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All v. Safeco Insurance Co.

Court of Appeals of Louisiana, First Circuit

November 1, 2017

JULIET L. ALL
v.
SAFECO INSURANCE COMPANY AND AUSTIN T. TYNES

         On 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

          Arthur N. Bagwell White Castle, LA Attorney for Plaintiff/ Appellee Juliet L. All

          Kevin T. Phay er Metairie, LA Attorney for Defendants/ Appellants Safeco Insurance Company & Austin T. Tynes

          BEFORE: HIGGINBOTHAM, HOLDRIDGE, PENZATO, J J.

          HOLDRIDGE, J.

         In this 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.

         FACTUAL AND PROCEDURAL HISTORY

         On 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.

         As a 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, [1]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.

         On 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.

         A bench 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."

         At the 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 ...

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