Thibodeaux v. Ace American Insurance Co.

127 So. 3d 132, 13 La.App. 3 Cir. 577, 2013 WL 6252420, 2013 La. App. LEXIS 2458
CourtLouisiana Court of Appeal
DecidedNovember 27, 2013
DocketNo. 13-577
StatusPublished
Cited by6 cases

This text of 127 So. 3d 132 (Thibodeaux v. Ace American 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
Thibodeaux v. Ace American Insurance Co., 127 So. 3d 132, 13 La.App. 3 Cir. 577, 2013 WL 6252420, 2013 La. App. LEXIS 2458 (La. Ct. App. 2013).

Opinions

SAUNDERS, Judge.

I,This is an automobile accident case involving a left-turning vehicle striking a passing vehicle established in the passing lane on a two-lane roadway. The jury allocated 53% of the fault to the driver of the passing vehicle and 47% of the fault to the driver of the left-turning vehicle and awarded damages accordingly.

We find the allocation of fault by the jury was erroneous when considering the record before us and the applicable statutes: La.R.S. 32:104, La.R.S. 32:73, and La.R.S. 32:75. We amend the jury’s judgment to allocate 100% of the fault to the driver of the left-turning vehicle. We affirm the remaining aspects of the jury’s judgment.

FACTS AND PROCEDURAL HISTORY:

On August 28, 2008, Danielle Brooke Thibodeaux Hatch (Hatch) (Hatch was married during the pendency of this case) was driving south on La. Highway 333 near its intersection with La. Highway 82 in a 2003 GMC model 1500 pick-up truck. As she proceeded southbound, Hatch approached, from the rear, a Ford F350 truck attached to a gooseneck, flatbed trailer driven by Sean Bohannon (Bohan-non). Passengers in the Ford F350 were then co-employees of Bohannon, Jarvin Flagg and Davon Dugas. Bohannon was driving while in the course and scope of his employment with PSC Industrial Outsourcing, Inc. (PSC). As Hatch attempted to pass the Ford F350, Bohannon attempted to make a left turn onto a private driveway. A collision occurred.

On October 3, 2008, Hatch filed a petition for damages on behalf of herself and her minor daughter, Myka Hatch (Hatch and Myka Hatch collectively referred to Plaintiffs), seeking medical expenses and damages for pain and suffering, loss of income, loss of earning capacity, and loss of enjoyment of life. Plaintiffs’ petition named as defendants Bohannon, PSC, and Ace American Insurance Company |2(Ace) as the insurer of the Ford F350 driven by Bohannon (Bohannon, PSC, and Ace collectively referred to as Defendants).

Plaintiffs alleged that Bohannon failed to make a lawful left turn, failed to keep a proper lookout for the vehicles passing lawfully on the left, failed to yield the right of way, failed to discharge a duty to a person in the capacity of Hatch, and any and all other acts of negligence and/or fault which may have been revealed at or before the trial of this matter.

On June 25, 2012, a jury trial to determine liability commenced. According to the testimonies adduced at this trial, Bo-hannon was driving his company’s white F350 truck and towing a utility trailer down Intracoastal Highway in Vermilion Parish, Louisiana. The trailer on the back of the truck was filled with equipment, completely obstructing his view through the rear view mirror. Hatch was also driving down the two-lane Intracoastal Highway with her two-month-old daughter on their way to pick up her then fiancé.

During the drive, Bohannon attempted to make a left turn into a private driveway. Bohannon stated that he had seen Hatch driving behind him on the Intracoastal Highway just before the turn, but he failed to see that she was in the process of passing him. Bohannon testified that, from the time he slowed to make the left turn until the impact, he never saw Hatch until the collision.

Bohannon stated in his deposition that Hatch must have been in his blind spot when he checked his side mirrors prior to attempting to make the left turn. Bohan-non clarified at trial that the blind spot he was referencing was behind the trailer, as he could not see behind the trailer because [135]*135of the items being carried on the trailer and large tool box.

IsThe physical evidence at the scene indicated that Hatch had already established position in the passing lane before Bohan-non attempted to make the left turn. Upon making the left turn at the private driveway, the front of Bohannon’s F350 struck the front passenger-side fender and wheel of the pick-up driven by Hatch.

Louisiana State Trooper Dexter Bo-urque, an eighteen-year veteran trooper and certified accident reconstructionist for ten years with the Louisiana State Police, testified that based on all the evidence he could ascertain, it was clear that Hatch had control of the passing lane before Bo-hannon began his left turn into a private driveway. Trooper Bourque opined that Bohannon’s actions were the primary factor to the accident and testified that he cited Bohannon for failure to yield.

Defendants called no witnesses to allege that Hatch was not in control of the passing lane before Bohannon began to execute his left turn into a private driveway. Further, Defendants called no witnesses to allege that Hatch was at fault in any way.

After hearing all of the above testimony, the jury allocated 47% of the fault to Defendants and 53% of the fault to Hatch. Thereafter, a damages trial commenced.

At the damages trial, Plaintiffs introduced voluminous evidence of Hatch’s injuries and losses that she alleged were suffered as a result of this accident. In all, six of Hatch’s treating physicians testified. Since the accident, according to the evidence submitted by Hatch, she incurred $164,796.81 in medical expenses, two surgeries, and approximately 100 medical treatment visits.

14While the jury heard the testimony of Hatch’s treating physicians, it also heard the testimony of Defendants’ orthopedic expert, Dr. Douglas Bernard. He testified that all of Hatch’s diagnostic tests following the subject accident were read as normal, including an MRI taken in January of 2009, a second MRI taken in June of 2010, a myelogram taken in October of 2010, a CT scan taken in October of 2010, and a third MRI taken in February 2012. Testimony reflected that all of the independent radiologists who read this same film indicated that there were no abnormalities. Further, the diseogram performed by Dr. Steven Staires was negative, failing to recreate the pain that Hatch complained existed.

Dr. Bernard opined that Hatch may have suffered soft tissue injuries in her neck following this accident, but nothing more. He did not see any indication for the cervical surgery or for the continued diagnostic testing. Concerning her alleged carpal tunnel syndrome, Defendants’ expert neurologist, Dr. Rex Houser, testified that Hatch’s diagnostic testing and subjective complaints were consistent with cubi-tal tunnel syndrome, not carpal tunnel syndrome. Cubital tunnel syndrome is caused by compressing a nerve in the elbow by leaning on it while driving or working. Therefore, Dr. Houser opined that the left carpal tunnel release performed by Dr. Blanda was also unnecessary.

Additionally, Dr. Houser testified that he did not believe that Hatch suffered from seizures as a result of the accident, noting that she may not suffer from seizures at all. Given Hatch’s descriptions of her incidents with dealing with this issue, Dr. Houser believed she was likely suffering from fainting episodes which were not caused by this accident. He further indicated that Hatch underwent three EEG studies, all of which were read as normal.

IfiDr. Houser’s opinion was supported by the records of Dr. Diana Fernandez, who evaluated Hatch for seizures immediately [136]*136following the accident. Dr. Fernandez opined that Hatch’s symptoms were likely related to anxiety and panic and possibly syncope (fainting).

Defense expert psychiatrist, Dr. Rennie Culver, also testified that he agreed with Dr. Houser’s finding that Hatch had preexisting anxiety. Further, Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
127 So. 3d 132, 13 La.App. 3 Cir. 577, 2013 WL 6252420, 2013 La. App. LEXIS 2458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thibodeaux-v-ace-american-insurance-co-lactapp-2013.