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Herron v. State Farm Mutual Automobile Insurance Co.

Court of Appeals of Louisiana, Third Circuit

December 30, 2019

JAMES HERRON
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, ET AL

          APPEAL FROM THE PINEVILLE CITY COURT PARISH OF RAPIDES, NO. 2017-CV-00376 HONORABLE GARY K. HAYES, CITY COURT JUDGE

          Bradley J. Gadel Bradley J. Gadel, APLC COUNSEL FOR DEFENDANTS/APPELLANTS: GoAuto Insurance Company Robert Newman

          Byron O'Neal O'Neal Law Firm COUNSEL FOR PLAINTIFF/APPELLEE: James Herron

          Michael T. Johnson Duncan McKeithen Johnson, Siebeneicher & Ingram, APLC COUNSEL FOR DEFENDANTS/APPELLEES: Lalitha Alla State Farm Mutual Automobile Insurance Company

          Court composed of Shannon J. Gremillion, Candyce G. Perret, and Jonathan W. Perry, Judges.

          JONATHAN W. PERRY JUDGE

         Defendants/Appellants, GoAuto Insurance Company ("GoAuto") and Robert Newman ("Mr. Newman") (hereinafter collectively referred to as "Appellants"), appeal the judgment of the trial court in favor of Plaintiff/Appellee, James Herron ("Mr. Herron"), alleging error with its judgment, fault allocation, and quantum assessment. For the following reasons, we affirm as amended.

         FACTUAL AND PROCEDURAL HISTORY

         This personal injury litigation stems from an automobile accident which occurred on May 3, 2017, when a collision occurred between a 2002 Ford F150 driven by Mr. Newman and a 2015 Tesla S/4 driven by Defendant/Appellee, Lalitha Alla ("Ms. Alla").[1] At the time of the accident, Mr. Herron was a guest passenger in Mr. Newman's truck. Following the accident, Mr. Herron sought medical attention for neck pain, back pain, and headaches. On July 27, 2017, Mr. Herron filed a petition for damages, naming as defendants both drivers and their insurers. Mr. Herron's petition alleged:

[T]he accident occurred when LALITHA ALLA failed to stay a safe distance from the front of the Newman vehicle and improperly backed her vehicle into the front of the Newman vehicle, occupied by JAMES HERRON, AND/OR ROBERT NEWMAN failed to stay a safe distance from the rear of the ALLA vehicle and rear-ended the ALLA vehicle[.]

         A bench trial was held on July 27, 2018, after which memoranda were submitted, and the matter was taken under advisement. On August 31, 2018, the trial court issued the following written reasons, quoted in pertinent part:

The Court finds Robert Newman to be 100% at fault for the automobile accident that occurred on May 3, 2017, in Pineville, Louisiana. The testimony of a very credible witness, Amy Roden, who clearly and unequivocally testified that she was a guest passenger of the defendant, Dr. Lalitha Alla, and that they were stopped for a red light in the turn lane of LA Hwy 116 when their vehicle was lightly rear ended by the vehicle operated by Robert Newman. Ms. Roden clearly stated and corroborated the testimony of Ms. Alla that the vehicle they were in, a 2015 Tesla, did not roll back and strike the vehicle operated by Robert Newman, in which the plaintiff, James Herron, was a guest passenger. The testimony of the plaintiff, James Herron, is not believable due to many inconsistencies throughout his testimony. Ms. Alla testified when she got out her vehicle to inspect her car for damage, she discovered no visible damage to the rear of her car and stated under oath that since there was no damage she did not want to get anyone in trouble so she merely left after it was determined that no one was injured nor observed any property damage. For the above mentioned limited reasons[, ] the Court finds Robert Newman and GoAuto Insurance to be liable.

         Damages:

As to Damages, the Court relies upon the expert testimony of Dr. Bradley Kirzner who was qualified in Chiropractic and Biomechanics. Dr. Kirzner testified that low impact collisions can and do cause injuries. Since there was no other expert testimony to dispute this theory, the Court must accept his testimony. Based upon Dr. Kirzner's testimony, James Herron sustained a neck/back and headaches injury as a result of the accident. According to Dr. Kirzner's medical records and testimony, Mr. Herron actively treated with him from the initial visit on June 5, 2017 until December 18, 2017. It is the opinion of this Court that apparently Mr. Herron responded quite well to the treatment and [had] improved pain and [was] discomfort free after his last active treatment of December 18, 2017[, ] since [there was] no follow up treatment until the week of the trial. Dr. Kirzner also testified that Mr. Herron stated that he was looking down at a phone at the time of impact, which leads the Court to believe that he was not looking forward to even witness the accident.

         Mr. Herron was awarded $17, 500.00 in general damages and $4, 713.83 in special damages. The trial court also assessed GoAuto and Mr. Newman with costs, including fees for depositions, expert witnesses, medical records, and court costs.

         On September 13, 2018, the trial court signed a judgment in favor of Mr. Herron, decreeing that GoAuto and Mr. Newman were liable "jointly and in solido" for all general and special damages, court costs, [2] and legal interest. The judgment also contained a Rule 9.5 certificate noting GoAuto and Mr. Newman objected to the proposed judgment.[3]

         GoAuto and Newman filed a motion for new trial, contesting the trial court's allocation of fault, assessment of damages, and failure to recognize the bodily injury liability limits of $15, 000.00 provided by GoAuto to Mr. Newman. The motion for new trial was considered and denied on November 30, 2018, [4] with a judgment to this effect signed on December 7, 2018. Appellants then perfected a suspensive appeal.

         ASSIGNMENTS ...


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