Touchard v. Slemco Electric Foundation

769 So. 2d 1200, 2000 La. LEXIS 2734, 2000 WL 1538629
Supreme Court of Louisiana·Decided October 17, 2000·No. 99-C-3577·Published·Cited by 40 cases

Opinion

769 So.2d 1200 (2000)

Mary B. TOUCHARD
v.
SLEMCO ELECTRIC FOUNDATION, et al.

No. 99-C-3577.

Supreme Court of Louisiana.

October 17, 2000.

*1201 Kenneth Wayne Jones, Jr., Terry L. Rowe, Lafayette, Counsel for Applicant.

John Henri Pucheu, Eunice, Counsel for Respondent.

Troy E. Bain, Shreveport, Counsel for Louisiana Trial Lawyer's Association, Amicus Curiae.

ON REHEARING

TRAYLOR, Justice.

In this personal injury suit, we are presented with the issue of whether the Court of Appeal, Third Circuit, properly applied the manifest error standard of review. After a review of the record and the applicable law, we find that the court of appeal misapplied the manifest error standard. Accordingly, for reasons set forth herein, we reverse the judgment of the court of appeal and reinstate the trial court's judgment.

FACTS AND PROCEDURAL HISTORY

On April 1, 1996, plaintiff, Mary Touchard drove her friend, Lucille Bellard, to Carencro, Louisiana, to pay her SLEMCO electric bill. As Ms. Touchard was exiting the SLEMCO parking lot, her car was hit from behind by a pickup truck driven by Ted Breaux.

Ms. Touchard and Ms. Bellard testified that the accident occurred when Ms. Touchard was stopped at a stop sign posted on a driveway exiting the SLEMCO parking lot onto the service road. They both testified that Ms. Touchard's car was pushed into the service road adjacent to the parking lot. When asked to describe the impact, Ms. Touchard responded that impact made a loud noise. Conversely, Mr. Breaux maintained that he heard little to no noise upon impact. Ms. Touchard declined to have an ambulance called and reported to Ms. Bellard that she had a headache.[1]

Mr. Breaux admitted that he struck Ms. Touchard from the rear. However, he did not believe that he was totally at fault. According to Mr. Breaux, Ms. Touchard started forward, "like she was taking off in a normal fashion." He looked to the left to make sure the road was clear of traffic and took his foot off of the brake; he did not put his foot on the accelerator. Mr. Breaux testified that when he turned his head forward again, Ms. Touchard was right in front of him. He described the impact as a slight touch. Mr. Breaux denied that he pushed Ms. Touchard's car into the service road, testifying that Ms. *1202 Touchard's vehicle was already on the road when he hit her.[2]

As a result of the accident, Ms. Touchard filed suit against Ted Breaux; State Farm Mutual Insurance Company, Mr. Breaux's liability insurer; and Southwest Louisiana Electric Membership Corporation (SLEMCO), Mr. Breaux's employer. SLEMCO was dismissed prior to trial, leaving only State Farm and Mr. Breaux as defendants. Ms. Touchard maintained that she sustained both physical and mental injuries as a result of this accident.

Ms. Touchard has a long history of physical and mental complaints dating back to her first automobile accident 1961. As a result of the 1961 accident, Ms. Touchard suffered a fractured cervical vertebra. Four years later, in 1965, Ms. Touchard was involved in a second accident in California in which she suffered a concussion, whiplash, chest wall contusions and a severe traumatic lumbosacral strain. The third accident occurred in 1972 wherein Ms. Touchard was diagnosed with a concussion, cervical and lumbar strain. It was in 1972 that Ms. Touchard had her first surgery. Throughout the 1970's Ms. Touchard continued to complain of sciatic, lumbar and cervical pain; and in 1979, she underwent a second surgery. In addition to the physical treatment, Ms. Touchard also acknowledged to being admitted to the State Mental Hospital at Pineville for drug and alcohol abuse in 1976.

Throughout the 1980's Ms. Touchard continued to suffer severe pain, much of which caused her to be irritable and moody. In 1987, Ms. Touchard was admitted to a clinic for drug and alcohol abuse as a result of the significant amount of pain medication taken. She also was involved in her fourth accident in September of that year.

In June 1993, Ms. Touchard was admitted to Cypress Hospital for psychological counseling as a result of her attempting to take her life. Upon release, she began seeing Dr. David Dawes, a psychiatrist. Dr. Dawes testified that Ms. Touchard suffered an anxiety disorder, as well as post traumatic anxiety, and a depression disorder that was a direct result of the pain which she had endured over the past fifteen years. After reviewing Ms. Touchard's extensive medical history, we have no doubt that she suffered from both physical and mental injuries prior to the April 1, 1996 accident. However, it is a determination for the factfinder to discern whether Ms. Touchard suffered an aggravation of her pre-existing conditions.

During trial, several witnesses testified regarding Ms. Touchard's prior medical history. Dr. Ronald Segar, a family practitioner, who Ms. Touchard began seeing after the 1996 accident, testified regarding her physical condition. While Dr. Dawes, her psychiatrist, testified regarding Ms. Touchard's prior mental history.

At the initial consultation on April 4, 1996, Ms. Touchard complained to Dr. Segar of pain on the left side of her head immediately after the accident.[3] She related that later she had neck pain, pain radiating down her trapezius muscles going into her shoulders, arm pain, soreness in the chest area, lower back pain, and a headache. Dr. Segar testified that the only visible evidence of trauma to Ms. Touchard was the cut on her left arm. Ms. Touchard made Dr. Segar aware of her prior medical treatment, and complained to Dr. Segar that these prior conditions were aggravated by the accident. Dr. Segar treated Ms. Touchard with *1203 physical therapy, muscle relaxers, and pain relievers. He was of the opinion that Ms. Touchard had reached maximum medical improvement as of November 22, 1996, and he discharged her from his care at that time.

In his opinion, her pre-existing conditions of lower back pain, TMJ, and headaches were aggravated by the accident. At the time that he discharged her, Dr. Segar testified that Ms. Touchard felt the pain in these areas was approximately at the level as before the accident. He testified that her complaints were consistent with the type of injury expected to result from a rear-end collision and that her complaints following the accident were more probably than not caused by the accident. However, all objective testing conducted established that Ms. Touchard's condition was nearly the same as before the accident.[4]

Dr. Dawes also testified on behalf of Ms. Touchard. He stated that he had been treating Ms. Touchard since 1993. He testified that Ms. Touchard had a mental condition which pre-existed the April 1, 1996 accident. In fact, as of December 19, 1995, Dr. Dawes was of the opinion that Ms. Touchard would need psychiatric care indefinitely. Specifically, Dr. Dawes testified that Ms. Touchard had suffered from post-traumatic stress as early as 1993. Ms. Touchard had seen Dr. Dawes on March 20, 1996, two weeks prior to the accident which forms the basis of this suit, for an office visit. Before the accident, she had office visits with Dr. Dawes once every three months. Her visits increased to one visit every two months after the accident. Dr. Dawes testified that Ms. Touchard complained that she had more nightmares, intrusive thoughts, and hyper-vigilance since the accident. He described her as being more distraught, more preoccupied, and more consistently tearful following the April 1, 1996 accident. Dr.

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Touchard v. Slemco Electric Foundation, 769 So. 2d 1200, 2000 La. LEXIS 2734, 2000 WL 1538629 (La. 2000).

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