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Divincenti v. Shelter Mutual Insurance Co.

United States District Court, M.D. Louisiana

July 13, 2017

JOSEPH S. DIVINCENTI
v.
SHELTER MUTUAL INSURANCE COMPANY AND/OR SHELTER GENERAL INSURANCE COMPANY

          MEMORANDUM OF DECISION

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.

         This matter was tried before the Court, sitting without a jury, on April 4, 2017. Having considered the testimony and evidence presented at trial, the Joint Statement of Established Facts, arguments of counsel, the applicable burden of proof, the post-trial briefing and the applicable law, the Court issues the following Findings of Fact and Conclusions of Law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

         I. BACKGROUND

         This case arises out of an automobile accident that occurred on or about November 1, 2011. In his Petition for Damages filed on October 31, 2013 in the 23rd Judicial District Court, Parish of Ascension, Plaintiff Joseph S. Divincenti claims that a vehicle driven by Tyler D. Perkins failed to yield and ran into the rear of the vehicle driven by Plaintiff. (R. Doc. 1-2 at 1-3). The collision allegedly caused severe personal injuries to Plaintiff. The Petition further alleges that Mr. Perkins was uninsured, and therefore Shelter Mutual Insurance Company and/or Shelter General Insurance Company, his uninsured/underinsured motorist carrier, is liable for his damages.

         This matter was removed to this court on August 7, 2015. The parties stipulated that this matter would proceed as a bench trial. (R. Docs. 9, 25). On December 5, 2016, the parties filed a written consent to have a United States Magistrate Judge conduct any and all further proceedings in the case and in accordance with 28 U.S.C. § 636(c), any appeal from judgment would be taken directly to the United States Court of Appeals for the Fifth Circuit. (R. Doc. 14).

         The trial was conducted on April 4, 2017.[1] Both parties submitted post-trial memoranda. (R. Docs. 30, 31).

         II. FINDINGS OF FACT

         1. At the time of the automobile accident at issue, Tyler Perkins was operating a 2007 Chevrolet HHR bearing VIN 3GNDA33P77S576770 on U.S. Highway 61. (R. Doc. 24).

         2. On November 1, 2011, as Plaintiff was operating his 1990 Ford F-350 on U.S. Highway 61, the 2007 Chevrolet driven by Tyler Perkins collided with the rear of Plaintiff's vehicle. (R. Doc. 24).[2]

         3. No applicable liability policy applied to the accident at issue, thus Plaintiff's uninsured motorist policy[3] issued by Shelter Mutual Insurance Company is considered primary coverage. (R. Doc. 24).

         4. Plaintiff's treating orthopedic physician is Dr. Thad Broussard, who has treated Plaintiff for various back and neck pain intermittently since 1992. Plaintiff sought treatment from Dr. Broussard following an automobile accident in 1993 (Tr. at 54; Ex. 7 at 20) and Dr. Broussard diagnosed Plaintiff with degenerative changes in his back in 1994. (Ex. 10 at 12).

         5. As testified to by Dr. Broussard, the accident on November 1, 2011 was an aggravation of Plaintiff's pre-existing condition. (Ex. 10 at 23).

         6. Plaintiff was treated conservatively following this accident and was prescribed physical therapy. Plaintiff saw Dr. Broussard for one follow-up appointment in December of 2011 and cancelled his next appointment that was scheduled in January 2012. (Tr. at 64, Ex. 7 at 12, Ex. 10 at 12).

         7. Plaintiff attended approximately 6 appointments for physical therapy and missed or rescheduled another 6 appointments. (Ex. 9 at 5-7).

         8. Plaintiff reported improvement in his back pain on February 20, 2012 and did not return for any additional physical therapy despite being prescribed such for another four weeks. (Ex. 9 at 6, 27).

         9. Plaintiff sought and received medical care, including imaging, physical examinations, medication and physical therapy following the accident, resulting in certain medical expenses incurred as a result of the accident. (Ex. 2).

         10. Plaintiff returned to his pre-accident condition prior to March 21, 2013, when he reported no back pain and normal range of motion to Dr. Cooley at the Baton Rouge Clinic. (Tr. at 74; Ex. 3 at 38-39). Plaintiff did not seek further back treatment until November 5, 2013. (Ex. 7 at 7; Ex. 10 at 14). This treatment was unrelated to the accident at issue.

         11. Plaintiff testified at trial that prior to the accident at issue he had no lower back pain. This testimony is inconsistent with years of medical records. (Tr. at 51-59). Based on the Court's specific observations of Plaintiff during his testimony, the inconsistency of Plaintiff's testimony with the medical records in evidence, and the implausible explanations given by Plaintiff when confronted by such inconsistencies, the Court finds that Plaintiff's testimony regarding the intensity, persistence and effects of his injuries was not credible.

         III. ...


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