Wallace v. State Farm Mut. Auto. Ins. Co.

509 So. 2d 466, 1987 La. App. LEXIS 9232
CourtLouisiana Court of Appeal
DecidedApril 8, 1987
Docket86-417
StatusPublished
Cited by10 cases

This text of 509 So. 2d 466 (Wallace v. State Farm Mut. Auto. Ins. 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
Wallace v. State Farm Mut. Auto. Ins. Co., 509 So. 2d 466, 1987 La. App. LEXIS 9232 (La. Ct. App. 1987).

Opinion

509 So.2d 466 (1987)

John L. WALLACE, Plaintiff-Appellee,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Kenneth Lacaze, Defendants-Appellants.

No. 86-417.

Court of Appeal of Louisiana, Third Circuit.

April 8, 1987.
Writ Denied June 5, 1987.

*467 Jackson B. Bolinger, of Forrest and Lopresto, Lafayette, for defendants-appellants.

Richard M. Sandefer, Lafayette, for plaintiff-appellee.

Before LABORDE and YELVERTON, JJ., and CULPEPPER, J. Pro Tem.[*]

WILLIAM A. CULPEPPER, Judge, Retired, Pro Tem.

The issues presented by this appeal are whether the trial judge was correct in denying defendants' peremptory exceptions of prescription and whether the trial court abused its much discretion in awarding plaintiff $50,000.00 in general damages for disability, pain and suffering.

Plaintiff filed suit on November 15, 1984 for personal injuries suffered as a result of an auto accident occurring April 29, 1983. Plaintiff sued the driver of a car which turned left off a two way street, in front of plaintiff's vehicle. Defendant and his liability insurer filed peremptory exceptions of prescription, which exceptions were denied. Following a trial on the merits, judgment was rendered awarding plaintiff benefits for lost wages, medical expenses and disability, pain and suffering. Defendants now appeal the general damage portion of the plaintiff's award in the final court judgment and the judgment denying defendants' exceptions of prescription. We affirm.

FACTS

The force of the collision caused plaintiff to hit his head on and crack his car windshield, caused his knees to knock the car dashboard loose, and the steering wheel to bend where he was holding it. Plaintiff was wearing his seat belt, however, the force of the collision pulled the seat out of the floor. His vehicle was a total loss.

After the accident plaintiff arrived at work by taxi cab, but was believed to be unable to work and was sent home to recuperate. The day after the accident, on *468 Saturday, April 30, 1983, plaintiff called the Hamilton Medical Group and spoke with Dr. Olivier, complaining of neck pains. Dr. Olivier told plaintiff to come in Monday, May 2, 1983 if he continued to have problems.

Plaintiff was first examined by Dr. Hugh Larriviere, an orthopedic surgeon, of the Hamilton Medical Group on May 2, 1983. Dr. Larriviere continued to treat plaintiff up to the time of trial on this matter. At trial Dr. Larriviere testified that plaintiff reported pain in his neck from the left ear down to the trapezius and paraspinous muscles which began shortly after the accident but which had significantly decreased over a period of several weeks. Plaintiff also suffered pain as a result of a contusion of both knees, for which he was prescribed muscle relaxants, pain relievers, whirlpool baths and ice packs. Eventually, plaintiff's right knee became essentially normal. Plaintiff's left knee, however, began to show signs of chondromalacia, or a grating of the patella against the bones underneath during bending and extending. It is also possible that plaintiff suffered from a cartilage tear. Plaintiff testified he is unable to jog, ride a bicycle, play raquetball, or perform any activity that requires a constant bending of the knees. He suffers from a "popping" sound in his left knee when extending his knee and from pain along the medial joint line of the left knee. Dr. Larrivierre indicated during his testimony at trial that plaintiff's knee complaints were definitely consistent with his accident on April 29, 1983. Plaintiff also began suffering from leg and lumbosacral pains; however, Dr. Larriviere felt that due to their remoteness in time to the accident these pains were not related to the accident. When asked about plaintiff's future prognosis, Dr. Larriviere testified that he would assign plaintiff a 20% impairment of the left knee. Dr. Larriviere also testified plaintiff would retain this disability even if surgery were performed to reduce the grating of the knee, since cartilage would have to be removed from the knee, which in itself would amount to a disability.

Several days after the accident, plaintiff received notice by mail that Kenneth LaCaze had filed a claim with State Farm Mutual Automobile Insurance Company (hereinafter State Farm), the liability insurer of both plaintiff and Kenneth LaCaze. Plaintiff's property damage claim was settled shortly following the accident. Plaintiff and State Farm also began discussing plaintiff's personal injury claim in June 1983. State Farm requested and received from plaintiff wage loss statements in order to arrive at a figure for plaintiff's wages lost as a result of the accident.

State Farm also advanced plaintiff two sums of money, one for $1,000.00 and one for $1,500.00, for a total of $2,500.00, such amounts to be credited toward a final settlement of plaintiff's claim. One of these advancements is reflected by a receipt signed by plaintiff and dated July 25, 1983 showing a cash advance for partial wage loss of $1,000.00. At the bottom of the receipt is a statement which reads in part as follows:

"This amount is to be credited to any final settlement or to the amount payable under our policy for any judgment you may obtain as result of your accident on 4-29-83." And,
"You are hereby notified that no lawsuit can be maintained for injuries sustained in the above discribed accident after N/A, 19____."

Mr. Louis Nigreville, the State Farm insurance agent with whom plaintiff dealt exclusively, entered the "N/A" in the blank portion of the receipt. The receipt is entitled "Receipt for Expense Advance," underneath which title is the statement "This is Not A Release."

Between the date of the accident and April 1984, State Farm agent Louis Nigreville corresponded with plaintiff several times concerning settlement of plaintiff's personal injury claim. In a memogram from Mr. Nigreville to plaintiff, which was stamped June 20, 1983, Mr. Nigreville requested a physicians statement concerning plaintiff's claim. Another letter from Mr. Nigreville to plaintiff, which was undated, indicates that State Farm had received a physicians statement and had made an offer for settlement. The tone of this letter *469 indicates no sense of urgency concerning the time in which the claim could be settled. In a letter from Mr. Nigreville to plaintiff dated March 1, 1984, State Farm apparently reoffered their settlement value for plaintiff's personal injury claim of $3,600.00, which offer was rejected by plaintiff. The March 1, 1984 letter also indicates no sense of urgency concerning the period in which plaintiff's claim would remain open for negotiation. The final written correspondence from Mr. Nigreville to plaintiff was by letter dated April 4, 1984. This letter indicates that State Farm's settlement of $3,600.00 was still open and indicates that State Farm was still amenable to a reevaluation of plaintiff's claim if plaintiff could provide other pertinent medical information.

Testimony during plaintiff's deposition reveals that plaintiff was unaware of any particular time during which he was required to file suit concerning his claim, that Mr. Nigreville advised plaintiff to "take as long as you want to decide" concerning acceptance of State Farm's settlement offer, and that he was led to believe by the "N/A" on the July 25, 1983 receipt, quoted above, that there was no time limit for him to file a lawsuit.

The deposition of Louis Nigreville indicates, as does plaintiff's deposition, that plaintiff and Mr.

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