KAREN C. JONES AND CALVIN R. JONES Plaintiffs-Appellants
FINANCIAL INDEMNITY COMPANY, JAMES A. FRITH, FOREMOST INSURANCE COMPANY, SARAH L. COLEMAN, AND FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY Defendants-Appellees
Appealed from the First Judicial District Court for the
Parish of Caddo, Louisiana Trial Court No. 580096 Honorable
Craig O. Marcotte, Judge
PATRICK ALAN STEGALL Counsel for Appellants
IRION, SALLEY, CARLISLE & GARDNER By: Alexander J.
Mijalis Counsel for Appellee, Farmers Texas County Mutual
WILLIAMS, COX, and BLEICH (Pro Tempore), JJ.
plaintiffs, Karen C. Jones and Calvin R. Jones, appeal a
trial court judgment which they claim awarded insufficient
damages for Karen's injuries resulting from an automobile
accident and for Calvin's claim for loss of consortium.
The plaintiffs also appeal the trial court's application
of Texas law in calculating medical expenses. For the
following reasons, we affirm.
October 23, 2013, the plaintiff, Karen C. Jones, a resident
of the State of Texas, drove to Shreveport, Louisiana to
attend a work-related training session at Willis-Knighton
Medical Center. She was stopped at a traffic light at the
intersection of Interstate 20 and Greenwood Road. James A.
Frith was stopped behind Karen's vehicle when he was
rear-ended by a vehicle being driven by Sarah L. Coleman. The
collision caused Frith's vehicle to slide into the rear
of Karen's vehicle.
time of the accident, the vehicle being driven by Coleman was
covered by an automobile insurance policy issued and
delivered by Foremost Insurance Company; Frith was insured by
Financial Indemnity Company; Karen had an
uninsured/underinsured motorist insurance policy that was
issued by Farmers Texas County Mutual Insurance Company
("Farmers"). Karen's policy was negotiated,
issued and delivered in the State of Texas.
the accident, Karen, who was 56 years old, drove herself to
the emergency room at Willis-Knighton with complaints of pain
in her neck and lower back. After being diagnosed with
cervical and lumbar strain, Karen was released with
prescriptions for a muscle relaxer and pain medication and
she was given instructions to follow up with her physician.
Thereafter, Karen drove herself back to her home near Dallas,
had a preexisting back condition due, in part, to injuries
she sustained in an automobile accident in 2004. As a result
of the injuries from the 2004 accident, Karen underwent a
lumber spinal fusion at the L5-S1 level in 2005.
the October 2013 accident, Karen was seen by Dr. Richard
Marks, her prior back surgeon, on three occasions - November
5, 2013, December 17, 2013, and January 28, 2014 - during
which she primarily complained of neck pain. At that time,
Dr. Marks noted that Karen's back condition had not
changed, with the exception of some degenerative changes,
since her post-operative radiological studies in 2006. After
receiving conservative treatment, such as oral medication and
physical therapy for muscle strengthening, Karen did not
return to Dr. Marks' office until February 2016, more
than two years after the accident.
October 7, 2014, Karen filed a lawsuit naming Frith and his
insurer, Coleman and her insurer, and Farmers as defendants.
Karen alleged that she sustained injuries to her neck and
back as a result of the automobile accident. Karen's
husband, Calvin Jones, joined the lawsuit claiming loss of
consortium. Subsequently, Karen settled her claims with
Coleman and her insurer; Frith and his insurer were dismissed
from the lawsuit on a motion for summary
judgment. The matter proceeded with Farmers,
Karen's UM insurer, as the sole defendant.
on July 11, 2017, Farmers filed a motion in limine arguing
that the calculation of Karen's medical expenses should
be governed by Texas law. Farmers maintained that the policy
was issued in Texas to a resident of Texas, and all of
Karen's medical treatment (with the exception of the
initial emergency room visit) was provided in Texas.
Therefore, according to Farmers, the Texas
"paid-not-incurred" rule should apply. The trial
court granted the motion, concluding that Karen's medical
expenses were governed by Texas law.
trial was conducted on January 18, 2018. On the morning of
trial, the parties stipulated that Karen's medical
expenses through January 28, 2014, totaled $7, 593.05, and
the expenses incurred thereafter totaled $138, 854.86.
stated above, the evidence adduced at trial established that
Karen had injured her back in a previous automobile accident
in 2004, and she had undergone a lumbar fusion at L5-S1 as a
result of that accident. Following the October 2013 accident,
Karen was seen by Dr. Richard Marks, her prior back surgeon
on three occasions - November 5, 2013, December 17, 2013, and
January 28, 2014. During the first visit, Dr. Marks noted
that Karen's back problems were unchanged since 2006.
After the three visits to Dr. Marks, Karen did not seek any
further treatment for neck and back pain until February 2016.
testified her neck and back pain never resolved and that it
had "always been there since the wreck." She
explained that she "just lived with [the pain]."
According to Karen, she decided to return to Dr. Marks'
office when the pain became so "excruciating," that
she "could not stand it anymore," and it became
difficult to "be normal in any form or fashion."
Further, Karen testified that she did not seek medical
treatment between January 2014 and February 2016 because she
was afraid of having to deal with employment
cross-examination, Karen testified as follows: the impact
from the collision did not cause the airbags in her vehicle
to deploy; the photographs depicted minor damage to her
vehicle; after the accident, she had difficulty closing the
liftgate on her SUV; she did not miss any days from work as a
result of the accident; Dr. Marks did not restrict her
activities after the accident; she continued to drive around
in the Dallas-Fort Worth area doing her job in medical
devices/equipment sales; she did not seek medical treatment
for her neck or her back between January 2014 and February
2016; and during her deposition in February 2016, she
described her pain as "tolerable."
on cross-examination, Karen admitted that according to Dr.
Marks' notes from her November 2013 visit, she described
her right low back and upper gluteal pain was "mild to
moderate." She also admitted that Dr. Marks noted that
her back pain was unchanged from before the October 2013
accident; and when she returned to Dr. Marks in February
2016, he noted that she reported "severe" left
Jones, Karen's husband, testified as follows: immediately
after the accident, he did not notice "anything too much
out of the ordinary other than [Karen] was kind of sore and
everything like that"; as time passed, he began to
notice that Karen was "sleeping more restless" and
she had become less active; he "put two and two
together" and concluded that Karen was experiencing back
pain based on his own prior issues with back pain and lumbar
surgery; after he began to question Karen, she
admitted that she was having back pain; after the October
2013 accident, Karen stopped doing activities she had
enjoyed, such as gardening, going to the movies and attending
baseball games; and he was forced to sell his boat because it
was "too hard for [Karen] to get on and off the
boat" and she could not tolerate being on the boat
"unless the lake was absolutely glass smooth."
Marks testified via a videotaped deposition. Dr. Marks
testified as follows: he had known Karen and Calvin for a
number of years; he performed lumbar fusions on Karen and
Calvin in the past; Karen "did very well" after her
surgery in 2005; when he examined Karen in December 2013, her
primary complaint was neck pain and stiffness; Karen reported
that she had fallen and broken her ankle; and in December
2013, Karen "felt that her back hadn't really
changed significantly" since 2006. Dr. Marks further
testified that he ordered additional X-rays. With regard to
those X-rays, Dr. Marks testified as follows:
No real change. And no real change not only from what had
previously been done, but apparently these were compared to
what was done a long time ago, six years previously, and it
looked really quite similar. So nothing that looked acute. I
was concerned not only about what may have happened with this
fall, did she make anything worse. It didn't appear to.
Her symptoms were worse, but X-rays wise, nothing was worse.
according to Dr. Marks' notes, Karen did not complain of
back pain when she was examined by him in January 2014. Karen
did not return to Dr. Marks until February 2016, at which
time she complained of "severe" pain in her lower
back. After several visits and diagnostic testing, Dr. Marks
recommended that Karen undergo a two-level fusion (L3-4 and
L4-5) to improve her symptoms. He also opined that the
October 2013 automobile accident "exacerbated
Karen's preexisting neck issues and caused new
issues." Dr. Marks also testified that he believes the
treatment he provided to Karen for her back issues "are
definitely related to the [October 2013] wreck."
Further, Dr. Marks testified that he believes the accident
was a substantial factor in causing Karen's need for back
surgery and that the accident was a substantial factor in
causing Karen's neck problems.
cross-examination, Dr. Marks testified as follows: he did not
mention back surgery to Karen when he saw her in January
2014; he does not know what, if anything, may have happened
to Karen between her January 2014 visit and her February 2016
visit to cause her increased pain; his notes from Karen's
January 2014 examination do not contain any reference to back
pain; in January 2014, there was no indication, from either
diagnostic testing or Karen's subjective complaints, that
she would require a two-level fusion; during Karen's
initial visit to him in November 2014, her X-rays showed that
the level of instability at L4-5 was unchanged from her 2006
medical records; one of the risks of a spinal fusion is that
more stress is placed on the levels above the site of the
fusion; in January 2014, Karen's neck X-rays showed
degenerative changes, which were unchanged from her 2006
X-rays; during the two-year gap in Karen's medical
treatment, he does not know whether or not she was taking
pain medication or receiving treatment from other physicians;
and during his treatment of Karen from February 2016 to March
2017, her neck pain was secondary to her back pain.
Britain Auer, an orthopedic surgeon, also testified via a
videotaped deposition. Dr. Auer testified that he conducted an
independent medical examination of Karen on February 9, 2017.
He stated that Karen reported to him that she initially
experienced neck pain after the accident, and her back pain
began approximately one month after the accident. Dr. Auer
stated that Karen also reported that her "neck was doing
pretty well" and that "she was not interested in
any - in having surgery on her neck."
Dr. Auer testified that he agrees with Dr. Marks that Karen
needs lumbar surgery. However, he opined that Karen's
current back condition and her need for surgery are unrelated
to the October 2013 automobile accident. Dr. Auer testified
[Karen] readily volunteered to me on her history that she
didn't have any back pain for a month [following the
October 2013 accident]; which I would say is unusual. You
know, generally, with respect to the trauma, if a traumatic
event is going to cause you symptoms, it will do so within -
with - with low back pain within 24 to 48 hours. And she
volunteered. I did not ask. I did not prompt. She said:
"It didn't really bother me for about a month and
then I started having back pain."
So that is one factor that would tell me that the trauma does
not necessarily have anything to do with her ongoing
symptoms. And then also gaps in treatment. If your back pain
started hurting after a month, it does not appear to me from
the medical records, unless there are other records I'm
not aware of, that she sought any treatment for at least two
years. If you go two years doing pretty well, it's pretty
difficult for me to connect that to an incident two years ago
that is traumatic.
[I]f it [was] related [to the traumatic event], it would have
resulted in ongoing treatment. And sometimes in patients, I
mean, they go to a chiropractor, or they go to physical
therapy, or go see the doctor and get some medications, but I
- from what I've been presented, I see evidence of
nothing for - I don't know exactly how many months it is,
but at least two years before there were any complaints to
her prior surgeon who operated on her, had a relationship
with her, and didn't - she just didn't go back. So
you would think if you were having a significant amount of
pain, you would go back.
Dr. Auer testified that Karen's statements to him
corroborated her statements to Dr. Marks in November 2013,
i.e., that her back pain was unchanged from 2006. He
opined that Karen's failure to seek medical treatment
between January 2014 and February 2016 more than likely means
that her low back pain was not severe enough to warrant
further medical treatment. He explained as follows:
[S]he did well for a couple of years. And lots of things can
happen in a couple of years. She has a very degenerative neck
on her MRI, which is genetic, not accident related. And if
you do well for two years and then you start having pain,
it's more likely, in my opinion, due to your degenerative
condition that you were born with and were going to develop
than it is from trauma.
cross-examination, Dr. Auer testified as follows: he reviewed
Karen's medical records from Dr. Marks, her post-accident
MRI studies, and a CT scan of her cervical spine; he examined
Karen in February 2017; Karen "absolutely" had back
pain when he examined her in 2017; people who have had a
lumbar surgery and people with degenerative spine conditions
are more likely to become injured in traumatic events such as
automobile collisions; Karen's emergency room records
show that she complained of neck pain and low back pain
immediately after the collision; the fact that Karen
complained of low back pain immediately after the accident
does not change his opinion that her current back condition
is not related to the accident; and he believes Karen's
neck issues are related to the accident "to a certain
reviewing the evidence, the trial court noted that the damage
to Karen's vehicle was "very minor and not visible
upon examination without removing the bumper[.]" The
court also noted Dr. Marks' admission that Karen's
X-rays "both before the motor vehicle accident of
October 2013 and after were basically the same albeit with
some degenerative conditions present." The trial court
concluded that "any back complaints that [Karen] had
after January 28, 2014, are more probabl[e] than not related
to her preexisting condition rather than the October 2013
motor vehicle accident." With regard to the injuries to
Karen's neck, the trial court stated:
[T]here has been no medical testimony which states that the
treatment and complaints after January 28, 2014 are not
related to the motor vehicle accident of October 2013. Dr.
Marks and Dr. Auer related at least part of her neck problems
to the motor vehicle accident of October 2013. Although there
was a very long gap in treatment, January 28, 2014 until
February 23, 2016, which this Court believes is an extremely
long time to go without medical treatment for a condition in
which a Plaintiff complains is bothering her on an ongoing
bases [sic], the Court does acknowledge the fact that both
medical experts testified that her neck complaints are
related to the motor vehicle [accident] in question.
court awarded to Karen damages as follows:
Stipulated Medical Expenses (until January 28,
Medical Expenses for Neck treatment after January