A. KELL MCINNIS
LAMIESHA BONTON, ALLSTATE INSURANCE COMPANY, AND USAA CASUALTY INSURANCE COMPANY
Appeal from the 19th Judicial District Court In and for the
Parish of East Baton Rouge State of Louisiana Trial Court No.
623, 627 Honorable Donald R. Johnson, Judge Presiding
L. Richardson Sean Avocato Baton Rouge, LA Attorney for
Defendant-Appellee, USAA Casualty Insurance Company.
Ward Baton Rouge, LA Attorney for Plaintiff-Appellant, A.
BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
personal injury suit arises out of a minor automobile
accident. Plaintiff appeals a trial court judgment rendered
in accordance with a jury verdict, where the jury unanimously
found that the accident did not cause plaintiff any damages.
The trial court's judgment dismissed all of the
plaintiffs claims against the sole remaining defendant,
plaintiffs own uninsured/underinsured motorist (UM) carrier.
AND PROCEDURAL HISTORY
November 28, 2012, Mr. A. Kell McInnis was stopped in heavy
traffic on Perkins Road near Acadian Thruway in Baton Rouge,
Louisiana. Mr. McInnis's vehicle was hit from behind by a
vehicle driven by Ms. Lamiesha Bonton, who admitted that she
was momentarily distracted while checking on her crying child
and she did not realize that Mr. McInnis's vehicle had
stopped. While the damage to both vehicles was minor, Mr.
McInnis described the impact as a jolt that rocked him back
in his seat. Mr. McInnis did not report being injured
immediately after the accident; however, his neck, shoulder,
and back began to hurt during the early morning hours the
following day. Mr. McInnis, who was almost 66 years old at
the time of trial, had a long history of neck and back pain
that had resulted in the need for physical therapy, epidural
steroid injections (ESIs), three back surgeries, and one neck
surgery over the years prior to the accident. Because he was
primarily concerned about damage to his recent neck fusion,
he scheduled an appointment for two weeks after the accident,
on December 10, 2012, with his orthopedic spine surgeon, Dr.
Henry Louis Eiserloh, III, who had been treating Mr. McInnis
for neck and back pain that predated the accident. After the
accident, Mr. McInnis continued to be treated by Dr.
Eiserloh, undergoing several ESIs, physical therapy, and two
surgical procedures on his low back.
result of the accident, Mr. McInnis filed a petition for
damages against Ms. Bonton and her liability insurer,
Allstate Insurance Company, as well as his own UM and medical
payments insurer, USAA Casualty Insurance Company. Prior to
trial, Mr. McInnis settled his claims with Ms. Bonton's
primary insurer, Allstate, for its $25, 000.00 policy limits,
and USAA unconditionally tendered $75, 000.00 to Mr. McInnis
under its UM coverage, along with another $5, 000.00 under
the medical payment provision of its policy. After it was
stipulated that Ms. Bonton was solely at fault for the
accident, the only remaining issues for trial were causation,
the extent of Mr. McInnis's injuries and/or aggravation
of pre-existing injuries, and damages. The case proceeded to
a jury trial solely against USAA. The jury's unanimous
verdict was that Mr. McInnis did not sustain damages as a
result of the accident. The trial court signed a judgment in
accordance with the jury's verdict and dismissed all of
Mr. McInnis's claims against USAA. The trial court
also denied Mr. McInnis's motion for judgment
notwithstanding the verdict (JNOV) and, alternatively, motion
for new trial. This appeal ensued.
McInnis raises two assignments of error: (1) the jury's
verdict was clearly inconsistent with the great weight of the
evidence and law; and (2) the trial court erred in denying
his motion for new trial. Mr. McInnis argues that the
overwhelming evidence supports a finding that the accident
aggravated his preexisting back injury. He further maintains
that since the jury's verdict was contrary to the
evidence and law, a new trial should have been granted by the
contrast, USAA contends that the jury's verdict was
reasonable in light of the conflicting testimony concerning
Mr. McInnis's extensive pre-existing degenerative back
condition and the lack of objective findings of a new injury
after the accident. USAA further asserts that since the
jury's verdict was reasonable and supported by the
evidence in the record, there are no grounds for a new trial.
trial where causation and credibility are major issues, a
jury's findings of fact are entitled to great deference.
Guillory v. Insurance Co. of North America, 96-1084
(La. 4/8/97), 692 So.2d 1029, 1032. An appellate court's
review of factual findings is governed by the manifest
error/clearly wrong standard of review. Touchard v.
Slemco Electric Foundation, 99-3577 (La. 10/17/00), 769
So.2d 1200, 1204. It is a determination for the factfinder to
discern whether a person has suffered an aggravation of a
pre-existing condition. Id., 769 So.2d at 1202. When
there is conflict in the testimony, reasonable evaluations of
credibility and reasonable inferences of fact should not be
disturbed upon review, even though the appellate court may
feel that its own evaluations and inferences are as
reasonable. Id., 769 So.2d at 1204; Rosell v.
ESCO, 549 So.2d 840, 844 (La. 1989). Moreover, where two
permissible views of the evidence exist, the factfinder's
choice between them cannot be manifestly erroneous.
Rosell, 549 So.2d at 844. For the reviewing court,
the issue to be resolved is not whether the factfinder was
wrong, but whether the factfinder's conclusions were
reasonable in light of the record reviewed in its entirety.
Stobart v. State through Dept. of Transp. and
Development, 617 So.2d 880, 882 (La. 1993).
recovery can be granted for aggravation of a pre-existing
condition, a causative link between the accident and the
plaintiffs current status must be established. Lamb v.
Berry, 35, 347 (La.App. 2d Cir. 12/28/01), 803 So.2d
1084, 1086. The test for determining a causal relationship
between an accident and subsequent injuries in a personal
injury suit is whether the plaintiff proved through medical
testimony that it was more probable than not that subsequent
injuries were caused by trauma suffered in the accident.
Id. The plaintiff is aided in establishing this
burden by the legal presumption that a medical condition
producing disability is presumed to have resulted from the
accident if, before the accident, the injured ...