STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
04-211
PHILLIP BRUCE JACKSON
VERSUS
SAFEWAY INSURANCE COMPANY OF LOUISIANA, ET AL.
**********
APPEAL FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 2003-4613-B HONORABLE WILLIAM J. BENNETT, DISTRICT JUDGE
ELIZABETH A. PICKETT JUDGE
Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Billy Howard Ezell, Judges.
AFFIRMED.
Kerry L. Spruill Attorney at Law P.O. Box 977 Marksville, LA 71351 (318) 240-7510 Counsel for Plaintiff/Appellee: Phillip Bruce Jackson
Ray F. Lucas, III Attorney at Law P. O. Box 4305 Lafayette, LA 70502-4305 (337) 232-1604 Counsel for Defendants/Appellants: Safeway Ins. Co. of Louisiana Russell Lee Mouton PICKETT, Judge.
FACTS
This case arises from an automobile accident that occurred on April 4, 2002.
On that date, Phillip Bruce Jackson was a guest passenger in a vehicle being driven
by Carl K. Harris. Their vehicle was struck by a vehicle being operated by Russell
Lee Mouton. At the time of the accident, Mr. Mouton’s vehicle was insured by
Safeway Insurance Company of Louisiana (Safeway). Mr. Jackson sustained personal
injuries as a result of the accident.
Mr. Jackson filed a Petition for Damages naming Mr. Mouton and Safeway as
defendants. A trial on the merits was held on October 24, 2003. The parties entered
into a stipulation whereby liability was fully assessed to the defendants. The only
issues presented at trial were the nature and extent of Mr. Jackson’s injuries and the
amount of damages to which he is entitled.
At the conclusion of the trial, the trial court issued oral reasons for ruling. The
trial court awarded Mr. Jackson $10,000.00 in damages. A judgment was signed on
November 6, 2003. It is from this judgment the defendants appeal.
ASSIGNMENTS OF ERROR
The appellants set forth three assignments of error:
1) The trial court erred in not finding Philip Bruce Jackson failed to mitigate his damages.
2) The trial court erred in finding a causal connection between Phillip Bruce Jackson’s subjective complaints and the April 4, 2002 automobile accident.
3) The trial court erred in awarding $10,000.00 in damages to Philip Bruce Jackson. DISCUSSION
The first two assignments of error relate to findings of fact by the trial court
which are reviewed by this court under the manifest error standard of review. An
appellate court cannot set aside the findings of fact by the trial court unless those
findings are clearly wrong or manifestly erroneous. Rosell v. ESCO, 549 So.2d 840
(La.1989). An appellate court must determine not whether the trier of fact was right
or wrong, but whether the fact finder’s conclusion was a reasonable one. Lyons v.
Bechtel Corp., 00-0364 (La.App. 3 Cir. 12/27/00), 788 So.2d 34, writ denied, 01-282
(La 3/23/01), 787 So.2d 996.
The appellants argue that the plaintiff failed to carry his burden of proof by
establishing it is more probable than not that his subjective complaints were related
to the accident at issue.
The Louisiana Supreme Court discussed the plaintiff’s burden of proof on the
issue of causation in the personal injury case Maranto v. Goodyear Tire & Rubber
Co., 94-2603, 94-2615, p. 3 (La. 2/20/95), 650 So.2d 757, 759:
In a personal injury suit, plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident which caused the injury. American Motorist Insurance Co. v. American Rent- All, Inc., 579 So.2d 429 (La.1991); Aucoin v. State Farm Mut. Auto Ins. Co., 505 So.2d 993 (La.App. 3d Cir. 1987); Richard v. Walgreen’s Louisiana Co., 476 So.2d 1150 (La.App. 3d Cir. 1985). Plaintiff must prove causation by a preponderance of the evidence. Morris v. Orleans Parish School Bd., 553 So.2d 427 (La.1989). The test for determining the causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident. Mart v. Hill, 505 So.2d 1120 (La.1987); Villavaso v. State Farm Mut. Auto Ins. Co., 424 So.2d 536 (La.App. 4th Cir. 1982).
At the trial, the plaintiff testified that:
He started feeling pain in his lower back and in his neck about two days after the accident. He testified that, while in the military, he was required to lift equipment weighing 300 pounds which caused him to
2 suffer back pain but that the pain stopped when he was discharged in 1994. The plaintiff testified that he treated the back pain from the accident in question with over-the-counter medication such as Extra Strength Tylenol. According to the plaintiff, the neck pain went away after a couple of months but the back pain still persisted after June 2002. The plaintiff continued to self-treat the back pain with heating pads, rest, and by not lifting. The plaintiff testified that as a result of the back pain, he can only sit in one particular position for thirty minutes at a time.
On February 25, 2003, the plaintiff went to the emergency room at Bunkie
General Hospital to seek treatment for his back pain. X-rays were performed which
showed some straightening of the normal lordotic curve. He was given Naprosyn,
Vicodin, and a heating pad, and was referred to his physician, Dr. Donald L. Hines.
The plaintiff saw Dr. Hines the next day. Dr. Hines diagnosed the plaintiff with a soft
tissue injury and prescribed anti-inflammatory medication. The plaintiff was seen by
a nurse practitioner, Mary Ellen Hood, when he returned to the clinic again on March
14, 2003. He complained of back pain at this visit. Ms. Hood prescribed Bextra for
two weeks. The plaintiff returned to the clinic on May 1, 2003, with continued
complaints of back pain. He requested an MRI be performed if the pain persisted.
Ms. Hood prescribed Darvocet, a non-narcotic pain reliever. The plaintiff’s last visit
was on August 15, 2003. At this time he stated the back pain was gone. Ms. Hood
advised the plaintiff to continue taking muscle relaxants and apply heat as needed.
She prescribed Soma, a muscle relaxant, to take as needed. The plaintiff testified that
he did get better after seeing Dr. Hines, but that from time to time he still experiences
back pain.
Cynthia Malveaux, the plaintiff’s girlfriend, testified that:
[S]he had been dating the plaintiff for the last two years and usually saw him five days a week. Ms. Malveaux testified that the plaintiff sustained back injuries in the accident in question and also had some neck pain following the accident that lasted about three months. She further testified about the discomfort the plaintiff experienced as a result of the pain and his inability to sit for long periods of time, do
3 outside work, and lift heavy objects.
Whether an accident caused a person’s injuries is a question of fact which
should not be reversed on appeal absent manifest error. Mart v. Hill, 505 So.2d 1120
(La.1987). The plaintiff’s evidence was unrefuted. The trial court specifically noted
that it found the testimony of the plaintiff and his witnesses to be credible. The trial
court determined the accident caused the injuries at issue and the evidence supports
that finding. We find no merit in the appellant’s argument that the plaintiff failed to
prove causation.
We also find no merit in the appellant’s argument that Phillip Bruce Jackson
failed to mitigate his damages. The accident that caused the plaintiff’s neck and back
injuries occurred on April 4, 2002.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
04-211
PHILLIP BRUCE JACKSON
VERSUS
SAFEWAY INSURANCE COMPANY OF LOUISIANA, ET AL.
**********
APPEAL FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 2003-4613-B HONORABLE WILLIAM J. BENNETT, DISTRICT JUDGE
ELIZABETH A. PICKETT JUDGE
Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Billy Howard Ezell, Judges.
AFFIRMED.
Kerry L. Spruill Attorney at Law P.O. Box 977 Marksville, LA 71351 (318) 240-7510 Counsel for Plaintiff/Appellee: Phillip Bruce Jackson
Ray F. Lucas, III Attorney at Law P. O. Box 4305 Lafayette, LA 70502-4305 (337) 232-1604 Counsel for Defendants/Appellants: Safeway Ins. Co. of Louisiana Russell Lee Mouton PICKETT, Judge.
FACTS
This case arises from an automobile accident that occurred on April 4, 2002.
On that date, Phillip Bruce Jackson was a guest passenger in a vehicle being driven
by Carl K. Harris. Their vehicle was struck by a vehicle being operated by Russell
Lee Mouton. At the time of the accident, Mr. Mouton’s vehicle was insured by
Safeway Insurance Company of Louisiana (Safeway). Mr. Jackson sustained personal
injuries as a result of the accident.
Mr. Jackson filed a Petition for Damages naming Mr. Mouton and Safeway as
defendants. A trial on the merits was held on October 24, 2003. The parties entered
into a stipulation whereby liability was fully assessed to the defendants. The only
issues presented at trial were the nature and extent of Mr. Jackson’s injuries and the
amount of damages to which he is entitled.
At the conclusion of the trial, the trial court issued oral reasons for ruling. The
trial court awarded Mr. Jackson $10,000.00 in damages. A judgment was signed on
November 6, 2003. It is from this judgment the defendants appeal.
ASSIGNMENTS OF ERROR
The appellants set forth three assignments of error:
1) The trial court erred in not finding Philip Bruce Jackson failed to mitigate his damages.
2) The trial court erred in finding a causal connection between Phillip Bruce Jackson’s subjective complaints and the April 4, 2002 automobile accident.
3) The trial court erred in awarding $10,000.00 in damages to Philip Bruce Jackson. DISCUSSION
The first two assignments of error relate to findings of fact by the trial court
which are reviewed by this court under the manifest error standard of review. An
appellate court cannot set aside the findings of fact by the trial court unless those
findings are clearly wrong or manifestly erroneous. Rosell v. ESCO, 549 So.2d 840
(La.1989). An appellate court must determine not whether the trier of fact was right
or wrong, but whether the fact finder’s conclusion was a reasonable one. Lyons v.
Bechtel Corp., 00-0364 (La.App. 3 Cir. 12/27/00), 788 So.2d 34, writ denied, 01-282
(La 3/23/01), 787 So.2d 996.
The appellants argue that the plaintiff failed to carry his burden of proof by
establishing it is more probable than not that his subjective complaints were related
to the accident at issue.
The Louisiana Supreme Court discussed the plaintiff’s burden of proof on the
issue of causation in the personal injury case Maranto v. Goodyear Tire & Rubber
Co., 94-2603, 94-2615, p. 3 (La. 2/20/95), 650 So.2d 757, 759:
In a personal injury suit, plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident which caused the injury. American Motorist Insurance Co. v. American Rent- All, Inc., 579 So.2d 429 (La.1991); Aucoin v. State Farm Mut. Auto Ins. Co., 505 So.2d 993 (La.App. 3d Cir. 1987); Richard v. Walgreen’s Louisiana Co., 476 So.2d 1150 (La.App. 3d Cir. 1985). Plaintiff must prove causation by a preponderance of the evidence. Morris v. Orleans Parish School Bd., 553 So.2d 427 (La.1989). The test for determining the causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident. Mart v. Hill, 505 So.2d 1120 (La.1987); Villavaso v. State Farm Mut. Auto Ins. Co., 424 So.2d 536 (La.App. 4th Cir. 1982).
At the trial, the plaintiff testified that:
He started feeling pain in his lower back and in his neck about two days after the accident. He testified that, while in the military, he was required to lift equipment weighing 300 pounds which caused him to
2 suffer back pain but that the pain stopped when he was discharged in 1994. The plaintiff testified that he treated the back pain from the accident in question with over-the-counter medication such as Extra Strength Tylenol. According to the plaintiff, the neck pain went away after a couple of months but the back pain still persisted after June 2002. The plaintiff continued to self-treat the back pain with heating pads, rest, and by not lifting. The plaintiff testified that as a result of the back pain, he can only sit in one particular position for thirty minutes at a time.
On February 25, 2003, the plaintiff went to the emergency room at Bunkie
General Hospital to seek treatment for his back pain. X-rays were performed which
showed some straightening of the normal lordotic curve. He was given Naprosyn,
Vicodin, and a heating pad, and was referred to his physician, Dr. Donald L. Hines.
The plaintiff saw Dr. Hines the next day. Dr. Hines diagnosed the plaintiff with a soft
tissue injury and prescribed anti-inflammatory medication. The plaintiff was seen by
a nurse practitioner, Mary Ellen Hood, when he returned to the clinic again on March
14, 2003. He complained of back pain at this visit. Ms. Hood prescribed Bextra for
two weeks. The plaintiff returned to the clinic on May 1, 2003, with continued
complaints of back pain. He requested an MRI be performed if the pain persisted.
Ms. Hood prescribed Darvocet, a non-narcotic pain reliever. The plaintiff’s last visit
was on August 15, 2003. At this time he stated the back pain was gone. Ms. Hood
advised the plaintiff to continue taking muscle relaxants and apply heat as needed.
She prescribed Soma, a muscle relaxant, to take as needed. The plaintiff testified that
he did get better after seeing Dr. Hines, but that from time to time he still experiences
back pain.
Cynthia Malveaux, the plaintiff’s girlfriend, testified that:
[S]he had been dating the plaintiff for the last two years and usually saw him five days a week. Ms. Malveaux testified that the plaintiff sustained back injuries in the accident in question and also had some neck pain following the accident that lasted about three months. She further testified about the discomfort the plaintiff experienced as a result of the pain and his inability to sit for long periods of time, do
3 outside work, and lift heavy objects.
Whether an accident caused a person’s injuries is a question of fact which
should not be reversed on appeal absent manifest error. Mart v. Hill, 505 So.2d 1120
(La.1987). The plaintiff’s evidence was unrefuted. The trial court specifically noted
that it found the testimony of the plaintiff and his witnesses to be credible. The trial
court determined the accident caused the injuries at issue and the evidence supports
that finding. We find no merit in the appellant’s argument that the plaintiff failed to
prove causation.
We also find no merit in the appellant’s argument that Phillip Bruce Jackson
failed to mitigate his damages. The accident that caused the plaintiff’s neck and back
injuries occurred on April 4, 2002. The neck pain resolved itself within a few months,
but the back pain persisted. The plaintiff continued to self-treat his back pain by using
over-the-counter drugs because he had started working a new shift and did not want
to miss work. The plaintiff did not seek professional medical treatment for the back
pain until February 25, 2003. When asked whether the delay in treatment would have
adversely affected the plaintiff’s recovery from this type of injury, Dr. Hines testified
as follows:
I don’t think any serious complications resulted because he didn’t seek treatment because, you know, people take Aleve and Advil and Tylenol and all of those things all the time, use Ben-Gay and all kind of home remedies and treat, you know, minor and moderate injuries like that at home without any serious side effects or complications.
The record supports that the plaintiff’s delay in seeking professional medical
treatment was not unreasonable and did not aggravate the injury. This assignment of
error is without merit.
In their third assignment of error, the appellants argued the trial court erred in
awarding Phillip Bruce Jackson $10,000.00 in damages. A trial court has great
4 discretion in awarding damages in a personal injury suit. An appellate court should
rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623
So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059 (1994).
Phillip Bruce Jackson suffered a neck and lower back injury from an auto
accident that occurred on April 4, 2002. The neck injury resolved itself within a few
months of the accident, but the back pain persisted. As a result of the back injury, the
plaintiff has been unable to sit or lie in one position for more than thirty minutes, do
outdoor work, or lift anything heavy. He self-treated until he was seen at the
emergency room on February 25, 2003. He saw Dr. Hines and followed up with the
nurse practitioner until August 2003. Although his back improved, at the time of the
trial the plaintiff still occasionally suffered from back pain.
The trial court awarded the plaintiff damages in the amount of $10,000.00,
which included the medical expenses of $707.85. The trial court assessed costs to the
defendant which included Dr. Hines’ deposition fee of $350.00 and $85.95 for the cost
of the court reporter.
Considering the evidence, we do not find the trial court abused its discretion in
awarding damages of $10,000.00.
The appellee filed an Answer to this appeal on December 17, 2003, seeking
damages for a frivolous appeal pursuant to La.Code Civ.P. art. 2164. We decline to
award damages for a frivolous appeal in this matter.
DECREE
The judgment of the trial court is affirmed in all respects. The appellee’s
5 request for damages pursuant to La.Code Civ.P. art. 2164 is denied. The costs of this
appeal are assessed to the appellant.