JULIET L. ALL
SAFECO INSURANCE COMPANY AND AUSTIN T. TYNES
Appeal from the Twenty-Third Judicial District Court In and
for the Parish of Ascension State of Louisiana Trial Court
No. 115, 493 Div. "E" The Honorable Alvin Turner,
Jr., Judge Presiding
N. Bagwell White Castle, LA Attorney for Plaintiff/ Appellee
Juliet L. All
T. Phay er Metairie, LA Attorney for Defendants/ Appellants
Safeco Insurance Company & Austin T. Tynes
BEFORE: HIGGINBOTHAM, HOLDRIDGE, PENZATO, J J.
personal injury suit, defendants, Safeco Insurance Company
and Austin T. Tynes, appeal a judgment awarding plaintiff,
Juliet L. All, $66, 000.00 in general damages, which was
reduced to $50, 000.00 as a result of the parties'
stipulation. For the reasons that follow, we affirm.
AND PROCEDURAL HISTORY
April 14, 2015, Mrs. All was operating a 2009 Honda Accord,
traveling west on Louisiana Highway 934 in Ascension Parish
near the intersection of Louisiana Highway 934 and George
Rouyea Road. At the same time, Mr. Tynes was operating a 2007
Chevrolet Silverado, traveling north on George Rouyea Road,
when he failed to stop at the stop sign, striking Mrs.
All's vehicle on its driver's side, propelling her
vehicle off the road and into a ditch. Ultimately, her
vehicle was declared a total loss.
result of the collision, Mrs. All was treated the day of the
accident at St. Elizabeth Hospital where she was diagnosed
with chest pain and neck strain and prescribed medications.
X-rays were taken and no fractures or broken bones were
found. When her pain would not recede, Mrs. All sought
treatment with Dr. Scott Petrie, an orthopedic surgeon at
Orthopaedic & Sports Clinic in Gonzales, Louisiana. On
May 4, 2015, Dr. Petrie diagnosed Mrs. All with cervical
spine strain/spasm/contusion and whiplash. After reviewing
Mrs. All's x-rays, Dr. Petrie determined that Mrs. All
had some soft tissue damage and prescribed her
antiinflammatories and referred her to Baton Rouge Physical
Therapy. On June 11, 2015, after ten sessions of physical
therapy, Mrs. All's progress report from Baton Rouge
Physical Therapy stated that three goals were established:
(1) she was able to use a computer over two hours without
significant pain; (2) she could tolerate one hour or more of
driving without aggravating pain; and (3) she could tolerate
sitting for two hours without aggravating pain. Due to family
and work issues, Mrs. All did not return for treatment with
Dr. Petrie until November 20, 2015, complaining of daily neck
spasms and burning sensations. Mrs. All saw Dr. Petrie
monthly until her last visit on February 17, 2016, when Dr.
Petrie examined her and noted that there was no change since
her first visit and that she had still not improved. Dr.
Petrie told Mrs. All to only come back and see him if she
would consider additional physical therapy.
March 18, 2016, Mrs. All filed a Petition for Damages against
Mr. Tynes and his insurer, Safeco, alleging that Mrs. All
sustained injuries from the accident and was entitled to
damages for those injuries. On December 8, 2016, the parties
stipulated that Mr. Tynes was solely at fault for the
accident and that he was an insured driver under an
automobile insurance policy issued by Safeco at the time of
the accident. The parties further stipulated that Mrs.
All's damages would not exceed $50, 000.00, exclusive of
judicial interest and costs.
trial was held on February 13, 2017, to determine the nature,
severity, and extent of Mrs. All's bodily injuries
sustained in the accident. At trial, Mrs. All was questioned
extensively about her neck pain and her progress during
physical therapy. Mrs. All testified that she had physical
therapy sessions twice a week for four or five weeks. Mrs.
All testified that when she went to physical therapy it would
ease her pain "for a little while, an hour or so."
When asked if she felt that physical therapy did her any good
as a long-term cure, Mrs. All stated "[n]o, it was't
a long-term cure. It was a temporary fix."
conclusion of the bench trial, the trial court orally ruled
stating, in pertinent part:
CASES OF THIS NATURE NORMALLY BOIL DOWN TO THE CREDIBILITY OF
THE WITNESSES AS TO THE PAIN INCURRED. I CAN TELL YOU MANY
TIMES I SEE WITNESSES OR PLAINTIFFS WHO TESTIFY ABOUT THE
DEGREE OF PAIN AND IT'S JUST NOT CREDIBLE TESTIMONY BASED
ON THE FACTS OF THE PARTICULAR CASE.
IN THIS CASE, THIS LADY WAS STRUCK BY ANOTHER VEHICLE.
VEHICLE ENDED UP IN A DITCH. [MRS.] ALL'S TESTIMONY IS
VERY CREDIBLE INSOFAR AS THIS COURT IS CONCERNED. I DON'T
THINK SHE TRIED TO MAXIMIZE THE DEGREE OF PAIN ...