the impact; he testified that once the cab came to a stop he had not moved it before the investigating traffic officer was on the scene. Finally, Miller testified that he had not seen Lemoine's car in the median lane as she swerved to try to avoid him.

The investigating officer, Deputy Bruce Adams, of the Jefferson Parish Sheriff's Office traffic division, estimated that Moreau had been going 45 miles per hour when the accident occurred. He testified that Moreau's tires had left 66 feet of skid marks on the surface of the road as she tried to stop; the testimony is not clear, however, where the skid marks begin and end. Adams testified that he found Miller's cab stopped twenty-one feet from the exit of the parking lot, which indicated, to him, that Miller had completely straightened out in the lane of traffic before the impact occurred. He did admit, however, that the cab might have been pushed some of this distance by the force of the impact.

The photograph of the cab filed into the record, though it seems to be slightly torn on one side, seems to show heavier damage to the left rear bumper and taillight than on the middle to right side of the bumper.

Moreau's testimony regarding her injuries is as follows. She stated that upon impact, she hit the steering wheel then "backed up" into the back of the seat. She testified that as a result of the impact her neck and left shoulder were injured. She stated that she had not sought medical treatment immediately because she thought at first that the pain would disappear. However, the pain was "persistent" and failed to diminish over the next few weeks—she describes the pain as a constant soreness of the left shoulder with accompanying headaches. When the pain did not resolve, within a couple of weeks, she began to treat with Dr. Michael Haydel, *813 a chiropractor. She treated with Dr. Haydel over the course of several months; she stated that it was probably within a month of having been discharged from his care that the headaches began to go away.

Dr. Haydel testified that he had first seen Moreau on January 6, 1999, with complaints of left shoulder pain and headaches. Dr. Haydel's narrative notes that at Moreau's first visit, he noted severe cervical spasms and moderate to severe pain during the cervical motion exam. Dr. Haydel's diagnosis is that Moreau had suffered a Cervical IVD syndrome; Brachial Plexus Lesion; Brachial Radiculitis; Cervical Myofascitis; and a Thoracic sprain/ strain. He recommended treatment consisting of joint mobilization, cryotherapy, sine wave muscle stimulation and heat therapy. Moreau was prescribed Vicodin for pain and Soma for night use.

Moreau's therapy log shows that for the first month of treatment, she attended therapy six times.

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Cite This Page — Counsel Stack

Bluebook (online)
806 So. 2d 809, 2001 WL 1651375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moreau-v-north-american-fire-and-cas-insurance-company-lactapp-2001.