Whitehead v. Fireman's Fund Ins. Co.

529 So. 2d 82, 1988 WL 63595
CourtLouisiana Court of Appeal
DecidedJune 22, 1988
Docket87-468
StatusPublished
Cited by7 cases

This text of 529 So. 2d 82 (Whitehead v. Fireman's Fund 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
Whitehead v. Fireman's Fund Ins. Co., 529 So. 2d 82, 1988 WL 63595 (La. Ct. App. 1988).

Opinion

529 So.2d 82 (1988)

Gail O. WHITEHEAD, et vir, Plaintiffs-Appellants,
v.
FIREMAN'S FUND INSURANCE COMPANY, Intervenor-Appellant,
James R. Texada, Defendant-Appellee.

No. 87-468.

Court of Appeal of Louisiana, Third Circuit.

June 22, 1988.
Writ Denied October 14, 1988.

*83 Wm. Henry Sanders, Jena, for plaintiffs-appellants.

Provosty, Sadler, de Launay, Ronald J. Fiorenza, Alexandria, for defendant-appellee.

Bolen & Erwin, Lauren Gay Coleman, Alexandria, for intervenor-appellant.

Before DOUCET, YELVERTON and KNOLL, JJ.

KNOLL, Judge.

We preface this opinion by pointing out to the reader that Gail O. Whitehead had two claims: one in tort and for worker's compensation benefits. In a separate opinion rendered by us in Gail O. Whitehead v. Fireman's Fund Insurance Company, 529 So.2d 88 (La.App. 3rd Cir.1988), we address Fireman's Fund's appeal of medical expenses in the amount of $15,812.74 awarded to Whitehead on a motion for partial summary judgment.

Gail O. Whitehead (hereafter Whitehead) and her husband, John Whitehead, sued James R. Texada (hereafter Texada) for injuries she received when Texada's vehicle rear-ended Whitehead's van which she was driving for her employer, Joubert Medical Transportation Service (hereafter JMTS). Texada admitted liability for the collision, and the determination of quantum was submitted to the jury. Fireman's Fund Insurance Company (hereafter Fireman's Fund) intervened, seeking reimbursement for the payment of weekly worker's compensation and medical benefits paid to Whitehead as a result of the accident, and submitted its claim for intervention to the trial judge for determination. The jury awarded Whitehead $10,500 for past physical pain and suffering, $10,500 for past mental anguish, distress and emotional disturbances, $13,000 for past medical expenses, and $4,250 for past loss of income; the jury also awarded John Whitehead $5,625 for loss of consortium. The trial judge awarded Fireman's Fund reimbursement of $17,500, but limited its recovery to the amount the jury awarded Whitehead for past medical expenses and past loss of income. Whitehead filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, but before Whitehead's motion could be ruled upon, Whitehead and Fireman's Fund moved for a devolutive appeal.

*84 Whitehead appeals the jury's damage award, contending that: 1) the trial court erred in failing to cast Texada, Inc. liable in the judgment; 2) the jury's award was inadequate; 3) the trial judge's award to Fireman's Fund erroneously included out-of-pocket expenses Whitehead paid; and, 4) the trial court erred in not granting Whitehead an expedited hearing on her motion for judgment notwithstanding the verdict, and ultimately not granting her motion for judgment notwithstanding the verdict. Fireman's Fund also appeals, joining Whitehead's argument that the jury's award was too low, and further contending that the trial judge's award to Fireman's Fund for reimbursement was incorrectly limited to Whitehead's award for past medical expenses and past loss of wages. Whitehead answered Fireman's Fund's appeal, arguing that it should share pro rata in the cost of her attorney's fees and expenses. For the following reasons we affirm.

FACTS

At 2 p.m. on September 19, 1985, Texada's brakes failed as he approached a stoplight in Alexandria, whereupon he collided with the rear-end of the JMTS van driven by Whitehead. The impact was slight.

It was undisputed that as the result of the rear-end collision Whitehead sustained a cervical strain that resolved itself without surgery between September 19, 1985, and February or March 1986. Texada admitted liability for the cervical strain, however, Texada denied liability for the tear to Whitehead's lumbar disc which ultimately required surgical intervention on June 19, 1986.

PARTY DEFENDANT

Whitehead contends that the judgment signed by the trial judge erroneously omitted Texada, Inc. as a defendant cast with liability for her damages. We disagree. From the appellate record it is clear that Whitehead did not name Texada, Inc. as a party defendant in her petition for damages.

MANIFEST ERROR

Whitehead and Fireman's Fund contend that the jury's award of damages was inadequate. They argue that since the jury made no award to Whitehead for future loss of wages or future pain and suffering, the only explanation is that it did not relate her low back injury to the accident of September 19, 1985. Texada argues that the essential question of fact presented to the jury was whether the accident was the cause of Whitehead's low back injury, and that the jury's resolution of that issue adverse to Whitehead is not manifestly erroneous. We do not find the jury verdict manifestly erroneous.

An appellate court should not disturb the trier of fact's damage award absent a determination that the fact-finder abused its discretion under the facts of the particular case. Benson v. Seagraves, 445 So.2d 187 (La.App. 3rd Cir.1984), writ denied, 447 So. 2d 1071 (La.1984). Although a defendant may admittedly be negligent, he is not liable for damages unless the negligence was the cause in fact of the particular personal injury. Connell v. Black, 260 So.2d 924 (La.App. 4th Cir.1972). In a personal injury suit the plaintiff has the burden of adequately proving a causal relationship between the accident and the injuries sustained. Richard v. Walgreen's Louisiana Co., 476 So.2d 1150 (La.App. 3rd Cir.1985). The test for whether the plaintiff has adequately provided such a causal relationship is whether the plaintiff demonstrated through medical testimony that, more probably than not, the medical treatment was necessitated by the injuries sustained in the accident. Polman v. Mohasco Corp., 371 So.2d 838 (La.App. 4th Cir.1978).

Whitehead testified that on the evening of the accident, she experienced stiffness in her neck, and that she worked the next day with pain in her neck and upper back. The following day, Whitehead was seen in the emergency room at LaSalle General Hospital by her family physician, Dr. Robert T. Kendrick, and on her own initiative began chiropractic care with Dr. Claus. Treatment by Dr. Claus consisted of adjustments, heat treatments, and electronic *85 stimulation. Dr. Claus was not called upon to testify at trial.

Dr. Kendrick testified that on the first occasion when he examined Whitehead on September 21, 1985, she was experiencing para-cervical muscle spasm, and his diagnosis was cervical strain. On October 3, 1985, Whitehead complained of pain in the upper back. On October 24, 1985, she had complaints of upper back pain, and Dr. Kendrick also noted that she had an occasional twinge of pain in the lower back. She again saw Dr. Kendrick on November 25, 1985; on this visit she told Dr. Kendrick that she had consulted a specialist and he had diagnosed her as having sustained a neck and cervical strain. Whitehead next consulted Dr. Kendrick on December 18, 1985, when she reported to him that although her neck was better, she was experiencing extreme pain between the shoulders, and she had some lower back discomfort on the left side. Dr. Kendrick last saw Whitehead on February 19, 1986, when she reported pain in the upper and lower back, shooting pain in the right hip and weakness in the knees. Dr. Kendrick's diagnosis was cervical strain and throracic pain, together with low back pain of unknown etiology.

On November 11, 1985, Dr. Raeburn C. Llewellyn, a neurological surgeon, examined Whitehead.

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Cite This Page — Counsel Stack

Bluebook (online)
529 So. 2d 82, 1988 WL 63595, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitehead-v-firemans-fund-ins-co-lactapp-1988.