Opinion
2022 CA 0419
12-22-2022
LARRY GRANT, JR. AND QUANTAE GRANT, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILDREN, L.G. AND L.G. v. CYNTHIA MABILE HALL, USAA GENERAL INDEMNITY COMPANY, AND ALLSTATE PROPERTY AND CASUALTYINSURANCE COMPANY
Joseph C. Possa Cullen R. Clement Baton Rouge, Louisiana Counsel for Plaintiff-Appellee Larry Grant, Jr. Sallie C. Dupont Kolby P. Marchand Baton Rouge, Louisiana Counsel for Defendants-Appellants Cynthia Mabile Hall and USAA General Indemnity Company
NOT DESIGNATED FOR PUBLICATION
ON APPEAL FROM THE EIGHTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERVILLE, STATE OF LOUISIANA NUMBER 79826, DIVISION B HONORABLE TONYA S. LURRY, JUDGE
Joseph C. Possa Cullen R. Clement Baton Rouge, Louisiana Counsel for Plaintiff-Appellee Larry Grant, Jr.
Sallie C. Dupont Kolby P. Marchand Baton Rouge, Louisiana Counsel for Defendants-Appellants Cynthia Mabile Hall and USAA General Indemnity Company
BEFORE: THERIOT, CHUTZ, AND HESTER, JJ.
CHUTZ, J.
In this persona] injury suit arising from a motor vehicle accident, the defendants-appellants, Cynthia Mabile Hall (Hall) and USAA General Indemnity Company (USAA), appeal a judgment awarding damages to the plaintiff, Larry Grant, Jr. (Grant). For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
At approximately 5:30 p.m., on March 28, 2019, Grant was driving his Ford F-350 pickup truck east on Meriam Street in Plaquemine, Louisiana, while Hall was driving her Kia Optima west on Meriam Street. It was still daylight as both vehicles approached the intersection of Meriam Street with Railroad Avenue, which had two lanes divided by railroad tracks. There were stop signs on both sides of Meriam Street at its intersection with Railroad Avenue.
According to Grant, he stopped at the stop sign on Meriam Street, and after observing there was no traffic approaching from the left or at the opposing stop sign, he crossed the southbound lane of Railroad Avenue, and proceeded to the top of the railroad tracks. After waiting for two cars approaching from the right, northbound lane of Railroad Avenue to pass, he proceeded to turn left onto the northbound lane of Railroad Avenue. Almost immediately, his truck collided with the driver's-side passenger door and trunk area of Hall's vehicle as she attempted to drive straight across the intersection. The collision occurred in Hall's lane of travel, as her front tires were near the first rail of the railroad tracks. Grant stated he was looking to his left as he began the turn and had his left-turn signal on.
According to Hall, while she was stopped at the stop sign on Meriam Street, she did not look at the vehicle at the stop sign on the opposite side of Railroad Avenue. She indicated she first noticed Grant when they both proceeded past their respective stop signs at the same time. Hall could not say whether Grant's left-turn signal was activated because she was looking straight ahead.
As a result of the accident, Grant, who had pre-existing problems with his back and neck for which he was being actively treated with pain medication by a pain management physician, claimed he was injured. During the March 2019 accident, he hit his knees on the dashboard of his truck. The next morning, after experiencing more stiffness than normal in his neck and shoulder, he visited his primary care physician, reported the accident, and was given Ibuprofen and Flexeril. He also reported the accident to his pain management physician, who made no change in Grant's pain medications.
On May 22, 2019, Grant sought treatment from Michael Goff, D.C., a board-certified chiropractor, who had previously treated Grant for approximately a month in connection with a 2016 motor vehicle accident in which Grant's vehicle was rear-ended. Dr. Goff s initial diagnosis in May 2019 was cervical, thoracic, and lumbar sprains with possible cervical and lumbar disc issues. Grant was treated by Dr. Goff from May to October 2019 for complaints of headaches and pain in his neck, back, and right knee. His right knee pain was gone by October 2019. Grant returned for additional visits with Dr. Goff in June 2020, December 2020, and from March to July 2021. Grant also remained under treatment with his pain management physician until November 2020, when he learned she was closing her practice.
The parties stipulated to Dr. Goff s "expertise in the field of chiropractic physicians."
On April 28, 2021, Grant had an MRI that revealed cervical and lumber bulges and herniations. Dr. Goff opined that all of the injuries for which he had treated Grant were more probably than not caused by the March 2019 accident, including the disc herniations.
On March 19, 2020, Grant filed suit for damages against Hall and her insurer, USAA (collectively, the defendants). Following a bench trial in November 2021, the trial court concluded Hall was solely (100%) at fault in causing the accident at issue. The trial court found Grant had the right-of-way since he was 75% into the intersection versus Hall being only 25% into the intersection at the time of the accident The trial court awarded damages to Grant as follows: $20,000.00 in general damages; $11,947.00 for past medical expenses; $1,500.00 for the expert witness fee; $435.00 for court reporter expenses; and all court costs. Hall and USAA now suspensively appeal, arguing in four assignments of error that the trial court erred in failing to apply the statutory presumption of fault applicable to left-turning motorists against Grant; in finding Hall 100% at fault in causing the accident; and in awarding excessive general and special damages to Grant. Grant filed an answer to the appeal seeking an increase in his award for general damages.
Allstate Property and Casualty Company was also named as a defendant in its capacity as Grant's uninsured/under insured motorist insurance carrier. On Grant's motion, the claims against Allstate were later dismissed, with prejudice.
ALLOCATION OF FAULT
The defendants argue this court should conduct a de novo review of this matter because the trial court committed legal error in failing to properly apply the presumption of fault applicable to left-turning motorists such as Grant. They maintain Grant presented no evidence to rebut this presumption of fault or to establish he preempted the intersection. Accordingly, the defendants maintain the trial court's allocation of 100% fault to Hall was clearly in error.
Under La. R.S. 32:122, a driver making a left turn has a statutory duty to "yield the right of way to all vehicles approaching from the opposite direction which are within the intersection or so close thereto as to constitute an immediate hazard." A left-turning motorist involved in a collision that occurs across the center line is burdened with the presumption that he is at fault, and he must offer evidence to show that he is free from negligence to avoid the imposition of liability. Schwartzberg v. Guillory, 16-0753 (La.App. 1st Cir. 2/17/17), 213 So.3d 1266, 1269 n.3; Price v. City of Slidell, 97-2066 (La.App. 1st Cir. 9/25/98), 723 So.2d 455, 459.
Initially, we find the record does not support the defendants' argument that the trial court legally erred. Neither the trial court's allocation of 100% fault to Hall nor the trial court's failure to mention the presumption of fault applicable to a left-turning motorist indicates the trial court failed to properly apply the presumption of fault applicable to left-turning motorists. In the absence of evidence to the contrary, it must be presumed that the trial court was aware of and applied the correct law to the evidence presented. Centurion Place Civic Association v. Coleman, 19-0856 (La.App. 1st Cir. 6/12/20) (unpublished), 2020 WL 3108697, at *3. In this case, rather than committing legal error by failing to apply the presumption of fault applicable to left-turning motorists, the trial court apparently concluded Grant rebutted the presumption by presenting evidence he had preempted the intersection. This conclusion is implicit in the trial court's statement, made immediately prior to finding Hall solely at fault for the accident, that Grant had the right-of-way since he was "seventy[-]five percent into the intersection versus Ms. Hall only being about twenty[-]five percent into the intersection."
In order to preempt an intersection, the motorist must show he made a lawful entry, at a proper speed, after ascertaining that oncoming traffic was sufficiently removed to permit a safe passage and under the bona fide belief and expectation that he can negotiate a crossing with safety. The motorist must show he entered sufficiently in advance of the other vehicle to permit him to cross without requiring an emergency stop by the other vehicle. Where vehicles enter an intersection at or near the same time, the preemption rule does not apply. Price, 723 So.2d at 460.
The defendants argue there was no evidence presented showing Grant preempted the intersection. They contend preemption could not have occurred because both parties entered the intersection at or near the same time and, moreover, Grant did not enter the intersection lawfully as required for the application of the preemption rule because he illegally stopped on top of the railroad tracks.
At trial, Grant testified he looked both to his left and toward the opposing stop sign on Meriam Street when he stopped at the intersection of Meriam Street and Railroad Avenue. He did not see any vehicle at the stop sign. He then proceeded across the nearest lane of traffic on Railroad Avenue to the top of the railroad track where he paused long enough for two vehicles approaching from his right on Railroad Avenue to pass. He testified his left turn signal was activated and he was looking to his left as he then began his left turn. The impact occurred almost immediately in Hall's lane of traffic.
According to Hall, she was not looking at the vehicle on the other side of Railroad Avenue while she was stopped at the stop sign on Meriam Street. She testified she first saw Grant's vehicle when she looked left and proceeded into the intersection toward the railroad tracks. She was "looking straight ahead" and did not know whether Grant's left turn signal was turned on. Significantly, Hall claimed she and Grant left their respective stop signs at the same time.
In allocating 100% fault to Hall, the trial court clearly accepted Grant's version of events and rejected Hall's claim that she and Grant left their respective stop signs at the same time. The trial court is charged with assessing the credibility of witnesses, and in doing so, is free to accept or reject, in whole or in part, any witness's testimony. Marshall v. Marshall, 19-0879 (La.App. 1st Cir. 7/14/20), 308 So.3d 1178, 1183, writ denied. 20-01009 (La. 11/4/20), 303 So.3d 652. Based upon its credibility determinations and evaluation of the evidence presented, including the location of the collision within the intersection, the trial court concluded Grant had the right-of-way, implicitly finding he had preempted the intersection.
A trial court's allocation of fault is a factual matter reviewed under the manifest error-clearly wrong standard of review. This standard demands great deference to the factfinder's factual findings since only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Schexnayder v. Bridges, 15-0786 (La.App. 1st Cir. 2/26/16), 190 So.3d 764, 773. If the trial court's findings are reasonable based on the record, an appellate court cannot reverse those findings even if the appellate court may have decided differently had it been sitting as the factfinder. Further, where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous. Schexnayder, 190 So.3d at 773.
Based on our review of the record, we cannot say the trial court manifestly erred in accepting Grant's version of events over that of Hall in finding Grant had preempted the intersection. There was no evidence Grant was traveling at an excessive rate of speed. In the absence of such evidence, the fact that he crossed one lane of Railroad Avenue and paused on the railroad tracks long enough for two vehicles to pass before Hall cleared even one lane of traffic belied her testimony that she and Grant left their stop signs at the same time. Accordingly, we cannot say the trial court's conclusion that Hall was 100% at fault was manifestly erroneous or clearly wrong.
DAMAGES
General Damages;.
The defendants argue the $20,000.00 general damages award made to Grant was abusively high. Conversely, Grant argues in an answer to this appeal that the award is abusively low and should be increased to $50,000.00.
The defendants argue the general damages award was abusively high because Grant was a chronic pain patient for years before the March 2019 accident who not only had similar complaints of back, neck, and knee pain both before and after the accident but also sought only limited treatment following the accident. They point out Grant was also involved in another motor vehicle accident in 2016 that resulted in similar symptoms of neck and back pain.
Additionally, the defendants point out Grant had been actively treated by a pain management physician for neck and back pain for years prior to the March 2019 accident and had even made complaints of neck and back pain to his doctors shortly before the March 2019 accident. Further, Grant did not seek treatment from Dr. Goff until two months after the accident and was then treated for only five months, after which he did not return for additional treatment until eight months later in June 2020. The defendants allege Grant suffered, at most, "a minimal aggravation" of his pre-existing conditions for a few months.
Noting a defendant must take a victim as he finds him, Grant contends he suffered injuries to his neck, back, and knees as a result of the March 2019 accident. Although Grant had pre-existing issues with neck, back, and knee pain, he testified at trial that the symptoms he experienced after the March 2019 accident felt different than those he experienced before the accident. Moreover, Dr. Goff opined in his trial deposition that it was more probable than not that the March 2019 accident caused all of the symptoms for which he treated Grant, including those related to the cervical and lumber disc bulges and herniations revealed by the April 2021 MRI. Grant notes that the defendants offered no medical evidence to the contrary. Finally, in his answer to this appeal, Grant argues that in view of Dr. Gof Ps expert opinion that his cervical and lumber disc herniations were more probably than not caused by the March 2019 accident, the general damages award should be increased to $50,000.00, the lowest reasonable award for a non-surgical herniated disc.
Additionally, Grant argues the defendants failed to offer any evidence to rebut the application of the Housley presumption, which was set forth by the Louisiana Supreme Court in Housley v. Cerise, 579 So.2d 973, 980 (La. 1991). A plaintiff may be aided in proving causation by the Housley presumption, which provides that an injury is presumed to have resulted from an accident if before the accident the plaintiff was in good health but, commencing with the accident, the symptoms of the disabling condition appeared and continuously manifested themselves afterward, providing that the medical evidence shows a reasonable possibility of a causal connection between the accident and the disabling condition. Richardson v. Bridgefietd Casualty Insurance Company, 14-1587 (La.App. 1st Cir. 8/10/15), 181 So.3d 61, 64-65. In this case, the Housley presumption clearly is not applicable given Grant's pre-existing conditions.
The discretion vested in the trier-of-fact in awarding general damages is vast, such that an appellate court should rarely disturb such an award. The initial inquiry on appeal is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the much discretion of the trier-of-fact. Muller v. Colony Insurance Company, 10-0688 (La.App. 1st Cir. 12/9/10), 57 So.3d 341, 352, writ denied. 11-0092 (La. 2/25/11), 58 So.3d 459. Reasonable persons frequently disagree about the measure of damages in a particular case. Thus, it is only when the award is, in either direction, beyond that which a reasonable trier-of-fact could assess for the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Muller, 57 So.3d at 352.
In this case, extensive testimony and evidence were presented at trial regarding the symptoms Grant experienced, the complaints he made, and the medical treatment he received for his symptoms both before and after the March 2019 accident. Defense counsel cross-examined Grant in minute detail regarding these matters in an attempt to establish there was no change in his symptoms and treatment following the accident. In fact, Grant's symptoms before and after the March 2019 accident were quite similar. Nevertheless, after hearing all the testimony and evaluating the evidence, the trial court concluded the symptoms for which Dr. Goff treated Grant were caused by the accident, which resulted in an aggravation of his pre-existing conditions. In doing so, the trial court obviously accepted Grant's testimony that he could feel a difference in the symptoms of pain he experienced before and after the accident.
A trial court has wide discretion in determining the credibility of witnesses and its factual determinations will not be disturbed on appeal absent a showing of manifest error. Hernandez v. Hernandez, 05-1342 (La.App. 1st Cir. 6/9/06), 938 So.2d 1019, 1025. Given the trial court's credibility determinations, together with Dr. Goff s expert opinion that all of the symptoms he treated Grant for were caused by the March 2019 accident, we cannot say the trial court's conclusion that the accident aggravated Grant's pre-existing conditions was manifestly erroneous. Nor can we say that the trial court abused its discretion in awarding Grant $20,000.00 in general damages.
The defendants argue this award was abusively high because any aggravation of Grant's symptoms was of short duration, having resolved by October 2019, after which there was an eight-month gap in Grant receiving any treatments from Dr. Goff. Despite the defendants' arguments, however, it is evident the trial court believed the aggravation of Grant's symptoms to be of significantly longer duration. This is evidenced by the fact that the trial court allowed Grant to recover all of Dr. Goff s charges, including those incurred after October 2019. In total, Grant received thirty-two treatments from Dr. Goff, spanning from May 2019 to July 2021, albeit sporadically and with some prolonged gaps between treatments. Nevertheless, given Dr. Goff s expert opinion that all of the treatments were attributable to the March 2019 accident, we find no manifest error in the trial court's conclusion. Thus, while the $20,000.00 general damages award for the aggravation of Grant's preexisting conditions may be on the high side, and this court may have awarded a different amount, we cannot say the trial court abused its discretion in making the award.
We likewise find no merit in the answer Grant filed contending the award was abusively low. Grant's contention is based on Dr. Goff s opinion that Grant's cervical and lumbar bulges and herniations were more probably than not caused by the March 2019 accident. Grant asserts $50,000.00 is the lowest amount that can reasonably be awarded for a non-surgical disc herniation, and he requests the general damages award be increased to this amount.
Grant's contentions ignore the fact that, as the trier-of-fact, the trial court is free to accept or reject in whole or in part the opinion expressed by an expert. The effect and weight to be given expert testimony is within the broad discretion of the trial court. Babin v. Roustabouts, Inc., 05-2659 (La.App. 1st Cir. 11/15/06) (unpublished), 2006 WL 3308626, at *8. In this case, the trial court reasonably could have rejected, and apparently did reject, the part of Dr. Goff s testimony opining that the disc herniations were caused by the March 2019 accident. In this regard, it is of particular note that the MRI relied upon by Dr. Goff in rendering his opinion on the cause of the disc herniations was not performed until two years after the March 2019 accident.
Special Damages:
The defendants argue the trial court committed manifest error in awarding Grant the full amount of the medical expenses he incurred ($11,947.00) following the March 2019 accident. They maintain any medical expenses incurred by Grant any time after 2019 are too attenuated from the March 2019 accident to be considered causally related thereto. According to the defendants, excluding the medical expense incurred after 2019 would entitle Grant to a special damages award of only $4,473.00 for past medical expenses.
Grant did not include the expenses incurred for visits with his pain management physician as part of his claim for past medical expenses because he was already under the physician's active treatment at the time of the March 2019 accident and intended to continue such treatment regardless of whether or not the accident had occurred.
Special damages are those which have a "ready market value," such that the amount of damages theoretically may be determined with relative certainty. Awards of special damages, including medical expenses, are reviewed under the manifest error standard. Baack v. McIntosh, 20-01054 (La. 6/30/21), 333 So.3d 1206, 1215.
The defendants' argument that Grant was not entitled to recover medical expenses incurred after 2019 is premised entirely on their contention that the aggravation of his preexisting conditions did not extend beyond 2019. As we have previously discussed, the trial court appears to have reached a different conclusion based on Grant's testimony and Dr. Goff s expert opinion that the symptoms he treated Grant for, with the last treatment being in July 2021, were all related to the March 2019 accident. Based on our review of the record, we cannot say this conclusion is manifestly erroneous. Accordingly, we find no error in the special damages award allowing full recovery for all past medical expenses claimed by Grant, in the amount of $11,947.00.
CONCLUSION
For the above reasons, the January 19, 2022 judgment of the trial court rendered in favor of the plaintiff, Larry Grant, Jr., and against the defendants, Cynthia Mabile Hall and USAA General Indemnity Company, is affirmed. The plaintiffs answer to this appeal is denied. All costs of this appeal are assessed to the defendants.
AFFIRMED; ANSWER TO APPEAL DENIED.