Tamayo v. American National General Insurance Co.

150 So. 3d 459, 14 La.App. 5 Cir. 130, 2014 La. App. LEXIS 2283, 2014 WL 4723865
CourtLouisiana Court of Appeal
DecidedSeptember 24, 2014
DocketNo. 14-CA-130
StatusPublished
Cited by10 cases

This text of 150 So. 3d 459 (Tamayo v. American National General 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
Tamayo v. American National General Insurance Co., 150 So. 3d 459, 14 La.App. 5 Cir. 130, 2014 La. App. LEXIS 2283, 2014 WL 4723865 (La. Ct. App. 2014).

Opinion

ROBERT M. MURPHY, Judge.

| gPlaintiffs-appellants, Jalima Tamayo, Sobeyda Green a/k/a Sobeyda Raquel Ser-aphin, and Fox Cars, LLC, appeal from the trial court’s May 21, 2013 judgment partially granting and partially denying plaintiffs’ motion for judgment notwithstanding the verdict, and awarding plaintiffs damages. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

This lawsuit arises out of a rear-end collision on March 17, 2011, wherein So-beyda Seraphin was driving a 2004 Chevy Aveo, which was struck from behind by a [463]*4632008 Honda Civic operated by defendant, Kevin Klopf. Jalima Tamayo, was riding as a passenger in the Aveo, which was owned by Fox Cars, LLC at the time of the accident. On May 10, 2011, plaintiffs, Jalima Tamayo, Sobeyda Seraphin, and Fox Cars, LLC, filed a petition for damages arising out of the accident against Kevin Klopf and his insurer, American National General Insurance Company. The matter proceeded to a jury trial on March 11, 2013 through March 13, 2013.

|sAt trial, the parties offered evidence showing that the accident at issue occurred on the Causeway Bridge at around 7:00 p.m. or 7:30 p.m. at night. Although Ta-mayo typically drove the Aveo, Seraphin was driving at the time of the accident because Tamayo was tired from working that evening. Plaintiffs were traveling in the southbound lane of the Causeway when their Aveo experienced a flat tire. As a result, Seraphin slowed the car down to approximately 30 to 35 miles per hour, and plaintiffs claim that she turned on the emergency hazard lights and intended to change the tire at the next crossover on the Causeway.

Meanwhile, Klopf was also traveling in the southbound lane of the Causeway at approximately 65 miles per hour. Just prior to the collision, Klopf testified that he did not see any other vehicle, any rear taillights or any hazard lights ahead of him on the bridge. When his cell phone lit up, Klopf glanced down at his cell phone, which was located in his driver’s side door handle. Klopf testified that he looked down at his phone for approximately one to two seconds, but that he did not use the phone. When Klopf looked up at the road again, all he saw was the white paint of the Aveo immediately in front of him. At that point, Klopf applied the brakes, but did not have time to avoid striking the Aveo from the rear.

The Aveo was owned by plaintiff Fox Cars, LLC, a company owned by Tamayo’s husband, Armando Cruz. At the time Fox Cars purchased the Aveo, the car had a salvage title, as it had previously been declared a total loss. Cruz testified that his shop fully repaired the Aveo, but he had no documents evidencing the repairs. Cruz also testified that the Aveo did not have a brake tag at the time of the accident. Photographs of the Aveo after the accident were shown to the jury, which depicted the rear end of the Aveo completely smashed. Tamayo and Seraphin, as well as each of their husbands, testified that they all witnessed the rear |4hazard lights of the Aveo flashing after the accident. Whereas, Klopf testified that he did not see any rear lights on the Aveo working after the accident, but that he did see the front hazard lights flashing after the accident.

Tamayo and Seraphin both claimed personal injuries as a result of the collision. Specifically, Tamayo introduced evidence indicating that she sustained a herniated lumbar disc, a bulging lumbar disc, and three bulging cervical discs, and Seraphin introduced evidence indicating that she sustained two bulging lumbar discs and soft tissue injuries to her cervical spine. Neither Tamayo nor Seraphin went to the hospital for further medical attention on the night of the accident. However, on the day after the accident, Tamayo sought medical care from Dr. Leia Frickey for headaches, dizziness, and neck and shoulder pain, but she did not complain of back pain at that time. Dr. Frickey’s examination of Tamayo revealed that she had suffered a neck sprain, but her examination of Tamayo’s lumbar area was normal. Ta-mayo was also evaluated by Dr. Gloria Kang, who similarly concluded that Ta-mayo sustained a neck sprain, but found no abnormalities in her back.

[464]*464Tamayo testified that she did not feel back pain at the time she visited Dr. Frickey, but that she did experience back pain in the following weeks. As a result, Tamayo began treating with Chiropractor Michael Haydel on April 4, 2011, eighteen days after the accident. Chiropractor Haydel documented objective medical findings in Tamayo’s neck and back, which he related to the accident at issue. Upon Chiropractor Haydel’s recommendation, Tamayo obtained an MRI of her neck and back. Tamayo’s. MRI results were reviewed by Dr. Bradley Bartholomew, a neurologist. Dr. Bartholomew testified that Tamayo sustained three bulging lumbar discs, which he opined could have been caused by. trauma, or could have been preexisting. Dr. Bartholomew also ordered a discogram, which | r,produced a positive finding. As a result, Dr. Bartholomew testified that the discogram confirmed that Tamayo was experiencing pain at the L4-5 and L5-S1, and recommended that Tamayo receive a two-level lumbar IDET procedure.

Defendants retained Dr. David Aiken and Dr. Najéeb Thomas to evaluate Ta-mayo.' Dr. Aiken evaluated Tamayo on March 21, 2012, approximately one year after the accident. He testified that during his evaluation of Tamayo, she told him that she was not experiencing any neck or back pain, but that she had been experiencing dizziness and headaches. After his examination of Tamayo’s neck and back both produced normal results, Dr. Aiken opined that if she had neck or back injuries, they had healed by the time of his evaluation. He further opined that because neither Dr. Frickey nor Dr. Kang found any abnormalities in Tamayo’s back following the accident, her lumbar abnormalities could not be related to the accident.

Dr. Thomas also acknowledged Ta-mayo’s lumbar abnormalities, but noted that she exhibited several non-anatomical responses during his evaluation which he described as consisting of generally unreliable responses. Specifically, he testified that when he lightly touched her spine, Tamayo jumped in pain and indicated that it caused pain and heat throughout her leg. Dr. Thomas testified that lightly touching the spine should not cause these responses. He further testified that he witnessed Tamayo walk with a locked-knee limp, which he described as being inconsistent with back or leg pain. Dr. Thomas also noted that Tamayo alternated the limp to the other leg when she walked back towards him.

Seraphin was also treated by Dr. Frick-ey, Chiropractor Haydel and Dr. Bartholomew. Dr. Frickey testified that her examination of Seraphin revealed spasms in her cervical and lumbar spine. Chiropractor Haydel ordered Seraphin to have an MRI of her lumbar spine, which revealed two bulging discs at L3-L4 and | nL4-L5. However, Dr. Aiken interpreted the MRI results of Seraphin’s neck and back as normal. Dr. Aiken also testified that his physical examination of her neck and back was similarly normal.

Defendants also introduced into evidence surveillance videos of Tamayo and Seraphin conducted in March of 2012, roughly one year after the accident. The surveillance videos depicted Tamayo and Seraphin performing various activities ranging from shopping, lifting children in and out of cars, running errands, and bending.

After the conclusion of the evidence, the jury rendered a verdict finding Klopf 50% at fault, Tamayo 20% at fault, Seraphin 20% at fault, and Fox Cars 10% at fault.

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150 So. 3d 459, 14 La.App. 5 Cir. 130, 2014 La. App. LEXIS 2283, 2014 WL 4723865, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tamayo-v-american-national-general-insurance-co-lactapp-2014.