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Lohenis v. Rousse

Court of Appeals of Louisiana, First Circuit

March 9, 2015

JOSEPH LOHENIS
v.
TAMMY ROUSSE AND TRUCK INSURANCE EXCHANGE, A DIVISION OF FARMERS

Page 1021

[Copyrighted Material Omitted]

Page 1022

On Appeal from the Twenty-First Judicial District Court, In and for the Parish of Livingston State of Louisiana. No. 139869, Div. A. The Honorable Wayne Ray Chutz, Judge Presiding.

Valerie Briggs Bargas, Baton Rouge, Louisiana, Attorney for Defendants/Appellants, Tammy Rousse and Truck Insurance Exchange, a Division of Farmers.

Donald G. Cave, Baton Rouge, Louisiana, Attorney for Plaintiff/Appellee, Joseph Lohenis.

BEFORE: GUIDRY, THERIOT, AND DRAKE, JJ.

OPINION

Page 1023

[2014 1078 La.App. 1 Cir. 2] DRAKE, J.

In this personal injury case, the defendants challenge the damages awarded by the district court to the plaintiff following a bench trial.

FACTS AND PROCEDURAL HISTORY

The accident at issue occurred on January 26, 2012, when a 1990 Ford F-150 owned by the plaintiff, Joseph Lohenis, was rear-ended by a vehicle owned and operated by the defendant, Tammy Rousse. At the time of the accident, the plaintiff's son, Matthew J. Lohenis, was operating the vehicle. The plaintiff's wife, Dawn Lohenis, was a guest passenger in the front seat, and the plaintiff was a guest passenger sitting in the middle of the back seat, where he wore only a lap seat belt. The Lohenis family was stopped at a stop sign behind several cars on Highway 1249 South in Tangipahoa Parish, Louisiana, when Ms. Rousse rear-ended their vehicle at approximately 45-miles-per-hour. The impact caused Mr. Lohenis's body to move forward, where he hit the console; then, his body moved backward, where the back of his head and neck hit the truck's back glass window. (R.53) The defendant's vehicle was insured by Truck Insurance Exchange, a Division of Farmers.[1]

Mr. Lohenis filed the instant suit against Ms. Rousse and Truck Insurance Exchange, seeking recovery for damages for the aggravation of pre-existing neck and back injuries allegedly sustained as a result of the automobile accident. A bench trial was conducted on April 15, 2014, on the issue of damages.[2] On April 25, 2014, the district court issued its judgment in favor of Mr. Lohenis and against the defendants. The district court awarded Mr. Lohenis $47,857.50 in damages.

[2014 1078 La.App. 1 Cir. 3] The defendants now appeal, contending that the trial court erred in the amount of general damages awarded to the plaintiff.

Page 1024

Specifically, the defendants assert four assignments of error, which we summarize as follows:

1. The trial court erred in admitting into evidence a third-party medical record on rebuttal as a basis for discrediting the testimony of the plaintiff's treating neurosurgeon and as a basis for finding that the plaintiff suffered aggravation of pre-existing injuries for sixteen-and-a-half months following the accident.
2. The trial court erred in finding that the plaintiff proved he suffered aggravation of pre-existing injuries beyond two months following the accident, given the medical records introduced at trial and the expert medical testimony of the plaintiff's treating neurosurgeon.
3. The trial court erred in using a mathematical formula to calculate the general damages awarded to the plaintiff.
4. The trial court erred in finding that the plaintiff would be entitled to damages for loss of consortium, when the plaintiff did not plead a loss of consortium claim in his original petition ...

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