Ursin v. Russell

979 So. 2d 554, 2008 WL 331178
CourtLouisiana Court of Appeal
DecidedFebruary 6, 2008
Docket07-CA-859
StatusPublished
Cited by9 cases

This text of 979 So. 2d 554 (Ursin v. Russell) 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
Ursin v. Russell, 979 So. 2d 554, 2008 WL 331178 (La. Ct. App. 2008).

Opinion

979 So.2d 554 (2008)

Anya N. URSIN, Linda Ursin, and Sean Long on behalf of his Minor Son, Shemar Long
v.
Michael E. RUSSELL, Indian River Transport Company, and Continental Casualty Company.

No. 07-CA-859.

Court of Appeal of Louisiana, Fifth Circuit.

February 6, 2008.

*556 Samuel J. Accardo, Jr., Attorney at Law, LaPlace, Louisiana, for Plaintiff/Appellees.

Gregory W. Roniger, Attorney at Law, Metairie, Louisiana, for Defendant/Appellant.

Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.

WALTER J. ROTHSCHILD, Judge.

Defendants appeal a trial court judgment awarding damages to plaintiffs in this personal injury case arising from a motor vehicle accident. For the reasons set forth below, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

This case arises from a motor vehicle accident that occurred on December 30, 2005. Anya Ursin was operating her 1998 Honda Civic with her mother, Linda Ursin, as the front seat guest passenger and her one year old nephew, Shemar Long, in a car seat in the back seat. Anya was stopped at the intersection of U.S. 61 (known as Airline Hwy.) and LA 3188 (known as Belle Terre Blvd.) when her vehicle was struck from behind by a tractor/truck driven by Michael Russell while in the course and scope of his employment with Indian River Transport Company.[1] On June 6, 2006, plaintiffs, Anya Ursin, Linda Ursin, and Sean Long, on behalf of his minor son, Shemar Long, filed suit against Michael Russell, Indian River Transport Company, and its insurer, Continental Casualty Company, seeking damages as a result of this accident.

Trial of this matter was held on May 14, 2007. At the beginning of trial, the parties made the following stipulations:

1) No claim exceeds the $50,000 threshold amount for a jury trial.
2) Defendants are liable for any damages caused by the accident; the driver, Michael Russell, was in the course and scope of his employment with Indian River Transport Company at the time of the accident; and the liability insurance policy provided by Continental Casualty Company has limits which are in excess of the jurisdictional stipulation that no claim exceeds $50,000.
3) The medical bills and reports for each plaintiff are authentic.

Although the parties stipulated to liability and the authenticity of plaintiffs' medical bills and reports, defendants argued at trial that the accident was so minor that plaintiffs could not have suffered any damages as result of the accident.

At trial, Anya Ursin testified that she was driving her Honda Civic on December 30, 2005 with her mother, Linda Ursin, and nephew, Shemar Long, as guest passengers. She was stopped at a red light when they were suddenly struck from behind by an eighteen-wheeler. She stated that she had her foot on the brake and that she pushed the brake harder as her vehicle was being pushed forward by the truck. Anya[2] identified her vehicle in photographs *557 taken after the accident. She testified that in addition to the damage to the bumper shown in the photographs, she had "damage under the hood from me hitting on the brakes so hard and the car also being pushed with my foot on the brakes." Anya asserted that the accident had more than a minor impact and that it caused her nephew's car seat to "fly" into the back of her seat. She further stated that a harness strap on the car seat actually broke during the accident, but no pictures of the broken harness strap were taken and the car seat was later thrown away.

Anya testified that she went to the hospital via ambulance after the accident where she complained of neck and back pain, and she was advised to consult with her doctor. She stated that she was referred to Dr. Dale, a chiropractor, by her attorney, and she treated with him from January 12, 2006 to July 6, 2006, approximately six months, primarily for neck and back pain. She was treated three times per week at first, but then dropped down to two times per week. In the last month and a half of treatment, she usually went one time per week. Anya testified that during her six months of treatment, her pain was a seven or eight on a scale of one-to-ten, with ten being the worst. However, she also testified that she was not restricted from any type of activities during the time that she was experiencing pain as a result of the accident. She testified that as of the date of trial, she still had neck pain at times. Anya indicated that her medical bills totaled $3,325.00.

On cross-examination, Anya testified that in addition to the black mark on her bumper that can be seen in the photographs, her car had scratches and the undercarriage bumper strap was broken as a result of the accident. Anya admitted that her medical records of treatment with Dr. Dale indicate that she and her mother had mostly the same soft tissue injury complaints and that she and her mother stopped treatment within one day of each other. However, she asserted that she and her mother did not talk about their symptoms prior to treating with Dr. Dale. Anya stated that she stopped treating with Dr. Dale because she had to go to college.

Linda Ursin testified that on December 30, 2005, she was guest passenger in a vehicle driven by her daughter, Anya Ursin, when they were struck by an eighteen-wheeler. She stated that when the accident occurred, Shemar's car seat went into the back of Anya's seat and the strap on his car seat broke, though they did not notice the broken strap until a couple of days later. She indicated that after the accident, Shemar was "just staring till they got ready to come get him out of the car and he started screaming and hollering." Shemar was taken to the hospital by ambulance. Linda stated that as a result of the accident, she suffered injuries to her back, neck, and right shoulder. She testified that she started treating with Dr. Dale three times per week primarily for neck and back pain, and she treated with him until June or July 2006. She stated that she and Anya did not discuss their injuries with each other. She admitted that she and Anya were treated for basically the same injuries and they were discharged within a day of each other.[3]

Linda testified that she saw her family physician, Dr. Turner, on January 3, 2006, and she complained of back pain. She did not tell Dr. Turner that her hip, neck, shoulder or arm were hurting at that time. When she saw Dr. Dale a couple of weeks after the accident, her hip, neck, arm and shoulder had started hurting.

*558 Linda testified that she was in a subsequent accident on February 8, 2006, but she asserted that she did not feel any worse after the second accident. She indicated that the impact in the accident in the present case was greater than the impact in the February 2006 accident. Linda admitted that she went to the hospital as a result of the February 2006 accident, and Allstate paid her $1,500, though she did not make any demand on Allstate for money.

Inette Ursin testified that she is Shemar's mother and Sean Long is his father. She stated that she noticed that a harness strap on Shemar's car seat was broken a couple of days after the accident, so she threw it away. On the date of accident, after Shemar was released from the hospital, they went home. She undressed him to give him a bath and noticed that he had the imprint of the car seat straps on his chest. He was one year old at the time of the accident.

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979 So. 2d 554, 2008 WL 331178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ursin-v-russell-lactapp-2008.