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

713 So. 2d 618, 97 La.App. 3 Cir. 1704, 1998 La. App. LEXIS 1110, 1998 WL 207886
CourtLouisiana Court of Appeal
DecidedApril 29, 1998
Docket97-1704
StatusPublished
Cited by7 cases

This text of 713 So. 2d 618 (White 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
White v. State Farm Mut. Auto. Ins. Co., 713 So. 2d 618, 97 La.App. 3 Cir. 1704, 1998 La. App. LEXIS 1110, 1998 WL 207886 (La. Ct. App. 1998).

Opinion

713 So.2d 618 (1998)

Michael W. WHITE, Plaintiff-Appellant,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.

No. 97-1704.

Court of Appeal of Louisiana, Third Circuit.

April 29, 1998.

*620 Lawrence N. Curtis, Lafayette, Sue Fontenot, Abbeville, for Michael W. White.

Preston D. Cloyd, Lafayette, for State Farm Mutual Automobile Insurance Company.

Wayne G. Zeringue, Jr., New Orleans, Suzanne Michele Ray, for Texaco, Inc.

Before WOODARD, AMY and GREMILLION, JJ.

WOODARD, Judge.

The plaintiff, Michael W. White (White), appeals the trial court's dismissal of the suit he brought against his automobile liability insurer, State Farm Mutual Automobile Insurance Company (State Farm), to recover underinsured motorist benefits for injuries he sustained in an automobile collision. For the reasons assigned below, we affirm.

FACTS

On November 7, 1992, Rhett Madere (Madere), the driver of a 1989 Dodge, rearended a 1985 Volvo driven by White, who was transporting his minor children at the time and had stopped at a red traffic light. White, thirty-nine years old at the time of the accident, was pursuing a degree in industrial technology at the University of Southwest Louisiana (USL).

White sought medical attention in December of 1992 from Dr. John Cobb (Dr. Cobb), an orthopedic surgeon at the Lafayette General Medical Center (Lafayette General), complaining of pain in his neck, left leg, and lower back area. Dr. Cobb later referred White to Dr. Michael Berard (Dr. Berard), a clinical psychologist. Neither of White's children sought medical treatment after the accident. White continued his academic studies at USL into the spring of 1994, and some time after moving to New Orleans, discontinued his education. He and his family are now residing in Texas.

White alleges that the accident aggravated a previous physical injury which he sustained in October of 1984 while working for Texaco, Inc. (Texaco) as a mechanic. After some pipes struck him, he developed pain in his left shoulder, which radiated into his lower back and the back of his leg. His emergency room physician was Dr. R. Miers of Lafayette General. White was unable to return to his position at Texaco, and in October of 1986, returned to Lafayette General with complaints of pain. He was subsequently treated by Dr. Michel Heard (Dr. Heard) and Dr. Luiz deAraujo (Dr. deAraujo), who later performed a lumbar microdiscectomy on him to reduce the pain. White was discharged with a herniated intervertebral disc. After moving to Monroe, he saw Dr. Luis Gavioli (Dr. Gavioli) from December of 1987 through May of 1992.

He also contends that the automobile accident aggravated a pre-existing anxiety disorder which surfaced after the Texaco incident. Before the automobile accident, White was under the care of Dr. David Hebert (Dr. Hebert), an internal medicine specialist, from September of 1987 to May of 1992, and was given medication such as Prozac for his condition.

Following the accident, Madere's liability insurer, Allstate Insurance Company (Allstate), settled with White and paid him the policy limit of $10,000.00. White then brought suit against his uninsured/underinsured motorist carrier, State Farm, and Texaco intervened seeking to recover benefits that it paid as a result of the work-related accident. On July 31, 1997, a jury found that White was not injured as a result of the November 7, 1992 accident. By judgment dated September 12, 1997, the trial court dismissed his claim and Texaco's intervention *621 with prejudice. White devolutively appeals from that judgment. Texaco has taken no action in this matter.

ASSIGNMENTS OF ERROR

White asserts the following errors on appeal:

1. The jury's finding that he was not injured in the November 7, 1992 automobile accident is clearly wrong.
2. The trial court erred in instructing the jury that it could consider the magnitude and nature of the automobile collision in determining the extent of his injuries without cautioning the jury that it should not attempt to measure his injuries in direct proportion to the degree of force of the collision, and that it should not consider the force of the collision as the only determining factor in assessing the severity of his injuries.
3. The jury erred in failing to award damages.

LAW

As liability was stipulated to in this case, the only issues on appeal are that of causation, that is, whether White sustained injuries as a result of the November 1992 accident (and if so, the damages to be awarded) and whether the trial judge failed to properly instruct the jury on the issue of force of impact.

It is well settled that a court of appeal may not set aside a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong." Rosell v. ESCO, 549 So.2d 840 (La.1989). However, White urges that another standard of review may be applicable in this case since one of the assignments of error alludes to an erroneous jury instruction. When a reversible error of law is committed, an appellate court must "redetermine the facts de novo from the entire record and render a judgment on the merits." Rosell, 549 So.2d at 850 n. 2 (citations omitted). See also Lasha v. Olin Corp., 625 So.2d 1002 (La.1993). Therefore, in order to ascertain the correct standard of review to apply in this case, we must first determine whether the jury was erroneously instructed.

JURY INSTRUCTIONS

The trial court instructed the jury that "[t]he magnitude and nature of an automobile accident is a fact which may be considered by a jury in determining whether the plaintiff was injured in that accident." White asserts that the trial court should have also cautioned the jury that it should not attempt to measure his injuries in direct proportion to the degree of force of the collision and that it should not consider the force of the collision as the only determining factor in assessing the severity of his injuries.

In determining whether the judge carefully instructed the jury, we note that "[t]he trial judge is under no obligation to give any specific jury instructions that may be submitted by either party; he must, however, correctly charge the jury." See Doyle v. Picadilly Cafeterias, 576 So.2d 1143, 1152 (La.App. 3 Cir.1991) (citation omitted). Adequate jury instructions are those which "fairly and reasonably point up the issues and provide correct principles of law for the jury to apply to those issues." See Lee v. Automotive Cas. Ins. Co., 96-517 (La.App. 3 Cir. 11/6/96); 682 So.2d 995, 997, writ denied, 96-2949 (La.1/31/97); 687 So.2d 409 (citation omitted). Great restraint must be exercised before overturning the jury's verdict in this case "unless the proposed jury instructions are so incorrect or inadequate as to preclude the jury from reaching a verdict based on the law and the facts." Id. (Citation omitted.)

We first note the discretionary nature of this instruction. The trial court instructed the jury that it "may" consider the force of the accident in determining whether White was injured in the accident. In addition, the jury charge given was an accurate statement of the law. This court has "held that the minimal or minor nature of an automobile accident is a fact which may be considered by the jury." Fletcher v. Langley, 93-624 (La. App. 3 Cir. 2/2/94); 631 So.2d 693, 695, writ denied, 94-521 (La.4/7/94); 635 So.2d 1139 (citations omitted). See also Coleman v. U.S. Fire Ins. Co., 571 So.2d 213 (La.App.

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713 So. 2d 618, 97 La.App. 3 Cir. 1704, 1998 La. App. LEXIS 1110, 1998 WL 207886, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-state-farm-mut-auto-ins-co-lactapp-1998.