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Tacker v. La. Farm Bureau Ins. Co.

Court of Appeal of Louisiana, Second Circuit

November 26, 2014

LILLIE TACKER, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILD, CHLOIE YVAINNE TACKER, Plaintiff-Appellant
v.
LOUISIANA FARM BUREAU INSURANCE COMPANY AND PINKY TELL, Defendant-Appellee

Appealed from the Second Judicial District Court for the Parish of Claiborne, Louisiana. Trial Court No. 101,714. Honorable Jenifer Ward Clason, Judge.

STREET & STREET, By: C. Daniel Street, Counsel for Appellant, Lillie Tacker, individually and on behalf of her minor child, Chloie Yvainne Tacker.

COTTON, BOLTON, HOYCHICK & DOUGHTY, L.L.P., By: John B. Hoychick, Counsel for Appellees, Louisiana Farm Bureau, Casualty Insurance Company, Pinky Tell, Johnny Tell, and Jonvontae Tell.

Before STEWART, DREW and MOORE, JJ.

OPINION

Page 719

[49,522 La.App. 2 Cir. 1] DREW, J.

The sole issue in this appeal is whether the trial court erred in rejecting Lillie Tacker's claim for damages suffered in a motor vehicle accident. The trial court found that Tacker lacked credibility and failed to meet her burden of proof that she sustained any injuries in the wreck.

For the following reasons, the judgment is reversed in part and plaintiff is awarded special damages incurred on the date of this accident and modest general damages for her soft tissue injury. The judgment is affirmed in all other respects,

On November 2, 2010, Lillie Tacker and her minor child[1] were in an automobile collision which was caused by the sole negligence of the other driver, Jonvontae Tell.[2] Tell was driving a 1991 Geo south on Pelican Drive (the inferior street) and disregarded a stop sign as he entered North Main Street (the superior street) in Homer. Tacker was driving a 1992 Chevrolet pickup truck west on North Main and was struck by Tell's vehicle. The trial court correctly ruled that the accident resulted solely from the negligence of Tell. That ruling was not appealed and causation is not at issue in this appeal.

Plaintiff's lack of credibility is well supported throughout this record. Nonetheless, the record also reveals emergency room records from the date of the accident documenting that the attending physician observed muscle spasm and prescribed pain medications for her. For this reason, the [49,522 La.App. 2 Cir. 2] judgment is reversed in part to award plaintiff $832.00 for medical expenses incurred the day of the accident and $1,500.00 for soft tissue injury sustained in the accident.

TRIAL AND EVIDENCE

The trial took place on February 7, 2014. The trial court found the accident was caused by Tell's failure to yield and that Tacker was not at fault in the accident. Tacker presented special medical damages of $11,968.30[3] and sought damages for pain and suffering.[4]

Page 720

Plaintiff was in a second car crash on April 11, 2011.[5] She complained of the same injuries from each wreck, though she also claimed that her chest was crushed in this second wreck. The medical records and X-ray showed no fractures.

Tacker often sought treatment at the emergency rooms (ER) of the Homer and Minden hospitals in the weeks between the two wrecks. During these visits, she never complained of injuries from the first wreck.

A review of the deposition testimony of the directors of the ERs at the Minden and Homer hospitals belies Tacker's arguments on appeal that her evidence establishes her residual injuries from the accident at issue.

[49,522 La.App. 2 Cir. 3] Dr. Max Stell, director of the ER at Minden Medical Center, testified that on September 6, 2010, Tacker (who had a history of chronic headaches) sought relief for an acute headache with nausea and spotted vision at the Minden ER. Medical personnel administered to Tacker injections of Toradol (pain), Zofran (nausea), and Stadol (pain) plus a Lortab and a prescription for Lortab 7.5 mg (pain medication).

Dr. Donald Scott Haynes, director of the ER at Homer Memorial Hospital, testified that on November 2, 2010, the day of the collision, Tacker complained her neck, shoulders, and back were stiff and she was having difficulty moving her neck. She had neck pain and pain across her shoulders and in her mid-back. The attending physician observed no apparent injuries and found no abnormalities in a series of X-rays and the neurological exams. Following a diagnosis of cervical spasm, Tacker was administered an injection of Toradol (nonsteroidal anti-inflammatory pain medicine) and prescribed Lortab with one refill and Flexeril (muscle relaxant).

Tacker went to the Minden ER on November 17, 2010, with complaints of severe lower abdominal cramping and pain, but no mention of neck or back pain. During this visit, the record noted discrepancies in information plaintiff told to the nurse (medication previously prescribed not helping) and the doctor. Tacker had been given a prescription for Lortab 10s five days previously but stated they were not working. The patient stated that " the Lortab 10s work fine when I can get enough of them in my [49,522 La.App. 2 Cir. 4] system." Dr. Stell stated Tacker exhibited red flags for " chronic pain" and " drug seeking behavior."

The ER visits were continuing events.[6]

Page 721

Dr. Stell concluded that none of Tacker's visits to the Minden ER were related to trauma or a vehicular accident. Any neck pain was related to [49,522 La.App. 2 Cir. 5] her history of headache predating the wreck in question. He further attributed any back pain to her menstrual problems.

DISCUSSION

In Smith v. City of Shreveport, 46,596 (La.App.2d Cir. 9/21/11), 73 So.3d 496, this court stated that Louisiana courts of appeal apply the manifest error standard of review in civil cases. The trial court's findings of fact may not be set aside on appeal unless clearly wrong or manifestly erroneous, even where the court of appeal is convinced that it would have weighed the evidence differently and reached a different result. The issue to be resolved is not whether the trier of fact was right or wrong, but whether its factual conclusions were reasonable. If there are two permissible views of the evidence, the fact finder's choice cannot be manifestly erroneous or clearly wrong. See, Rosell v. ESCO, 549 So.2d 840 (La. 1989), and Stobart v. State through Dept. of Transp. & Dev., 617 So.2d 880 (La. 1993).

While this court agrees with the trial court's assessment that Tacker lacked credibility, we cannot overlook that on the day of the accident, the attending physician found no visible injuries but did treat Tacker as having sustained soft tissue injuries. Tacker sought no further medical attention for these injuries even though she frequently appeared in the ERs of Minden and Homer. She did not establish that any continuation of pain from these soft tissue injuries.

Based upon Tacker's history of dissembling, the trial court denied her any recovery. While we certainly understand this action of the trial court, [49,522 La.App. 2 Cir. 6] we are constrained to find that the court was clearly wrong on this issue. Tacker did, in fact,

Page 722

suffer some injuries in an accident not of her making. Considering the totality of this record, we find that plaintiff is entitled to a minimal award.

Accordingly, we reverse the trial court in part. We award the plaintiff $832.00 for medical expenses incurred on November 2, 2010, the date of the accident. We further award $1,500.00 for soft tissue injuries suffered that date.

In all other respects, the judgment of the trial court is affirmed.

CONCLUSION

The trial court judgment is reversed in part to award special damages of $832.00 for medical expenses incurred the day of the first wreck. We also award $1,500.00 to compensate for any soft tissue injury sustained in the first wreck.

DECREE

With costs of the appeal assessed against the defendants, the judgment is REVERSED IN PART, AMENDED, AND, AS AMENDED, AFFIRMED.


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