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Acker v. America First Insurance Co.

Court of Appeals of Louisiana, Fifth Circuit

February 8, 2017

JOHN E. ACKER AND RAQUEL S. ACKER, INDIVIDUALLY AND AS ADMINISTRATORS FOR THEIR MINOR CHILDREN, ALYSSA ACKER AND DEVIN J. ACKER
v.
AMERICA FIRST INSURANCE COMPANY, JIMMY LEE, AND EARL'S PLUMBING & HEATING, LLC.

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 723-217, DIVISION "L" HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, JOHN E. ACKER AND RAQUEL S. ACKER James B. Guest

          COUNSEL FOR DEFENDANT/APPELLEE, AMERICAN FIRST INSURANCE COMPANY, JIMMY LEE AND EARL'S PLUMBING AND HEATING, LLC Paul M. Elvir, Jr.

          Panel composed of Jude G. Gravois, Robert M. Murphy, and Hans J. Liljeberg

         AFFIRMED

         JGG

         RMM

         HJL

          JUDE G. GRAVOIS JUDGE

         Plaintiffs, John E. Acker and Raquel S. Acker, appeal damage awards rendered in their favor by a jury, arguing that the jury abused its discretion in awarding them inadequate general damages and in failing to award loss of consortium damages in favor of their minor children. They also argue that the trial court erred in denying their motion for judgment notwithstanding the verdict, or in the alternative for a new trial, or in the alternative for additur. For the following reasons, we affirm the trial court's judgment rendered pursuant to the jury's verdict. We further affirm the trial court's judgment that denied plaintiffs' motion for judgment notwithstanding the verdict, or in the alternative for a new trial, or in the alternative for additur.

         FACTS AND PROCEDURAL HISTORY

         This matter arises from a vehicular accident that occurred on February 7, 2012 on Interstate Highway 10 ("I-10") in Metairie, Louisiana, between plaintiffs' vehicle (a Chevy Tahoe SUV) and a dump truck owned by defendant, Earl's Plumbing & Heating, L.L.C. ("Earl's Plumbing"), and being driven by its employee, Jimmy Lee. On January 24, 2013, Mr. and Mrs. Acker filed a petition for damages against Earl's Plumbing and Mr. Lee, seeking damages they allegedly sustained as a result of said accident.[1] [2] A jury trial was conducted on the matter on November 3 and 4, 2015.

         The accident in question occurred as plaintiffs were on their way to pick up an insulin pump for their daughter, Alyssa, who was seated in the back seat of their vehicle. Plaintiffs were traveling in the right eastbound lane of I-10 near the Veterans Boulevard overpass.[3] Mr. Lee was also traveling eastbound in the center lane of I-10 a short distance behind plaintiffs' vehicle. As Mr. Lee drove up the overpass, he changed into the right lane of travel in anticipation of exiting the interstate at its next exit. As Mr. Lee came over the overpass, he saw that plaintiffs' vehicle was braking because of a slowed or stopped vehicle (hereinafter, the "third party/unknown vehicle") in front of plaintiffs' vehicle. Mr. Lee attempted to slow down and also quickly attempted to avoid plaintiffs' vehicle by changing back into the center lane, but in doing so, the left side of his dump truck struck a Wal-Mart tractor-trailer. The impact of that contact pushed Mr. Lee's dump truck back into the direction of plaintiffs' lane of travel. Mr. Acker testified that he saw the dump truck coming up quickly behind his vehicle and attempted to avoid the dump truck by steering his vehicle to the right. Mr. Lee was able to avoid striking the back of plaintiffs' vehicle, but in the process of passing along the left side of plaintiffs' vehicle, scraped plaintiffs' vehicle, causing scuffing, scraping, and other relatively minor damages to the driver's side of plaintiffs' vehicle, including knocking loose the left rear wheel fender trim of plaintiffs' vehicle, as well as dislodging the driver's side mirror of plaintiffs' vehicle.

         Following the accident, after speaking with the police, plaintiffs continued on their errand. The next day, after feeling his back and neck "cramping up, " Mr. Acker went to see Dr. Mitchell Brien, a chiropractor who had treated him following a previous car accident in 2008. Mr. Acker complained to Dr. Brien of not being able to fully turn his neck, and also of hearing grinding when he did turn it, as well as back pain. Following a full examination, Dr. Brien released Mr. Acker to full duty at work as an equipment operator and ordered conservative treatment twice a week for several months. After about eight months, Mr. Acker's back pain resolved, but not his neck symptoms. Consequently, Dr. Brien ordered an MRI, which he determined showed bulging discs in Mr. Acker's neck. In November of 2012, Mr. Acker was referred to Dr. Lucien Miranne, a neurosurgeon. The evidence shows that Mr. Acker did not further treat with Dr. Brien after his referral to Dr. Miranne.

         Dr. Miranne ordered that Mr. Acker undergo several additional diagnostic tests, including a myelogram and an E.M.G. study. These studies showed that Mr. Acker, who was 44 years old at the time of this injury, had a "disc spur complex" at "C4-5."[4] Dr. Miranne, who testified as an expert at trial, said that these findings indicated evidence of both old and new changes to the disc area. Dr. Miranne had no reason to doubt that Mr. Acker's neck symptoms were caused by the instant accident, but felt that no surgery was indicated at the present time and could not say that surgery was definitely indicated in the future. Dr. Miranne testified that Mr. Acker did not tell him about his previous accidents.

         Mr. Acker testified regarding his past accidents and injuries. He said that in 1986, he was in a car accident involving an overturned vehicle, for which he filed a lawsuit. In 1998, he was in a second car accident in which he sustained back and neck injuries, for which he sought chiropractic treatment from Dr. Brien. Mr. Acker also filed a lawsuit in connection with that accident.

         Mr. Acker slipped and fell at his work place in 1998, and was off of work under disability for approximately two years while he underwent conservative treatment for back symptoms. He refused recommended surgery. That job entailed heavy lifting. He testified that he was able to return to the same type of work, labor and equipment operating, by practicing yoga, martial arts, and weaning off of pain medication. In 2008, Mr. Acker was involved in another car accident, injuring his back again, for which he filed a lawsuit. His pain resolved with chiropractic treatment, and according to him, he was not symptomatic at the time of the instant accident.

         Mr. Acker testified that he has always participated in martial arts. He admitted that he was treated for a groin muscle injury he sustained in 2013, after the instant accident, while allegedly attempting to do a front or forward flip.

         Mrs. Acker, thirty-three years old at the time of the instant accident, also sought treatment with Dr. Brien. Her complaints to him after this accident consisted primarily of lingering low back pain, with radiation to the left buttock, though she also initially reported headaches and neck pain. She was also treated conservatively by Dr. Brien for several months, with twice weekly heat, stretching, massage, and chiropractic adjustment, which she said helped alleviate her symptoms for several days, but which would return after that. When Mrs. Acker's reported symptoms did not abate, Dr. Brien ordered an MRI, which was performed in October of 2012 and which showed a bulging disc at "L4-5."[5] She was also referred to Dr. Miranne for consultation.

         Dr. Miranne compared the findings of Mrs. Acker's 2012 MRI to a previous MRI scan of Mrs. Acker from 2008, when she had injured her back at work, and opined that the disc herniation was not present on the earlier scan. He related her current symptoms to the 2012 accident at issue. However, he did not recommend surgery for Mrs. Acker.

         Mrs. Acker testified to a history of several accidents as well. In 2008, she injured her back at work lifting heavy pallets. She missed four months of work and was treated by Dr. Ralph Gessner, a chiropractor. In 2009, she was in a car accident that caused serious damage to her vehicle, for which she was at fault. However, she denied being injured in that accident.

         Mrs. Acker testified at trial that she can no longer participate in Zumba, or play basketball with her son, or ride ...


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