Westley v. Allstate Ins. Co.

905 So. 2d 1127, 2005 WL 1278445
CourtLouisiana Court of Appeal
DecidedMay 31, 2005
Docket05-CA-100
StatusPublished
Cited by11 cases

This text of 905 So. 2d 1127 (Westley v. Allstate 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
Westley v. Allstate Ins. Co., 905 So. 2d 1127, 2005 WL 1278445 (La. Ct. App. 2005).

Opinion

905 So.2d 1127 (2005)

Darlisha WESTLEY, Individually and on Behalf of her Minor Child, Diamond Lewis
v.
ALLSTATE INSURANCE COMPANY, Reliable Soil Co., Inc. and Elaine Peck.

No. 05-CA-100.

Court of Appeal of Louisiana, Fifth Circuit.

May 31, 2005.

*1129 Frank M. Buck, Jr., New Orleans, LA, for Plaintiff/Appellant.

Ronald K. Bell, New Orleans, LA, for Defendant/Appellee.

Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and CLARENCE E. McMANUS.

THOMAS F. DALEY, Judge.

In this civil appeal, the plaintiff/appellant, Darlisha Westley, individually and on behalf of her minor child, Diamond Lewis, appeal the trial court's general damage award, failure to award all proven medical special damages and past lost wages, and to assess all costs to the defendants.

On May 1, 2001, Ms. Westley and her six-month-old daughter, Diamond Lewis, were involved in a motor vehicle accident, in which they were rear ended by a vehicle owned by Reliable Soil Company, Inc. ("Reliable") and operated by the defendant, Elaine Peck, the owner of Reliable, while stopped at the intersection of Third and Pollack streets.[1] The Motor Vehicle Crash Report filled out by the Officer R. Roy of the Kenner Police Department indicates that Ms. Peck[2] was cited for following too closely after she admitted to the officer that she stopped suddenly to make a left turn and was too close to avoid impact. Both vehicles sustained minor to moderate damage, and were able to be driven from the scene of the accident.

On April 11, 2002, Darlisha Westley, individually and on behalf of her minor child, Diamond Lewis[3], filed a Petition for Damages against defendants Allstate Insurance Company, and its insureds, Reliable Soil Company and Elaine Peck, after their amicable *1130 demand was refused.[4] The plaintiffs alleged that the sole and proximate cause of the accident was the negligence and fault of Ms. Peck, individually, and her employer, Reliable, under respondeat superior. Specifically, the plaintiffs alleged that Ms. Peck was negligent in following too closely; driving recklessly; and failing to see what should have been seen, post a proper lookout, use due care under the circumstances, and operate the vehicle in a careful and prudent manner. The plaintiffs, further, claimed that as a result of the accident, they suffered injuries to their minds and bodies entitling them to compensatory damages for disfigurement, and past and future physical and mental pain and suffering, medical expense, impairment of earning capacity, loss of enjoyment of life, hedonic damages, and disability.

In his April 24, 2004 deposition, Dr. William S. Berman, an expert of 20 years in the field of chiropractic medicine, testified that on May 2, 2001 he initially saw Darlisha Westley and that he saw her on a "pretty regular" basis through March of 2004. She missed some appointments for monetary reasons. During her first appointment she complained that her neck and left shoulder were bothering her since the accident. She reported no past history of complaints. He testified that Ms. Westley had cervical and left shoulder strains and sprains, as a result of the accident, that consequently caused scar tissue to develop in her neck and has continued to develop scar tissue in the musculature in and around her shoulder, which has limited her range of motion and led to the rapid onset of severe chronic symptoms. Dr. Berman testified that he released Ms. Westley from active therapy to supportive or maintenance care on November 9, 2001 because he felt she had reached her maximum medical improvement. She had ceased to improve any further in regard to what he could offer her, but continued to have intermittent symptomology, spasms in her neck and left shoulder, while at work for which he provided monthly maintenance or supportive care. He did believe, however, that she would have benefited from physical therapy on her shoulder. The total cost of the active therapy to help her reach maximum chiropractic improvement was $3,305.00, which included a narrative report. Dr. Berman testified that he has not been paid for these services. In addition, Dr. Berman intimated that he charged her a reduced fee of $15.00 per visit for Ms. Westley's maintenance care, because of her financial situation that caused her to have to pay out of pocket. Ms. Westley attended 30 maintenance or supportive care visits. She missed as many as four visits in a row, because of her financial situation. Dr. Berman testified that Ms. Westley's shoulder pain is going to be continuous, but does not prevent her from working as a domestic, although he has had to take her off of work on numerous occasions, at her request.[5] Dr. Berman testified that Ms. Westley's time off from work was needed for her to do her range of motion exercises at home and at the clinic, in order to prevent any further damage from work-related physical stress caused by domestic service. Dr. Berman testified that the negative MRI(s) for significant underlying pathology of Ms. Westley's *1131 cervical spine and left shoulder did not mean that she does not have an underlying injury. He opined that she had calcified tendonitis that would not be seen on an MRI.

At trial, Dr. Bradley Bartholomew, a neurosurgeon, testified that he saw Darlisha Westley on two occasions, September 20th and November 8th of 2001. He testified that during Ms. Westley's initial visit, she described her neck pain as non-activity related, occurring only every once in a while with no upper extremity symptoms. He also noted that she reported she had back pain, which had resolved under the treatment of Dr. Berman[6], a chiropractor. Ms. Westley had previously had MRI of her shoulder, which was interpreted as normal. Dr. Bartholomew ordered an MRI of her cervical spine, which was also interpreted as normal.[7] He diagnosed her with left sided neck pains to the left shoulder that came and went, left side neck spasms in the trapezius area, and cervical sprain or strain. He determined that Ms. Westley did not need a neck operation. He testified that on her last visit, it appeared that injury to her neck appeared to be resolving, and any follow up visits were recommended on an as need basis. He never saw her again. Dr. Bartholomew testified that generally a cervical sprain or strain takes three to six months to heal, but could become chronic. In addition, he agreed that the trauma from the accident was the cause of Ms. Westley's symptoms, and necessitated the appropriate reasonable medical care, i.e. conservative management treatment she received from Dr. Berman, especially since she was not a surgical candidate. Dr. Bartholomew testified that under the treatment of Dr. Berman, Ms. Westley received symptomatic relief, which cleared up her back pain and appeared to be making her neck pain less frequent.

Darlisha Westley, a twenty-seven year old mother of two children[8], testified that she is currently a stock clerk, at Winn Dixie[9], but at the time of the accident, she worked as a Custodian I in housekeeping at the Treasure Chest Casino, cleaning restrooms and the casino floor for $7.30 per hour. Ms. Westley testified that at the time she was rear-end by the defendant, Elaine Peck, she had made a complete stop at Pollack and Third, but had her left turn signal on because she was getting ready to make a left turn. She testified that the impact did not move the car even one inch, nor did it cause her body to hit anything inside of the car. She had her seat belt on and did not sustain any cuts and bruises.

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Cite This Page — Counsel Stack

Bluebook (online)
905 So. 2d 1127, 2005 WL 1278445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/westley-v-allstate-ins-co-lactapp-2005.