Perritt v. Commercial Union Ins. Co.

673 So. 2d 215, 95 La.App. 3 Cir. 1274, 1996 La. App. LEXIS 531, 1996 WL 109049
CourtLouisiana Court of Appeal
DecidedMarch 13, 1996
Docket95-1274
StatusPublished
Cited by5 cases

This text of 673 So. 2d 215 (Perritt v. Commercial Union Ins. 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
Perritt v. Commercial Union Ins. Co., 673 So. 2d 215, 95 La.App. 3 Cir. 1274, 1996 La. App. LEXIS 531, 1996 WL 109049 (La. Ct. App. 1996).

Opinion

673 So.2d 215 (1996)

Boyd E. PERRITT, et al., Plaintiffs-Appellees,
v.
COMMERCIAL UNION INSURANCE COMPANY, et al., Defendants-Appellants.

No. 95-1274.

Court of Appeal of Louisiana, Third Circuit.

March 13, 1996.
Rehearing Denied May 30, 1996.

*216 Charles Gordon Tutt, Lisa R. Dunn Folsom, Shreveport, for Commercial Union Insurance Co.

Timothy Robert Fischer, Shreveport, for Mitchell & Rita Odom.

Ronald E. Corkern Jr., Natchitoches, for Empire Fire & Marine Ins. Co.

Before KNOLL, THIBODEAUX and WOODARD, JJ.

KNOLL, Judge.

Mitchell Odom, plaintiff in reconvention, was injured when the eighteen wheeler he was driving collided with a mobile home that was being moved and pulled onto Louisiana Highway 120, near the town of Belmont, in Sabine Parish, Louisiana. Mitchell Odom and his wife, Rita Odom, have perfected this appeal and assign two errors: Mitchell Odom assigns as error the jury's failure to award more than $15,000 for past and future lost earnings; and, Rita Odom appeals the jury's award of only $2,500 for loss of consortium. For the reasons below, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

Mitchell Odom was employed as a tanker truck driver by Mathews Trucking Company. On December 27, 1991, he was transporting a tanker trailer nearly full of salt water on Highway 120 in Sabine Parish. Boyd Perritt moved mobile homes for a living, and that morning he was preparing to remove a mobile home from a lot adjacent to Highway 120.

December 27, 1991, was a gloomy day. It had been raining earlier, and the roadway was still wet. Boyd Perritt had placed two flagmen to warn oncoming traffic as he pulled the mobile home onto Highway 120, blocking both lanes. As Mr. Odom rounded a curve in the road, he saw the mobile home across the roadway. Only later did he notice the flagman. Although he was not driving at an excessive rate, Mr. Odom was unable to stop his rig in time. Mr. Odom's tanker truck struck the mobile home and overturned in a roadside ditch. Mr. Odom was slammed about inside the cabin of the eighteen wheeler.

Lee Isgitt, a state trooper, investigated the accident scene. His investigation revealed that several of the trailer's brakes were inoperative and had not functioned for some time before the accident. Mr. Odom, who was ambulatory at the accident scene, stated that he had been having trouble with the brakes. He stated that he had informed his employer of the problem, but that they had failed to repair the brakes.

The case was tried before a jury between September 26, 1994, and October 1, 1994. The jury returned a verdict assessing Mitchell Odom with 20% fault, Boyd Perritt with 30% fault, and Mathews Trucking with 50% fault.

The jury found that Mitchell Odom suffered the following damages: past medical expenses—$14,115.75; lost earnings past and future—$15,000; and general damages— $100,000. The jury also awarded Rita Odom $2,500 for loss of consortium.

Mitchell Odom asserts that the jury abused its discretion in awarding only $15,000 for lost earnings, past and future. The defendants counter assert that Mr. Odom offered inadequate proof of his lost earnings and that the jury's award is supported by the record evidence. The defendants point out numerous errors in the assumptions relied on by the plaintiff in proving lost earnings.

*217 MEDICAL HISTORY

Mr. Odom was taken to Mansfield Family Medicine, where he was examined by Dr. Leigh Dillard. Dr. Dillard noted mild back pain and twitching in Mr. Odom's left leg. Dr. Dillard referred Mr. Odom to Dr. David A. Cavanaugh, a neurosurgeon in Shreveport, for a neurological evaluation. Dr. Cavanaugh was the only physician who testified at trial.

Dr. Cavanaugh first saw Mr. Odom on January 15, 1992. Mr. Odom related that although his back pain had lessened since the accident, he continued to experience twitching in his leg. Mr. Odom also told Dr. Cavanaugh about a pelvic injury in 1978 in which he experienced residual weakness in his left ankle and foot. Dr. Cavanaugh ordered a cervical MRI and a lumbar MRI, but could find no definite cause of Mr. Odom's twitching.

Dr. Cavanaugh referred Mr. Odom to Dr. Victoria M. Vernon, a physiatrist, for electrical studies to determine the source of the leg twitch. On January 31, 1992, Dr. Cavanaugh reviewed Dr. Vernon's results and ruled out any serious involvement of the nerves in the lumbar spine. He cleared Mr. Odom to return to work at this time.

The next time Dr. Cavanaugh saw Mr. Odom was April 14, 1992. In the interim, Mr. Odom had sought a second opinion from Dr. Nabil A. Moufarrej, a neurologist at Willis-Knighton Medical Center. Dr. Moufarrej repeated the MRI and nerve conduction tests, and requested that Dr. Cavanaugh reevaluate Mr. Odom because Dr. Moufarrej felt that Mr. Odom would require surgery. In the course of this reexamination, Dr. Cavanaugh learned that Mr. Odom had injured his back while "pulling a water well" on his property, and that he had stayed in bed for three days because of severe back pain following this incident. Dr. Cavanaugh stated that Mr. Odom's symptoms were about the same as in his January examination. Dr. Cavanaugh felt that surgery was not necessary in that it would not relieve the symptoms suffered by Mr. Odom. Dr. Cavanaugh referred Mr. Odom to Dr. Richard M. Zweig at L.S.U. Medical Center, because he was still unsure of the source of Mr. Odom's leg twitching. Dr. Zweig opined one component of the problem in Mr. Odom's leg was caused by an aggravation of the 1978 injury.

Dr. Cavanaugh examined Mr. Odom on June 18, 1992. He began to note definite atrophy in the muscles of the left leg. Although Dr. Cavanaugh was concerned about the atrophy, he did not recommend surgery because he did not feel that the problem could be corrected through lumbar surgery.

The atrophy continued through November 17, 1992, when Dr. Cavanaugh again examined Mr. Odom. Mr. Odom was beginning to have trouble walking because of weakness in his left leg. He also continued to have a dull backache. Dr. Cavanaugh ordered a lumbar myelogram and a CT scan to be absolutely certain that surgery would not relieve the left leg symptoms, but once again he could note no nerve compression that would account for the atrophy of the left leg.

Finally, Dr. Cavanaugh referred Mr. Odom to Dr. Austin Sumner of L.S.U. Department of Neurology for an evaluation. On January 6, 1993, Dr. Sumner reported findings consistent with those of the other physicians, and opined that the left leg symptoms were an aggravation of the 1978 injury. By Dr. Cavanaugh's final examination of January 28, 1993, Mr. Odom's leg had stabilized, and his back pain had lessened. Dr. Cavanaugh felt that Mr. Odom had reached maximum improvement.

Dr. Cavanaugh did not feel that he could evaluate Mr. Odom's disability. The record reflects that Dr. Cavanaugh initially felt that Mr. Odom could return to work as a truck driver. At the time of trial, Dr. Cavanaugh stated that although he knew that Mr. Odom had resumed work as a truck driver, he did not recommend that job for Mr. Odom because of the extended periods that truck drivers remain seated. Nevertheless, Dr. Cavanaugh also stated that he would not oppose Mr. Odom from driving a truck if he was able to take rest stops every hour or so.

Mr. Odom's disability was further addressed by Richard Galloway, Ph.D., a rehabilitation counselor in Nachitoches. Dr. Galloway saw Mr. Odom on June 24, 1993. By this time Mr. Odom had returned to work as *218 an independent truck driver. Although Dr.

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Bluebook (online)
673 So. 2d 215, 95 La.App. 3 Cir. 1274, 1996 La. App. LEXIS 531, 1996 WL 109049, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perritt-v-commercial-union-ins-co-lactapp-1996.