Weber v. Brignac

568 So. 2d 1129, 1990 WL 161347
CourtLouisiana Court of Appeal
DecidedOctober 11, 1990
Docket90-CA-270
StatusPublished
Cited by8 cases

This text of 568 So. 2d 1129 (Weber v. Brignac) 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
Weber v. Brignac, 568 So. 2d 1129, 1990 WL 161347 (La. Ct. App. 1990).

Opinion

568 So.2d 1129 (1990)

Allen WEBER
v.
Terri BRIGNAC, Chris Brignac, Champion Insurance Company, St. John the Baptist School Board, and U.S. Fire Insurance Company.

No. 90-CA-270.

Court of Appeal of Louisiana, Fifth Circuit.

October 11, 1990.
Rehearing Denied November 16, 1990.

*1130 Becnel, Landry & Becnel, Daniel E. Becnel, Jr., Reserve, for Allen Weber, plaintiff-appellant.

Lobman, Carnahan and Batt, Edward P. Lobman, Lisa Montgomery Lewis, Metairie, for U.S. Fire Ins. Co., defendant-appellee.

Accardo, Edrington & Golden, William P. Golden, Jr., LaPlace, for Terri Brignac, Chris Brignac, Champion Ins. Co. and Louisiana Ins. Guar. Ass'n, defendants-appellees.

Before CHEHARDY, C.J., and GRISBAUM and GOTHARD, JJ.

CHEHARDY, Chief Judge.

This suit involves a van-school bus collision. At 7:30 a.m. on the morning of Friday, November 13, 1987, Terri Brignac was traveling in the family 1975 Dodge van with her husband and seven-year-old daughter as passengers. When she stopped for a stop sign the motor gave out. At the same time a school bus driven by Allen Weber and with 56 school children aboard stopped five to six feet behind the van. Mrs. Brignac was able to start her engine, but upon shifting gears she inadvertently put the van in reverse and it suddenly backed up and struck the front of the school bus. The investigating officer estimated the speed of the van on impact at two miles per hour and noted light damage to the bus.

Mr. Weber sued the Brignacs and their insurer Champion Insurance Company. He named as additional defendants St. John the Baptist Parish School Board and its uninsured motorist carrier, U.S. Fire Insurance Company. When Champion Insurance Company became insolvent, Louisiana Insurance Guaranty Association entered the suit on its behalf. The school board was never cast in judgment; its UM carrier was ultimately dismissed from the suit.

After a two-day bench trial the judge found that Mrs. Brignac's negligence was the sole cause of the accident and held her, her insurer and LIGA liable for damages. In explicit reasons for judgment he found that as a result of the accident Mr. Weber had suffered a neck sprain which aggravated his pre-existing cervical injury, disabled him for one month and caused him intermittent pain and discomfort for six months, through May 1988. The judge awarded plaintiff one month in lost wages, medical expenses for injury-related treatment and $3,000 in general damages, plus interest, costs, and expert fees.

Plaintiff Weber appeals the quantum verdict. He seeks: an increase in the general damage award; an award of additional medical expenses; and an increase in the award for economic losses.

The verdict is well supported by the facts of this case, preserved for review in the form of testimony and exhibits of record. We affirm the district court damage award.

Mr. Weber had a history of neck injury and irritation prior to the November 13, 1987 collision. In November 1981 he underwent an anterior cervical fusion at the hands of orthopaedic surgeon Dr. Raoul Rodriguez. Plaintiff enjoyed a good result with the disc surgery, but was left with degenerative changes in the discs and arthritis in part trauma related, in part a result of the natural aging process.

Plaintiff was treated conservatively by Dr. Rodriguez for whiplash-type injuries that he received in automobile collisions in December 1982 and March 1983. For the latter accident he was also seen for neck and shoulder pain by Dr. Christy Montegut.

During the next four years Mr. Weber was treated intermittently by these physicians for periodic neck and shoulder discomfort which Dr. Rodriguez related to degenerative changes.

In July 1984 Mr. Weber consulted Dr. Montegut for insomnia, and neck pain and stiffness upon waking. Dr. Montegut prescribed Ativan for sleep. The prescription was refilled in September 1985. In November 1985 the doctor diagnosed sinusitis in Mr. Weber.

*1131 In November 1986 plaintiff returned with complaints of pain and stiffness in the neck and upper chest after he did heavy raking. The doctor found cervical spasm and tenderness and prescribed Motrin. In January 1987 plaintiff consulted Dr. Montegut with complaints of severe shoulder pain aggravated by movement. The doctor diagnosed acute tendonitis and bursitis of the right shoulder. He administered an injection and advised rest and local heat.

In February 1987 Mr. Weber returned to Dr. Rodriguez for examination with complaints of pain in the neck radiating to the right arm. The doctor believed that plaintiff was experiencing nerve root irritation resulting from arthritis. Mr. Weber received an injection to reduce pain. He consulted the doctor twice in March for similar complaints and was given Naprosyn, an anti-inflammatory medication.

Dr. Rodriguez testified that because of the injury and fusion plaintiff's cervical area was sensitive to exertion. Plaintiff would have exacerbations of pain from time to time depending on his activity.

It is evident from medical history that Mr. Weber had neck weakness which resulted in periodic flare-ups of neck and shoulder pain. His course of treatment for each episode consisted of one to two office examinations and a prescription to reduce muscular inflammation and relax him.

In November 1987 as a result of the van-bus collision plaintiff presented with complaints of a painful neck and contusion to the left leg. On examination Dr. Rodriguez observed cervical muscle spasms. Plaintiff had a normal neurological examination. X rays reflected no recent fractures; they showed the same arthritic changes as were present before the accident. The doctor diagnosed a cervical sprain and prescribed Parafon Forte, a muscle relaxer. At his visit one month later Mr. Weber complained of a pulling pain in his neck on certain movements and headaches at the base of the skull. Dr. Rodriguez found plaintiff's range of motion improved and ordered a physical therapy regime. Plaintiff did not return for his follow-up appointment.

Dr. Rodriguez differentiated plaintiff's pre- and post-accident pain complaints. In early 1987 plaintiff complained of shoulder pain which the doctor related to arthritis resulting from the fusion. After the accident plaintiff complained of localized neck pain which Dr. Rodriguez believed resulted from a cervical sprain. He did not believe that plaintiff's shoulder complaints were caused by the van-school bus collision.

Plaintiff attended treatment with physical therapist Michael Murphy from December 1987 to May 1988. The therapy consisted of moist heat, ultra sound, cervical traction and neck massage. Plaintiff's complaints on presentation were pain across the neck to the right shoulder identical to the complaints of pain for which he had received therapy in 1982, 1983, 1984 and February 1987.

During therapy plaintiff consulted neurologist Dr. Maria Palmer on February 1, 1988 for complaints of neck pain specifically while driving, limited rotation, difficulty sleeping due to pain and stiffness, and blurred vision which he related to the November 1987 accident. He did not reveal the treatment for neck injuries in 1982 or 1983 treatment for recurrent pain and stiffness prior to the accident in 1987.

The doctor's physical examination revealed marked cervical spasm on the right and limited side to side motion of the neck. She agreed with the diagnosis of cervical sprain and with plaintiff's continued course of physical therapy. She prescribed anti-inflammatory drugs and muscle relaxers.

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568 So. 2d 1129, 1990 WL 161347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weber-v-brignac-lactapp-1990.