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Jones v. Financial Indemnity Co.

Court of Appeals of Louisiana, Second Circuit

January 16, 2019

KAREN C. JONES AND CALVIN R. JONES Plaintiffs-Appellants

          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

          LUNN, IRION, SALLEY, CARLISLE & GARDNER By: Alexander J. Mijalis Counsel for Appellee, Farmers Texas County Mutual Insurance Company

          Before WILLIAMS, COX, and BLEICH (Pro Tempore), JJ.

          WILLIAMS, C.J.

         The 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.


         On 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.

         At the 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.

         Following 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, Texas.

         Karen 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.

         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 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.

         On 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.[1] The matter proceeded with Farmers, Karen's UM insurer, as the sole defendant.

         Subsequently, 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.

         A bench 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.

         As 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.[2] 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.

         Karen 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 issues.[3]

         On 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."

         Further, 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 gluteal pain.

         Calvin 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;[4] 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."

         Dr. Marks testified via a videotaped deposition.[5] 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.

         Additionally, 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.

         On 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.

         Dr. Britain Auer, an orthopedic surgeon, also testified via a videotaped deposition.[6] 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."

         Furthermore, 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 as follows:

[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.

         Further, 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.

         On 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 extent."

         After 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.

         The court awarded to Karen damages as follows:

General Damages

$22, 500.00

Stipulated Medical Expenses (until January 28, 2014)

$7, 593.05

Medical Expenses for Neck treatment after January 28, 2014

$6, 006.79


$36, 099.84

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