Warner v. USAA Gen. Indem. Ins. Co.

237 So. 3d 1241
CourtLouisiana Court of Appeal
DecidedDecember 29, 2017
DocketNO. 17–CA–231
StatusPublished
Cited by1 cases

This text of 237 So. 3d 1241 (Warner v. USAA Gen. Indem. 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
Warner v. USAA Gen. Indem. Ins. Co., 237 So. 3d 1241 (La. Ct. App. 2017).

Opinion

WINDHORST, J.

Appellants, Larry and Ava Warner, appeal the trial court's February 2, 2016 judgment, rendered in accordance with the jury's verdict, and the trial court's August 8, 2016 judgment denying appellants' motion for new trial and/or judgment notwithstanding the verdict (JNOV). For the reasons that follow, we affirm.

Facts and Procedural History

On July 28, 2011, appellant, Larry Warner, was involved in a motor vehicle accident *1244in which Mr. Warner's 18-wheeler truck was hit by a vehicle driven by Patrick Alexis1 and was insured by USAA Casualty Insurance Company (USAA CIC). Mr. Warner filed a petition for damages contending that he sustained injuries as a result of the accident.2

During the trial on the merits, appellants' case consisted primarily of the testimony from Mr. Warner and the testimony from his treating physicians. The following testimony and evidence was elicited at trial.

Mr. Warner testified that on July 28, 2011, it was raining when he pulled up to the intersection at Mounes Street and South Clearview Parkway. A vehicle was in front of him when he stopped at the red traffic light. The light changed to green and he proceeded forward when he heard a noise and stopped his truck. He opened the door, attempted to grab the bar to get down, and in his words, "the bar was wet and the steps were wet. I fell out of the truck on my butt." He testified that he was in a hurry to get out when he grabbed the bar and that when he hit the ground, his buttocks went numb. On cross-examination, he acknowledged that his feet slipped off the steps because the steps were wet. He conceded that he previously testified in his deposition that he was not in a hurry, he did not mention grabbing the bar to get out of his truck, and when asked if he was injured when he fell he stated, "Counsel, I would suppose so."

Mr. Warner testified that he is 64 years old and has been driving trucks since 1975. He conceded that he had back pain prior to this accident and received treatment from Dr. James Antinnes with Southern Bone & Joint Specialists, P.A, in Hattiesburg, Mississippi. He first saw Dr. Antinnes in 2009 and 2010 for back pain. Dr. Antinnes ordered an MRI and recommended an epidural steroid injection (ESI), which was performed by Dr. Todd Sitzman. He testified that he did not treat with Dr. Antinnes or have any back pain between 2010 and this accident, and was able to return to work consistently. Mr. Warner further acknowledged that he previously received treatment at the Prentiss Family Medical Clinic (Prentiss) for back pain and was prescribed Lortab prior to his accident. The Prentiss medical records showed that he was diagnosed with sciatica in 2009, continued to receive treatment for it in 2010, and was prescribed additional pain medications. Mr. Warner also testified that he injured his shoulder in a separate accident and received treatment at Jefferson Orthopedic Clinic (Jefferson Orthopedic). He additionally received treatment at Ochsner for a torn ligament in his hand and an MRI for his shoulder from an injury unrelated to this case. He admitted that he was also having problems with his back at that time and was prescribed hydrocodone and tramadol.

Mr. Warner testified that he sought medical treatment approximately a week after the July 28, 2011 accident. He subsequently conceded that he was first sent to see Dr. Barry Bordonaro at Allied Adult and Child Clinic (Allied) by his attorney in *1245September 2011, six weeks after this accident. Dr. Bordonaro from September 2011 through March 2012, and received "back and heat treatment and shock." An MRI was performed in 2012. Mr. Warner acknowledged that Dr. Bordonaro's medical records did not mention this accident or that he had been involved in any other accidents in which he was injured.3 He testified that he was discharged from Dr. Bordonaro's care because the treatment did not help his pain and Dr. Bordonaro recommended that he see Dr. Antinnes. On cross-examination, Mr. Warner was confronted with his deposition, and conceded that he had previously stated in his deposition that his treatment with Dr. Bordonaro was helpful.

Mr. Warner next saw Dr. Antinnes. He saw Dr. Antinnes two times in 2012 and told him that his lower back and legs were giving him problems. He did not tell Dr. Antinnes that he had been involved in an accident. Dr. Antinnes ordered an MRI and Mr. Warner received an ESI and hydrocodone. He continued to see Dr. Antinnes through 2014, until Dr. Antinnes recommended surgery. Mr. Warner testified that he was afraid to have surgery at his age, and decided against it. Dr. Antinnes then increased his pain medication. He was last seen by Dr. Antinnes was November 18, 2014.

Mr. Warner stated he next saw Dr. Allen Johnston, at the Louisiana Orthopedic & Spine Institute (Louisiana Orthopedic), for the first time in June or July 2015. Dr. Johnston examined him and performed a procedure in which needles were inserted into his back. Since he received relief from the procedure for six days, Dr. Johnston recommended he have a "burn" procedure performed, which he declined because it was too expensive. Dr. Johnston then prescribed tramadol. On cross-examination, Mr. Warner acknowledged that he told Dr. Johnston that he had a few symptoms from May 2010 through July 2011, and it was raining when he got out of his 18-wheeler, slipped, and landed on his buttocks.

Mr. Warner testified that he decided on his own to stop working in September or October 2011. One of the reasons he could no longer work was because his "back, rear" would start to get numb. He was confronted with his deposition testimony in which he testified that he stopped working in August 2011, and that he had not worked in any capacity since the accident. Mr. Warner conceded that since his accident, he was not declared disabled by any of his doctors and no doctor told him that he should not or could not work. Mr. Warner was also confronted with his medical records dated after this accident, from Louisiana Orthopedic, Jefferson Orthopedic, and St. Elizabeth Physicians (St. Elizabeth) which conflicted with his testimony that he had numbness in his back and that he had stopped working shortly after this accident. His medical records stated that he did not inform his doctors that he had any numbness, he was allowed to drive, he continued to work as a driver after this accident, he did not list prior injuries on his medical forms, and he had no pain in his "spine, ribs, or pelvis."4 Mr. Warner *1246additionally admitted that he filed a claim for disability benefits related to an accident that occurred on June 15, 2011, six weeks prior to this accident on July 28, 2011. On the disability form dated April 20, 2012, Mr. Warner stated that on June 15, 2011, he "slipped and fell off top of trailer at work" and injured his "left shoulder and back." Mr. Warner stated that his last day of work was "part-time from June 17, 2011, stopped completely January 6." At trial, when asked if he meant January 6, 2012, Mr. Warner testified he could not say whether "January 6" referred to 2012.

Mr. Warner testified that as a result of his injuries he can no longer drive his personal truck and has lost personal income, which has financially impacted his life.

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Bluebook (online)
237 So. 3d 1241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warner-v-usaa-gen-indem-ins-co-lactapp-2017.