United States District Court, M.D. Louisiana
JOSEPH S. DIVINCENTI
SHELTER MUTUAL INSURANCE COMPANY AND/OR SHELTER GENERAL INSURANCE COMPANY
MEMORANDUM OF DECISION
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.
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
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
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).
trial was conducted on April 4, 2017. Both parties submitted
post-trial memoranda. (R. Docs. 30, 31).
FINDINGS OF FACT
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).
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).
applicable liability policy applied to the accident at issue,
thus Plaintiff's uninsured motorist policy issued by Shelter
Mutual Insurance Company is considered primary coverage. (R.
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).
testified to by Dr. Broussard, the accident on November 1,
2011 was an aggravation of Plaintiff's pre-existing
condition. (Ex. 10 at 23).
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).
Plaintiff attended approximately 6 appointments for physical
therapy and missed or rescheduled another 6 appointments.
(Ex. 9 at 5-7).
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).
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).
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.
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.