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Levine v. Allstate Insurance Co.

Court of Appeals of Louisiana, Fourth Circuit

April 18, 2018

DWAYNE LEVINE
v.
ALLSTATE INSURANCE COMPANY, KRISTYN HARRIS, MARK HARRIS, AND PROGRESSIVE PALOVERDE INSURANCE COMPANY

          Martin Morgan Attorney at Law COUNSEL FOR PLAINTIFF/APPELLEE

          Hannah Adams Attorney at Law SOUTHEAST LOUISIANA LEGAL SERVICES COUNSEL FOR DEFENDANT/APPELLANT

          (Court composed of Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods)

          JENKINS, J., CONCURS IN THE RESULT

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2013-12179, DIVISION "M-13" Honorable Paulette R. Irons, Judge

          Roland L. Belsome Judge

         This is a tort case arising out of a motor vehicle accident. The trial court found the Defendant driver, Kristyn Harris, liable for the accident and awarded the Plaintiff, Dwayne Levine, $87, 652.20 in damages. The Plaintiff and Defendant, Allstate Insurance Company, appealed the trial court's judgment. For the following reasons, we affirm.

         STATEMENT OF FACTS AND PROCEDURAL HISTORY

         The facts surrounding the accident are undisputed.[1] Preceding this accident, the Plaintiff was under an orthopedist's care for a pre-existing ankle injury, which required two surgeries. Subsequent to this accident, the Plaintiff underwent a third surgery to his right ankle, wound debridement and a skin graft.

         The Plaintiff later filed a Petition for Damages. After a bench trial and the submission of post-trial briefs, the trial court issued a judgment in favor of the

          Plaintiff. In awarding damages, the trial court attributed fifty percent of the need for the third surgery to the subject accident; however, it did not award damages for the skin graft. In total, the Plaintiff was awarded $87, 652.20: $37, 652.20 in medical special damages and $50, 000.00 in general damages. The Plaintiff and the Defendant filed cross-appeals on causation and the resulting damages. The Defendant does not challenge liability on appeal.

         LAW AND ANALYSIS

         The sole issue before this Court in the cross-appeals involves the amount of damages awarded. In particular, the Defendant argues that the Plaintiff's damages award should be substantially reduced because he did not establish a causal link between the third surgery and the instant accident; while the Plaintiff argues that the award should be increased because he established a causal link for fifty percent of the third surgery and the skin graft.

         "Causation is a factual issue." D'Angelo v. Guarino, 10-1555, p. 6 (La.App. 4 Cir. 3/9/12), 88 So.3d 683, 688. "Although the Louisiana Constitution extends appellate jurisdiction in civil cases to both law and facts, the exercise of this power is limited by the jurisprudential rule that factual determinations of the trier of fact will not be set aside by a reviewing court unless they are manifestly erroneous or clearly wrong." Brewer v. J.B. Hunt Transp., Inc., 09-1408, p. 9 (La. 3/16/10), 35 So.3d 230, 237. "To reverse a factfinder's determination . . . an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the ...


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