Mouton v. Old Republic Insurance Co.

74 So. 3d 1245, 11 La.App. 3 Cir. 458, 2011 La. App. LEXIS 1205, 2011 WL 4579591
CourtLouisiana Court of Appeal
DecidedOctober 5, 2011
Docket11-458
StatusPublished
Cited by1 cases

This text of 74 So. 3d 1245 (Mouton v. Old Republic Insurance 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
Mouton v. Old Republic Insurance Co., 74 So. 3d 1245, 11 La.App. 3 Cir. 458, 2011 La. App. LEXIS 1205, 2011 WL 4579591 (La. Ct. App. 2011).

Opinion

PAINTER, Judge.

| Plaintiff, Bryce Mouton, appeals the trial court’s refusal to award him any damages in this automobile accident case. For the following reasons, we affirm the trial judge’s finding that Plaintiff failed to prove causation as to his alleged TMJ injury, reverse the trial judge’s finding that the accident was not the cause in fact of any damages to Mouton, and render judgment in favor of Mouton in the amount of $2,458.31 for medical expenses and $2,500.00 for general damages for his back injury.

FACTS AND PROCEDURAL HISTORY

This appeal arises out of an automobile accident that occurred on September 8, 2008. On that date, Mouton was driving a 2005 Buick LeSabre, owned by his mother, east on Egan Road in Crowley, Louisiana. He had two passengers in the vehicle with him. 1 He stopped at a red light at the intersection of Egan Road and N. Parker-son Avenue and was directly behind a 2001 Ford F-350 owned by Par Electrical Contractors, Inc. and driven by Ryan L. Tiede. When Tiede noticed that an eighteen-wheeler was attempting to make a left turn to go west on Egan Road, he began to back up in order to avoid what he thought might be a collision between his vehicle and the eighteen-wheeler. Tiede’s vehicle collided with the vehicle being driven by Mouton. Mouton alleged that Tiede was ticketed for “improper backing” by the Crowley Police Department; however, in his trial testimony, Tiede denied being issued any citation as a result of the accident.

Mouton did not request medical attention at the scene of the accident and drove from Crowley to his home in Lafayette, Louisiana, immediately after the accident. Mouton alleges that on the drive to Lafayette, he began to experience pain and stiffness in his back. Once he arrived in Lafayette, he presented to the ^emergency room at Lafayette General Medical Center where he was diagnosed with a back strain and was given Motrin. Mouton alleges that several days after the accident, he began having jaw pain. Two months later, on November 18, 2008, he sought treatment from Dr. Bryan LeBean, a specialist in internal medicine, who diagnosed him with a lumbar strain and TMJ syndrome. In his deposition, Dr. LeBean testified that Mouton’s straight leg raising testing was negative (which is a normal finding), that there was no evidence of muscle spasm, that there was no limitation on range of motion, that his gait was normal, that there were no deficits in sensation or strength, that no x-rays were required, that the examination of Mouton’s jaw was normal, and that Mouton failed to follow his recommendation for physical therapy.

Mouton filed suit against Tiede, Par Electrical, and Old Republic Insurance Company (the insurer of Par Electrical). The matter proceeded to trial, and the trial judge found that the cause of the *1248 accident was Tiede’s backing up. However, the trial judge refused to award any damages to Mouton because he was not convinced that the “minor impact was the cause and fact of any damages that Mr. Mouton suffered.” The trial judge further stated that he was “not convinced with the testimony of the plaintiff in this case that he was injured.” The trial judge ordered Defendants to pay costs. This appeal by Mouton followed.

DISCUSSION

Mouton first alleges that the trial judge committed reversible error in failing to rule on his motion in limine before trial. On their exhibit list, Defendants indicated that they would seek to introduce Mouton’s criminal records at trial. Mouton filed a motion in limine prior to trial seeking to have such evidence excluded. The Defendants objected to the timeliness of the motion since the pre-trial order required that motions in limine be made four weeks prior to trial, and |athis motion was not filed until seven days prior to the trial. Over Defendants’ objection, the trial judge considered the matter immediately prior to the beginning of the trial. The trial judge decided to defer the matter to the merits and rule on any objection at the time the issue came up due to Defendants’ argument that there were issues regarding Mouton’s use of both legal and illegal drugs. Mouton now claims that the trial judge allowed defense counsel to question him about his marijuana conviction during the merits of the trial in contravention of La.Code Evid. art. 609 because his conviction was more than ten years old. Mouton cites the following colloquy:

Q: Have you ever been convicted of marijuana usage?
Mr. Joseph: Objection your Honor.
Ms. Sims: I think the relevance is his motive in treating with his physician
[[Image here]]
Mr. Joseph: ... were [sic] going to revert back to the [C]ode of Evidence in regards to those conviction.
The Court: Yeah. I’m going to sustain the objection as not being relevant.

Clearly, the trial judge sustained the objection and did not allow any evidence of prior criminal convictions into evidence. Therefore, we find this argument to be without merit.

Next, Mouton argues that the trial judge committed reversible error in a “trial by ambush” by allowing trial testimony from a Facebook page that was not previously listed in Defendants’ witness and exhibit list. In order, to preserve an evidentiary issue for review by this court, the complaining party must enter a contemporaneous objection to the evidence or testimony and state the reasons therefor. See Etcher v. Neumann, 00-2282 (La.App. 1 Cir. 12/28/01), 806 So.2d 826, writ denied, 02-905 (La.5/31/02), 817 So.2d 105. We agree with Defendants 14that Mouton failed to make a contemporaneous objection at trial, and, as such, he is barred from now challenging this line of questioning on appeal. Therefore, this assignment of error is not properly before this court.

Whether or not to admit impeachment evidence is a decision that falls within the discretion of the trial court. State v. Tauzin, 38,436 (La.App. 2 Cir. 8/18/04), 880 So.2d 157. In this instance the trial judge sustained Mouton’s objection to the introduction of the Facebook page into evidence. Thus, we find no merit to Mouton’s argument regarding same.

Finally, Mouton asserts that the trial judge abused his discretion when he concluded that the accident resulted in a minor impact with minor property dam *1249 ages which could not cause any injury to him. Defendants argue that there is no objective evidence that any injuries resulted from this minor accident. The trial judge found that he “was not convinced with the testimony of the plaintiff in this case that he was injured” and that “in reading the medical report of Dr. LeBean, there was [sic] only subjective findings, meaning only complaints made of these things, and no spasms or anything to verify that there was [sic] any damages caused by it.”

Mouton argues that the abuse of discretion applies when this court examines a fact finder’s award of damages. Defendant, on the other hand, argues that Mouton failed to prove that he sustained any injuries as a result of the accident and that the manifest error standard of review applies. We disagree with both.

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Bluebook (online)
74 So. 3d 1245, 11 La.App. 3 Cir. 458, 2011 La. App. LEXIS 1205, 2011 WL 4579591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mouton-v-old-republic-insurance-co-lactapp-2011.