Williams v. Williams

774 So. 2d 296, 99 La.App. 4 Cir. 2156, 2000 La. App. LEXIS 2802, 2000 WL 1694025
Procedural entryThis page is a short order in Williams v. Williams. Read the opinion of the Court — 760 So. 2d 469
Louisiana Court of Appeal·Decided November 8, 2000·No. No. 99-CA-2156·Published

Opinion

11 JONES, Judge.

Plaintiffs/appellants, Patricia Williams, Anna Solomon and Margaret Lacy, appeal the judgment of the trial court, which awarded each plaintiff general damages in the amount of $28,000, $20,000 and $30,000 respectively. The defendants Wendell Williams and Seven C’s Investments answered the appeal seeking to have the judgment amended to delete Continental Casualty Insurance Company from the list [298]*298of defendants since it was not a legitimate party to the litigation. After reviewing the record, we amend the judgment to delete Continental Casualty Insurance Company and affirm the judgment as amended.

FACTS

On July 26, 1996, Patricia Williams was operating her 1993 Pontiac automobile when a tractor-trailer driven by Wendell Williams struck her vehicle in the right front quarter near the passenger side door. The incident occurred when Wendell Williams failed to stop for a stop sign on Thayer Street and subsequently struck Ms. Williams’s vehicle. The tractor-trailer was owned by Seven C’s Restaurant, which was doing business as F. Christina Company, Inc., a division of Congra Poultry.

| ¡¿Because neither party disputed liability, the parties proceeded to a bench trial on the issue of damages. Following trial, the trial court found in favor of the plaintiffs, and against the defendants, Wendell Williams, F. Christina & Company and Continental Casualty Insurance Company. The trial court then awarded general damages to the plaintiffs, Patricia Williams, Anna Solomon and Margaret Lacy, in the amounts of $28,000, $20,000 and $30,000, respectively. From this judgment, the plaintiffs filed the instant appeal. The defendants also filed an answer to the appeal, requesting that Continental Casualty Insurance Company be deleted from the judgment because the damages did not exceed the insurance deductible under F. Christina & Company.1

INSUFFICIENCY OF DAMAGES

In their sole assignment of error, the plaintiffs argue that the general damage awards were insufficient in light of the extent and duration of their injuries. The defendants, on the other hand, argue that the general damage awards were adequate and consistent with the overall medical condition of each plaintiff following the July 1996 accident. We agree.

Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Courteaux v. State ex rel. Dept. of Transp., 99-0352, 99-0353 (La.App. 4 Cir. 9/22/99), 745 So.2d 91, 98, writ denied, 2000-3214 (La.1/28/00), 753 So.2d 834. Appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo. Id. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable \ evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. King v. Sewerage & Water Bd., 99-0382 (La.App. 4 Cir. 11/24/99), 747 So.2d 200. (Emphasis added). Thus, this Court is limited to the information included in the record when deciding whether the district court was correct in its judgment. Id.

MARGARET LACY

Ms. Lacy, a 55-year-old nurse technician at Methodist Hospital, was positioned in the back seat of Ms. Williams’ vehicle when the collision occurred. She sustained injuries to her neck, lower back, both wrists and shoulders. She also complained of headaches, and pain in her shoulders, neck and back. She underwent treatment with Dr. Essam Elmorshidy, a certified orthopedist, from August 1996 to November 1998, and later continued treatment with Dr. S. Daniel Seltzer after Dr. Elmorshidy was killed in an automobile accident.2

[299]*299Ms. Lacy testified that this was the first time she had experienced severe pain in her wrist. She further testified that her subsequent condition has restricted her duties as a nurse technician, hindered her recreational activities, interfered with her sleep, and had aggravated her asthmatic condition. In conjunction with her claim for general damages, Ms. Lacy claimed damages for loss wages, medical bills and prescriptions.

On cross-examination, Ms. Lacy testified she was also diagnosed with muscular strain in her cervical spine following a 1985 automobile accident. She 14admitted to being treated for acute para cervical muscle strains following a 1993 automobile accident. Ms. Lacy testified that Dr. El-morshidy prescribed three weeks of physical therapy for her in February 1997, but the record indicates that she did not attend therapy until May 1997. Additionally, Ms. Lacy conceded that Dr. Elmorshidy had issued a certificate to her employer indicating that she was able to return to work because she “had recovered sufficiently to be able to return to work.”

Although she recalled twisting her arm and hand during the impact, Ms. Lacy did not inform Mr. Elmorshidy about the pain in her hands or wrists during his first physical examination in August 1996. In fact, the patient medical history form, which she filled out one week after the accident, reflects that Ms. Lacy did not strike her hand or wrist on any object in the car. It also states that she had her seatbelt on at the time of the impact. Even though Dr. Seltzer recommended future surgery to her right wrist, Ms. Lacy testified that Dr. Seltzer did not examine her right wrist when she initially complained about wrist pain in December 1998. Her testimony at trial also contradicted her deposition testimony in which she stated that she did not have any complaints with her right hand.

a. Plaintiffs’ Expert Witness

Dr. Seltzer, the plaintiffs’ expert witness in orthopedics, testified that Ms. Lacy’s medical records indicated that she had consistent complaints of muscle spasms in her cervical and lumbar spines during her treatment with Dr. Elmorshidy. According to Dr. Seltzer, Dr. Elmorshidy took X-rays of Ms. Lacy’s neck and back, prescribed a neck, back and a wrist brace for her to wear everyday, and he issued several prescriptions for pain medication.

1 RPr. Seltzer also testified that approximately six months after the accident, Dr. Elmorshidy diagnosed Ms. Lacy with bilateral carpal tunnel syndrome after she complained to him about the “excruciating” pain she was encountering in her wrist. Therefore, in April 1998, Ms. Lacy underwent carpal tunnel surgery on her left hand at Methodist Hospital. Following the surgery, Dr. Elmorshidy diagnosed Ms. Lacy with subligamentous herniation of the C3-C4 disc and mid-line posterior herniation of the C4-C5 disc.

When Dr. Seltzer began treating Ms. Lacy following Dr. Elmorshidy’s death, he reviewed her medical records and concurred with Dr. Elmorshidy’s findings. He also assessed her an anatomical disability rating of 15% for the cervical injury, and 10% disability rating for the lumbar injury. Since Dr. Seltzer testified that Ms. Lacy’s herniated disc was a permanent condition, he restricted her from activities which would require her to lift more than 15 pounds, extend her neck for prolonged periods of time, or repeat various types of manipulative functions with her hands. He also noted that Ms. Lacy had intrinsic knee problems, which could make her a candidate for arthroscopic surgery in the future if her condition persisted.

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Williams v. Williams, 774 So. 2d 296, 99 La.App. 4 Cir. 2156, 2000 La. App. LEXIS 2802, 2000 WL 1694025 (La. Ct. App. 2000).

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