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McInnis v. Bonton

Court of Appeals of Louisiana, First Circuit

September 21, 2017


         On 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

          Keith L. Richardson Sean Avocato Baton Rouge, LA Attorney for Defendant-Appellee, USAA Casualty Insurance Company.

          Aub A. Ward Baton Rouge, LA Attorney for Plaintiff-Appellant, A. Kell McInnis.


          HIGGINBOTHAM, J.

         This 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.


         On 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.

         As a 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.[1] The trial court also denied Mr. McInnis's motion for judgment notwithstanding the verdict (JNOV) and, alternatively, motion for new trial. This appeal ensued.


         Mr. 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.[2] 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 trial court.

         In 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.

         In a 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).

         Before 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 ...

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