Taylor v. Allstate Insurance Co.

872 So. 2d 621, 2004 WL 1064295
CourtLouisiana Court of Appeal
DecidedMay 12, 2004
DocketNo. 2003-1273
StatusPublished
Cited by1 cases

This text of 872 So. 2d 621 (Taylor 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
Taylor v. Allstate Insurance Co., 872 So. 2d 621, 2004 WL 1064295 (La. Ct. App. 2004).

Opinion

hGREMILLION, Judge.

The plaintiff, Alexis D. Taylor, appeals the jury’s damage award and factual findings, and the trial court’s exclusion of evi[623]*623dence in favor of the defendant, Allstate Insurance Company. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This suit arises out of a motor vehicle accident that occurred in Iberia Parish, Louisiana, in August 1995. Taylor, who was sixteen years old at the time of the accident, settled with the other driver for the policy limits of $10,000, and liability is not at issue. In August 1997, she filed suit against her under-insured motorist policy carrier, Allstate, alleging that it was indebted to her for injuries resulting from the accident. A jury trial was held in October 2002. The jury made the following awards:

a) Past and future pain and suffering $ 50,000
b) Past and future mental anguish $ 0
e)Loss of enjoyment of life $ 0
d) Permanent disability $ 0
e) Future lost wages $ 0
f) Past medical expenses $ 40,640.71
g) Future medical expenses $ 0

Taylor now appeals.

ISSUES

Taylor assigns as error:

1. The jury’s damage award.
[a2. The jury’s failure to find that Allstate was arbitrary, capricious, and without probable cause in making its tenders.
3. The trial court’s exclusion of evidence which was legally admissible and highly probative to her case.

DAMAGES

Taylor urges that the jury erred in awarding her only $50,000 in past and future pain and suffering and in failing to award her damages for past and future mental anguish, loss of enjoyment of life, permanent disability, and future medical expenses.

General Damages

General damages include an award for the victim’s pain and suffering, and, as such, are intrinsically speculative and not subject to mathematical certainty. Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70. We review the jury’s general damage award using the abuse of discretion standard set forth in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). The jury is afforded much discretion in independently assessing the facts and rendering an award because it is in the best position to evaluate witness credibility and see the evidence firsthand. Anderson v. New Orleans Pub. Serv., Inc., 583 So.2d 829 (La.1991). The award should be based on the facts and circumstances of the particular case. Id. Only if we find that the jury abused its discretion, may we lower or raise the award and resort to prior awards to the extent that is reasonably within our discretion. Id.

Dr. Francis Morvant, a chiropractor, first saw Taylor following the accident on September 13, 1995. She réported headaches, neck, lower back, shoulder, and wrist pain, and pins and needles and numbness in her arms. She treated [¡¡with him through February 1996, and reported the same types of problems at each visit. Dr. Morvant diagnosed her with a cervical sprain/strain, muscle spasms, ligament laxity, and tension headaches. He stated that he did not think Taylor was exaggerating her symptoms. Dr. Morvant did state that he had seen Taylor prior to the accident when she came in for maintenance adjustments at Pinhook Chiropractic where her father was employed as a business manager. On cross-examination, however, Allstate’s counsel questioned him as to records indicating that Taylor had been treated at Pinhook for low back pain, neck pain, and headaches from January 1994, through December 1994, for an acci[624]*624dent occurring in April 1993. Dr. Morvant did not recall those events and explained that someone else in the office may have treated her for that, but that he believed her visits were just well-care and preventative in nature. However, Pinhook medical records indicate that Taylor was seen throughout 1994, and the diagnosis was for an accident in April 1993. Further, records from range-of-motion tests prior to the August 1995 accident and post-accident were the same. Left rotation and right lateral flexion in the cervical motion part of the range of motion test were improved post-accident.

Dr. David Warren, a dentist, testified that he routinely treats temporomandibu-lar joint dysfunction (TMD) in his practice. He explained that, in TMJ dysfunctions, the joints and discs are not working properly and that there is usually muscle spasm that causes the patient pain. Dr. Warren testified that he first saw Taylor on March 1, 1996, and treated her through October 8, 1996. He stated that she had numerous complaints of pain resulting from the accident. He diagnosed her as having TMD and concluded that her jaw was not opening straight after | conducting several tests. He also noted subjective popping in that joint. Dr. Warren opined that the accident had caused the ensuing TMJ problems including an elongation and tearing of the ligaments. He treated Taylor with a splint to wear during the day as well as a different one to wear at night and described having to wear' them as “tolerable” in order to get relief from the pain. Dr. Warren also testified that some of Taylor’s baby teeth had to be removed and that he had to refer her to an oral surgeon to remove the remaining roots. He stated that Taylor should have naturally lost the teeth by that point, but since she had not, he probably would have had to remove them anyway. But, Dr. Warren stated they need to be removed in order to move forward with the splint therapy. He also referred Taylor to Valerie LeBas of Rehabilitation Associates of Lafayette for physical therapy, explaining that sore back muscles also contribute to TMJ problems. By early October, Dr. Warren testified that Taylor’s neck and shoulder pain had decreased by eight percent, the clicking, snapping, and popping in her jaw had ceased, and her headaches had decreased by ninety percent.

Dr. Warren also referred Taylor to Drs. Guidry and Harkins for the placement of braces, to aid in her pain relief by positioning the teeth in a more comfortable position. However, Dr. Warren stated TMJ problems are usually “for life” and that he believed she would need future medical treatment for this disorder. However, he had no idea what the costs of her future medical treatment might be.

On cross-examination, Dr. Warren testified that his records indicated that Taylor opened her jaw to thirty-eight millimeters, which he found to be within normal limits. He also testified that Taylor stated that she did not have any problems prior |fito the accident. However, he did not ask detailed questions regarding whether she clenched her jaw. He further testified that, at the May 2,1996 appointment, Taylor reported that she had no headaches or popping in her jaw as long as she wore her splint, but that she had lost it. Records dated June 17, 1996, indicate that Taylor reported no headaches, decreased neck and shoulder pain, and no clicking, popping, or snapping on her right side. The same indications were made at appointments on the following dates: June 27, 1996, July 1996, August 5, 8, and 15, 1996, September 10, 1996, and October 8, 1996.

Dr. Warren testified that stress is a significant contributing factor with TMJ problems. He further stated that he [625]

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