Stoll v. Allstate Insurance Co.

95 So. 3d 1089, 11 La.App. 5 Cir. 1006, 2012 WL 1605709, 2012 La. App. LEXIS 618
CourtLouisiana Court of Appeal
DecidedMay 8, 2012
DocketNo. 11-CA-1006
StatusPublished
Cited by15 cases

This text of 95 So. 3d 1089 (Stoll v. Allstate 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
Stoll v. Allstate Insurance Co., 95 So. 3d 1089, 11 La.App. 5 Cir. 1006, 2012 WL 1605709, 2012 La. App. LEXIS 618 (La. Ct. App. 2012).

Opinion

CLARENCE E. McMANUS, Judge.

| ¡¡Plaintiffs, Gertrude Hurt and Charles Stoll III filed suit against Charles Fury and his motor vehicle liability insurer and Hurt’s uninsured/underinsured motorist liability insurer for damages allegedly sustained in a car accident. The matter was heard at a two day trial before a jury. At the end the plaintiffs’ case, counsel’s motion for a directed verdict in favor of plaintiffs on the issue of liability was granted. At the conclusion of trial the issue of damages was presented to the jury who found that plaintiff incurred damages of $0.00 as a result of the accident. In accordance with the jury’s findings, the trial court rendered judgment in favor of defendants, dismissing plaintiffs’ suit with prejudice. Thereafter, plaintiffs filed motions for new trial, additur or judgment notwithstanding the verdict, which were denied by the trial court. This appeal followed.

THE ACCIDENT

The accident at issue occurred on May 8, 2007 at the intersection of Ames and La-palco Boulevards in Marerro, Louisiana. Ms. Hurt was driving her vehicle with Mr. Stoll as a guest passenger. Ms. Hurt stopped at the intersection, and waited for traffic to clear so that she could execute a right hand turn. Mr. Fury was in the vehicle directly behind Ms. Hurt, in a standard transmission pickup truck. He testified that as he turned his head to view traffic coming behind them, his foot |4slipped off the clutch and his truck rolled into Ms. Hurt’s car. Both parties moved their vehicles off the roadway and the police were called.

Ms. Hurt testified that she did not see Fury’s truck prior to the impact. She stated that the impact was hard, and that it caused her to rise off of her seat. She also further testified that her car was not damaged before the impact. After the impact, her trunk was buckled and her bumper was damaged. She had the car repaired at Allstate Collision Center. The final repair bill was $2332.17.

After the collision, Mr. Stoll called the police and an officer arrived 20-30 minutes later. The officer spoke to her and to Mr. Fury, and then Mr. Stoll walked with him over to' where the accident occurred to describe how it happened.

Mr. Stoll also testified that the impact was hard enough to lift him off his seat, and that the top of his head hit the top of the car. Mr. Stoll also testified that he walked over to the scene of the accident with the investigating officer.

Mr. Fury testified that immediately pri- or to the accident he was looking at plaintiffs bumper, and he noticed that it was torn and that the K in B-U-I-C-k was missing. He then turned his head to check the traffic and at that time his foot slipped off of the clutch. Mr. Fury also testified that he did not see Mr. Stoll walked over to the scene of the accident with the investigating officer.

Officer William Hotard testified that he investigated the accident. There were no complaints of injuries and he saw only minor damage to plaintiffs car and no damage to defendant’s truck. His report indicated that he spoke to Ms. Hurt and to Mr. Fury, but there was no indication that he spoke to Mr. Stoll.

All parties admitted that Ms. Hurt and Mr. Stoll did nothing to cause the accident. Neither party reported injury at the scene, nor was an ambulance called.

JjMEDICALS — MS. HURT

The plaintiffs have been in a relationship for 7 years, and they resided in the same house. Mr. Stoll did not drive, as he suffered from epilepsy. Accordingly, they tried to schedule their appointments at the [1092]*1092same time, so that Ms. Hurt could transport them both.

Ms. Hurt testified that immediately after the accident she felt shaken up. The next morning she woke up in pain, and she went to see her primary care physician, Dr. Libby Ellent. Ms. Hurt stated that she had a headache, her neck hurt and her back hurt. Dr. Ellent sent her for an X-ray and prescribed muscle relaxers. The x-ray was taken the next day, May 9th, and showed no abnormalities. Ms. Hurt also testified that despite being raised off her seat during the accident impact, she suffered no bruising where her seat belt had been.

Within the next two weeks, Ms. Hurt was referred to Dr. Michael Chambers, by her attorney. She treated with Dr. Chambers for the next 8 months. At trial, Dr. Michael Chambers was qualified as an expert in general practice medicine. He testified that he specialized in people that had been injured in accidents, and that many of his clients were involved in litigation. He first saw Ms. Hurt on May 21, 2008, three weeks after the accident. At this time, she had already been seen by an emergency room physician and her primary care physician. On her first visit, she complained of bilateral neck pain, upper and lower back pain, kidney pain, and anxiety. On examination, she complained of moderate to severe pain on range of movement and exhibited evidence of muscle spasms. He diagnosed cervical strain, lumbar strain, and post traumatic headaches. At this time he recommended treatment two to three times weekly consisting of moist heat, electrical muscle stimulation and ultrasound massage.

|fiDespite treatment, four months post accident, Ms. Hurt still reported severe pain. On examination Dr. Chambers found only some muscle tenderness. He referred her for an MRI. The MRI showed a possible contained subligamentous herniation at L3 — 1, L4-5, and L5-S1. These results matched her description of pain. He stated that while many people had bulging discs, a herniation would mostly likely result from trauma. He further stated that the only trauma that he was made aware of was the May 7, 2008 automobile accident. In October of 2008, he recommended that she consult a neurosurgeon. In December of 2008, Ms. Hurt reported that she had seen Dr. Bradley Bartholomew, a neurosurgeon.

Ms. Hurt’s last visit to Dr. Chambers was on January 21, 2009, and which time she requested that she be discharged from his care. Dr. Chambers stated that at that time, he had exhausted all of his treatment options and nothing else to offer her. In his opinion, Ms. Hurt was not exaggerating or speaking mistruths about her symptoms. Dr. Chambers further stated that he was aware that she had a law suit pending.

In December of 2008, Ms. Hurt was referred by her attorney to Dr. Bradley Bartholomew, a neurosurgeon. At trial, Dr. Bradley Bartholomew was qualified as an expert in neurosurgery. He testified that he first saw Ms. Hurt on December 8, 2008. She complained of constant back pain, a heavy feeling in both legs with occasional numbness, neck pain and occasional headaches. Strength, sensory feeling and reflexes in her arms and legs were normal. The straight leg test, which tests possible herniated discs in the lumbar spine foramen was normal. He felt no spasms in her back or neck, but he noted tenderness in the neck and lower back at the L4-5, L5-S1 levels. She had loss of motion extensions because of her complaints of pain. In her history, Ms. Hurt related to him that she had been in an automobile accident on May 7th. He further related that she stated no previous [1093]*109317issues with her neck or back. Dr. Bartholomew also reviewed the MRI that had been taken. His findings were that she had multiple abnormalities, any or all of which could have been contributing to her pain.

As Dr. Bartholomew explained, Ms. Hurt was complaining of lumbar pain, and there were abnormalities on the MRI. Her pain could be caused by any of the following; the discs, the facet joints or muscle sprain or strain.

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Cite This Page — Counsel Stack

Bluebook (online)
95 So. 3d 1089, 11 La.App. 5 Cir. 1006, 2012 WL 1605709, 2012 La. App. LEXIS 618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stoll-v-allstate-insurance-co-lactapp-2012.