Opinion
NO. 2012 CA 0280
11-02-2012
CORA T. NEOLAND v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Steve Adams Baton Rouge, LA Attorney for Plaintiff-Appellant, Cora T. Neoland Darrell J. Loup Baton Rouge, LA Attorney for Defendant-Appellant, State Farm Mutual Automobile Insurance Company
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
19th Judicial District Court,
In and for the Parish of East Baton Rouge,
State of Louisiana
Trial Court No. 580,918
Honorable Timothy E. Kelley, Judge Presiding
Steve Adams
Baton Rouge, LA
Attorney for Plaintiff-Appellant,
Cora T. Neoland
Darrell J. Loup
Baton Rouge, LA
Attorney for Defendant-Appellant,
State Farm Mutual Automobile Insurance
Company
BEFORE: WHIPPLE, McCLENDON, AND HIGGINBOTHAM, JJ.
HIGGINBOTHAM , J.
This matter arises out of a rear-end collision that occurred on August 2, 2007, at 2200 Narin Street in Baton Rouge, Louisiana when Cora T. Neoland's vehicle was struck from behind by Lance Morgan at a stop sign. Neoland was injured as a result of the collision. After the accident, Morgan's insurer AIG National settled with Neoland and tendered his policy limit of $10,000.00 to her. On July 13, 2009, Neoland filed suit in the 19th Judicial District Court against her insurer, State Farm Mutual Automobile Insurance Company (State Farm). In her petition, she alleged that Morgan was underinsured at the time of the accident and requested that State Farm compensate her for the injuries she sustained over the $10,000.00 she was previously paid.
Prior to trial, State Farm tendered $3,400.00 to Neoland for payment of all of her medical expenses. Therefore, the only issue remaining for trial was general damages. The matter came before the trial court on September 15, 2011, after which judgment was signed on October 3, 2011, dismissing with prejudice Neoland's claim at her cost. The trial court awarded Neoland $5,000.00 in general damages; however because Neoland had already received $10,000.00 from Morgan's insurer as a payment of general damages, the trial court found Neoland was not entitled to recover any uninsured/underinsured benefits from State Farm.
It is from the October 3, 2011 judgment that Neoland appeals, citing the following assignments of error: (1) the trial court erred in allowing its perception concerning the force of the impact to dictate its decision on the amount of injuries sustained by Neoland; (2) the trial court erred in concluding that Neoland suffered only 1-½month soft-tissue injury, contrary to the evidence; and (3) the trial court erred in failing to award appropriate pain and suffering damages.
FACTUAL FINDINGS
(Assignments of Error Nos. 1 & 2)
It is well-settled law that a trial court's findings of fact may not be reversed absent manifest error or unless clearly wrong. Stobart v. State of Louisiana, Department of Transportation and Development, 617 So.2d 880, 882 (La. 1993). The reviewing court must do more than simply review the record for some evidence that supports or controverts the trial court's findings; it must instead review the record in its entirety to determine whether the trial court's findings were clearly wrong or manifestly erroneous. Id. The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. Id. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id at 882-83. The manifest error standard demands great deference to the trier of fact's findings; for only the fact finder 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. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Thus, where two permissible views of the evidence exist, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Id.
Neoland contends that the trial court erred in equating the extent of her injuries with the force of the collision. In support of her position, Neoland cites Arceneaux v. Howard, 633 So.2d 207, 210 (La. App. 1st Cir. 1993), writ denied, 93-3128 (La. 2/11/94), 634 So. 2d 833, which states "Where medical experts and lay witnesses establish that a plaintiff sustained some injuries, the minimal force of the collision causing the injuries is of no material importance." This court in Fussell v. Roadrunner Towing and Recovery, 1999-0194 (La. App. 1st Cir. 3/31/00), 765 So.2d 373, writ denied, 2000-1264 (La. 6/23/00), 765 So. 2d 1042, found the Arceneaux holding was not determinative in its case. As the court in Fussell noted Arceneaux involved a head-on collision at 30-35 mph, where plaintiff suffered a contusion to the head, and the car was totally destroyed. Thus, considering those facts, the level of impact would seem irrelevant. Id. at 376. In Fussell, the issue was the admissibility of expert testimony on the extent of the impact. The Fussell court determined that a plaintiff or defendant cannot be deprived of his or her right to offer a reasonable presentation of issues by rigid, artificial application of a jurisprudentially created aid for the proof of causation. Each particular case must be reviewed on its own facts. Id. at 376. Further, in Boudreaux v. Mid-Continent Cas., 2009-1379, p. 9-10 (La. App. 1st Cir. 5/7/10) (unpublished), writ denied, 2010-1622 (La. 10/8/10), 46 So. 3d 1270, this court determined that force-of-impact evidence and testimony is a relevant factor in determining causation or the extent of injuries. In Brown v. Trinity Universal Ins. Co., 01-1405 (La. App. 3rd Cir. 4/3/02), 814 So.2d 747, 750, writ denied, 02-1689 (La. 10/14/02), 827 So.2d 422, the third circuit also held that the force of a collision may be considered in determining whether a person was injured in an accident and the extent of any injuries sustained. However, it also determined that the force of impact should not be the only factor considered when making such a determination. Id.
In this case, Dr. Davidson, who treated Neoland for her injuries, in his deposition, answered affirmatively, when asked if the force of the impact was relevant to causation. According to the testimony of Morgan, he was traveling about 2-3 mph and did not feel anything on impact. The pictures introduced into evidence revealed very little damage to the vehicles. Unlike Arceneaux, this was a low-speed collision with minimal impact. Accordingly, we find no error in the trial court's finding that "this was such a very minimal accident" or consideration of the impact in determining causation and the extent of Neoland's injuries. Further, we note that the trial court stated that it reviewed the medical records and depositions and listened to the testimony to determine that there were very minor, if any physical damages to Neoland. It did not rely solely on the force of the impact to determine the extent of Neoland's injuries. This assignment of error lacks merit.
Neoland also contends that the evidence is contrary to the trial court's conclusion that she suffered only a 1½month soft tissue injury. The deposition of Dr. Davidson and the medical records of Neoland from Dr. Davidson and Dr. Sefa, Neoland long time physician, were introduced into evidence. According to the deposition of Dr. Davidson, as a result of the accident Neoland suffered a neck injury that was quickly resolved, aggravated a lower back injury, and sustained a new lower back injury. He stated Neoland would have back pain indefinitely. Dr. Davidson also determined that Neoland's injury was more probably than not caused by the accident. However, the record is replete with evidence that Neoland had long suffered from low back pain prior to the accident, even being put on disability for it. The medical records of Dr. Sefa show that as late as April 2007, Neoland was complaining of back pain. The evidence also shows that she was involved in a subsequent car accident, two months after her accident with Morgan, which caused injuries. Officer Salah, who investigated the accident, testified that Neoland did not complain of injury at the scene of the accident. Neoland never sought physical therapy or advice from a specialist about her back after the accident. After review of the evidence, we find no error in the trial court's determination that Neoland suffered only a 1½month soft tissue injury as a result of the accident.
DAMAGES
(Assignment of Error #3)
The assessment of quantum or the appropriate amount of damages made by a trial judge or jury is a determination of fact, one entitled to great deference on review. Wainwright v. Fontenot, 2000-0492 (La, 10/17/00), 774 So.2d 70, 74. As such, the role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier-offact Moreover, before a court of appeal can disturb an award made by a fact finder, the record must clearly reveal that the trier-of-fact abused its discretion in making its award. Id.
The trial court, regarding the extent of Neoland's injuries stated, "This was such a very minimal accident and the injuries to [Neoland] from this accident, from my review of the meds and from the deposition and listening to the testimony, there was very minor, if any physical damages to [Neoland]." After careful review of the evidence, we do not find the award of $5,000.00 in general damages abusively low in light of the harm Neoland suffered and the injuries that she incurred.
For the above and foregoing reasons, we affirm the judgment of the trial court and assess all costs associated with this appeal against plaintiff-appellant, Cora T. Neoland.
AFFIRMED.