Touchard v. Slemco Electric Foundation

745 So. 2d 1232, 99 La.App. 3 Cir. 539, 1999 La. App. LEXIS 3246, 1999 WL 1037952
CourtLouisiana Court of Appeal
DecidedNovember 17, 1999
DocketNo. 99-539
StatusPublished
Cited by2 cases

This text of 745 So. 2d 1232 (Touchard v. Slemco Electric Foundation) 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
Touchard v. Slemco Electric Foundation, 745 So. 2d 1232, 99 La.App. 3 Cir. 539, 1999 La. App. LEXIS 3246, 1999 WL 1037952 (La. Ct. App. 1999).

Opinions

h SULLIVAN, Judge.

Mary Touchard sued Ted Breaux, State Farm Mutual Automobile Insurance Company, his liability insurer, and Southwest Louisiana Electric Membership Corporation (Slemco), his employer, for damages she sustained in a rear-end collision that occurred on April 1, 1996. Slemco was dismissed as a defendant prior to trial. After a trial on the merits, the trial court ruled that there were no injuries to Ms. Touchard caused by the fault of Mr. Breaux. Ms. Touchard appeals the trial court’s judgment dismissing her claims against Mr. Breaux. For the following reasons, we affirm in part, reverse in part, and render.

| ¡.FACTS

On April 1, 1996, Ms. Touchard drove her friend, Lucille Bellard, to Carenero, 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 Mr. Breaux. Mr. Breaux^ a Slemco employee, was on his way home for lunch at the time of the accident.

The facts of exactly how the accident occurred are in dispute. Slemco is situated on the service road adjacent to Interstate Highway 49 North in Carenero, Louisiana. 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.

Mr. Breaux admitted that he was at fault in the accident; however, he did not believe he was totally at fault. He testified that he saw Ms. Touchard’s car stopped at the stop sign and that he stopped behind her. 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. Touchard’s vehicle was already on the road when he hit her. At trial, Mr. Breaux testified that the day after the accident he thought that the accident may have happened because Ms. Touchard’s car, which had a manual transmission, was rolling backwards down the sloped driveway. On crossjexamination,3 Mr. Breaux agreed that the accident would not have happened if he would have remained stopped until Ms. Touchard exited the driveway.

Deputy Brett Pryor of the Carenero City Police Department investigated the accident. He questioned Ms. Touchard and Mr. Breaux about how the accident occurred. Mr. Breaux told Deputy Pryor that the accident happened when Ms. [1235]*1235Touchard was about to take off from the stop sign; she hesitated and stopped again; he anticipated her moving out of the area and proceeded forward striking her vehicle from the rear. Ms. Touchard testified that the accident occurred when she was at the stop sign and was hit from behind.

Prior to the April 1, 1996 accident, Ms. Touchard had been involved in five automobile accidents. She had received extensive medical treatment as a result of injuries received in those accidents, including psychiatric counseling, three back surgeries, treatment for a temporomandibular joint (TMJ) injury, and treatment for chronic lower back pain. Following the accident, Ms. Touchard sought treatment from Dr. David Dawes, a psychiatrist, and Dr. Ronald Segar, a family practitioner.

Dr. Dawes had been treating Ms. Touch-ard since 1993. He testified that she had some mental conditions that 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. Even so, he was emphatic in his opinion that the April 1, 1996 accident aggravated Ms. Touchard’s pre-existing post-trauma stress and depression. Ms. Touchard had seen Dr. Dawes on March 20, 1996, 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’s post-traumatic stress was aggravated in that she had Dmore nightmares, intrusive thoughts, and hyper-vigilance. He described her as being more distraught, more preoccupied, and more consistently tearful following the April 1,1996 accident. Dr. Dawes explained that Ms. Touchard experienced a recurrence of major depression after the accident which, in his opinion, was triggered by the April 1, 1996 accident. Dr. Dawes’ was questioned at length on cross-examination regarding his opinion that Ms. Touchard’s pre-existing, post-traumatic stress and depression were exacerbated by the accident. He never wavered in his opinion, testifying that “this accident made her worse off than she would have been if the accident never occurred.”

Ms. Touchard testified that immediately after the accident, she had a headache and tingling pain in her left hand. She also testified that there was a small cut on her left arm. Ms. Bellard confirmed that Ms. Touchard complained of a headache before they left the scene of the accident.

Ms. Touchard had her first appointment with Dr. Segar on April 4, 1996. She had not been treated by Dr. Segar before the April 1,1996 accident. Ms. Touchard complained to Dr. Segar of pain on the left side of her head immediately after the accident. She related that later she had neck pain, pain radiating down her trapezi-us 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, including the three back surgeries, the TMJ injury, and chronic low back pain. She complained to Dr. Segar that these prior conditions were aggravated by the accident. Dr. Segar treated Ms. Touchard with physical therapy, muscle relaxers, and pain relievers. He was of the opinion that Ms. Touchard had|sreached maximum medical improvement as of November 22, 1996, and he discharged her from his care at that time. In his opinion, her preexisting 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 that the pain, in these areas were approximately at the level they were before the accident. In Dr. Segar’s opinion, Ms. Touchard’s neck and trapezius pain did not predate the accident and were improved, but not completely alleviated, at the time of her discharge. His final diag[1236]*1236nosis was multiple myofascial strain of the cervical and trapezius areas and mid-back with aggravation of prior TMJ headaches and lower back. 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. Ms. Touchard testified that her injuries from the accident lasted about ten months.

Samuel Trahan, property claims re-inspector for State Farm, inspected Ms. Touchard’s vehicle for damage more than one month after the accident. In his opinion, the accident did not cause any damage to Ms. Touchard’s thirteen-year-old Toyota Corolla. On inspection, he found a broken tail-light but opined that it did not result from the April 1, 1996 accident because there was a buildup of mildew and slime inside the light. Ms.

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Related

Dugas v. Derouen
824 So. 2d 475 (Louisiana Court of Appeal, 2002)
Touchard v. Slemco Electric Foundation
769 So. 2d 1200 (Supreme Court of Louisiana, 2000)

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Bluebook (online)
745 So. 2d 1232, 99 La.App. 3 Cir. 539, 1999 La. App. LEXIS 3246, 1999 WL 1037952, Counsel Stack Legal Research, https://law.counselstack.com/opinion/touchard-v-slemco-electric-foundation-lactapp-1999.