Audrey Beverly v. Joseph Guidry

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

04-539

AUDREY BEVERLY, ET AL.

VERSUS

JOSEPH GUIDRY, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 78845
HONORABLE KRISTIAN DENNIS EARLES, DISTRICT JUDGE

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GLENN B. GREMILLION
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Glenn B. Gremillion and
Elizabeth A. Pickett, Judges.

THIBODEAUX, C.J., concurs in part and dissents in part and assigns written
reasons.

AFFIRMED.

Edward O. Taulbee, IV
Taulbee & Escott, L.L.C.
P. O. Box 2038
Lafayette, LA 70502-2038
Telephone: (337) 269-5005
Counsel For Defendants/Appellees
Louisiana Farm Bureau Mutual Insurance Company
and Joseph Guidry

Stanton Kyle Sherman
111 Mercury Street
Lafayette, LA 70503
Telephone: (337) 237-7171
Counsel For Plaintiffs/Appellants
Audrey Beverly and Hillman Garrick, Jr.

GREMILLION, Judge.

In this low-impact automobile accident dispute, plaintiffs, Audrey

Beverly and Hillman Garrick, Jr., appeal the trial court’s finding that no injuries were

sustained from the accident and, therefore, its failure to award damages. The

defendants, Joseph Guidry and Louisiana Farm Bureau Mutual Insurance Company,

appeal the trial court’s judgment that an accident occurred. For the following

reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On the morning of January 28, 2002, Beverly was illegally parked in a

handicapped spot in a Wal-Mart Shopping Center parking lot. Beverly asserts that

she and Garrick were sitting in her parked Jeep Cherokee when Guidry backed his

Chevrolet pickup truck from his parking space into her car striking the left rear

corner. Both Beverly and Garrick claim injuries as a result of this alleged impact.

The trial court held that Beverly had proven an accident occurred, but concluded that

the minimal force of the impact militated against an award of damages. Both parties

now appeal. We will consider whether the trial court erred in finding that an accident

occurred and whether it erred in finding that no injury occurred as a result of the

accident.

LAW

As set forth in Arceneaux v. Domingue, 365 So.2d 1330 (La.1979),

appellate courts may not disturb the factual findings of the trier of fact in the absence

of manifest error. Arceneaux laid out a two prong test for appellate review of facts:

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1) The appellate court must find from the record that there is
reasonable factual basis for the finding of the trial court, and

2) The appellate court must further determine that the record
establishes that the finding is not clearly wrong (manifestly
erroneous).

Id.

ACCIDENT

Guidry maintains that the accident did not occur and, further, that the

vehicles were in a different area of the parking lot than what the plaintiffs assert.

Plaintiffs hired an accident reconstructionist, Richard Fox. Fox testified that,

although he could not find anything on Guidry’s bumper, he still believed that the

damages were consistent with the manner in which the bumpers on the vehicles could

have come together. In addition, Beverly and Garrick testified to hearing the impact

as it was occurring. After a review of the depositions and the reports, the trial court

found that the plaintiffs had carried their burden of proof that there was contact

between the vehicles. We find no manifest error in the trial court’s conclusion that

a contact occurred.

INJURY

Beverly argues that the trial court’s finding that because the contact was

so minimal, she and Garrick did not sustain injuries, is erroneous. We disagree. The

plaintiff bears the burden of proving, by a preponderance of the evidence, a causal

connection between the accident and subsequent injury, which is generally

accomplished through medical testimony. See Petersen v. State Farm Auto. Ins. Co.,

543 So.2d 109 (La.App. 3 Cir.), writ denied, 546 So.2d 1223 (La.1989).

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The trial court found that the doctors who testified on Beverly’s behalf,

who concluded that the contact caused her resulting injuries, based their findings on

Beverly’s erroneous reports that the impact was more significant than the trial court

found. We agree. Beverly stresses that it would be erroneous and would risk setting

a dangerous “precedent” to conclude that minimal impact accidents necessarily lead

to minimal injuries. We do not find that occurred in this case. Moreover, we find it

would be an erroneous “precedent” to suggest that anytime a vehicle makes contact

with another vehicle, however slight, a plaintiff is automatically entitled to damages

because she was able to provide medical testimony that the “accident” was the cause

of or aggravated her injuries. In cases where there are no objective signs of injury,

a plaintiff’s subjective claims of causation, as subsequently related to a medical care

provider, would ensure a plaintiff’s success whether the claim was valid or not.

The trier of fact is in the best position to determine the extent of the

accident and resultant injuries, if any. A trial court or jury can find that a plaintiff

would have had the same medical problems if the accident had not occurred. See

Delahoussaye v. State Farm Mut. Auto. Ins. Co., 520 So.2d 891 (La.App. 3 Cir.), writ

denied, 522 So.2d 561 (La.1987). It is also proper for the trier of fact to “consider the

minimal nature of the accident.” Fletcher v. Langley, 631 So.2d 693, 698 (La.App.

3 Cir. 2/2/94), writ denied, 635 So.2d 1139 (La. 4/7/94).

The trial court made a factual determination that Beverly’s alleged

injuries did not result from the contact between the Guidry truck and Beverly’s Jeep.

This finding was reasonable based on the evidence presented at trial.

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Beverly saw several physicians and health care providers regarding pain

in her neck, shoulder, arm, and her trapezius area. She visited Dr. Karrie Kilgore, her

family physician, on January 30, 2002, two days after the accident. Dr. Kilgore

diagnosed Beverly with cervical strain. Dr. Kilgore had seen Beverly thirty-five

times for various medical complaints since March 15, 1999. She testified that

Beverly’s complaints of shoulder and arm pain were the same as her complaints

before the accident and that Beverly’s own description of the intensity of her pain

remained the same pre and post-accident. Dr. Kilgore testified that Beverly’s

shoulder and arm complaints were chronic and would flare up when she lifted

something heavy. Although Dr. Kilgore testified that she felt she was exaggerating

her complaints following the accident, she still believed that the cervical strain was

more probably than not related to the accident of January 28, 2002, and that

Beverly’s symptoms in her upper left extremity were more probably than not

aggravated by the alleged accident.

Beverly also saw Dr. John Humphries, an orthopedic doctor. Dr.

Humphries diagnosed her with a neck sprain, post-traumatic headache disorder, and

a strain of the left shoulder. Dr. Humphries prescribed medication and physical

therapy, and told Beverly she was unfit to work until June 26, 2002, about six months

after the accident. The record revealed that Beverly did not inform Dr. Humphries

of her prior pain and injuries but only of the January 28, 2002 accident. However,

even after Dr. Humphries was apprised of her past conditions, he still believed that

it was, more probable than not, that the current condition resulted from the January

28, 2002 accident. Beverly also saw Dr. David Barczyk, a chiropractor; Dr. Alan

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Appley, a neurosurgeon, who found evidence of cervical spondylosis, which he

believed was aggravated by the January 28, 2002 accident; and, Dr. Wayne

Lindemann, who diagnosed her with whiplash cervical injury.

Garrick saw Dr. Humphries on February 7, 2002, and he was discharged

on June 26, 2002. He received approximately six months of treatment for a neck

sprain and a sprain of the upper right back. Garrick also had preexisting degenerative

disc disease.

Beverly did not inform all of the numerous doctors who testified on her

behalf of her preexisting condition. She merely related to them that she was

experiencing neck and shoulder pain following a vehicular accident. A doctor is not

obligated to investigate the severity of the accident, and generally takes his patient’s

word for the precipitating factor leading to the alleged injuries. However, it is the

trial court or jury’s duty to determine if the injury is causally related to the accident

based on the facts presented to it and the credibility of the witnesses. While an

appellate court can review the witness testimony, the trial court is in a far better

position to assess witness credibility.

Beverly testified that she saw Guidry’s Chevrolet pickup truck pull away

from the rear of the vehicle and proceed out of the parking lot. Beverly stated that

she followed the Guidry vehicle to a Stine store located approximately one-half mile

from Wal-Mart. Upon reaching Guidry, Beverly questioned him about why he did

not stop after the alleged accident and she contacted the police to report the accident.

Beverly herself testified that she did not tell Dr. Humphries about her prior

complaints of shoulder pain or surgeries pertaining to her back. The former surgeries

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in the mid 1980's were a result of a slip and fall in an A & P grocery store. She

testified that prior to the surgery she was having pain in the neck and arm. She went

on to testify that she never reported having any shoulder or neck pain prior to the

January accident because she did not think it was related to the two fusion surgeries

in the 1980's. She also testified that the neck and shoulder pain had completely

resolved after the surgeries, but went on to testify that in 1991 she filed a claim for

disability because of the continued pain in her neck, shoulder, and arm which was

keeping her from working. She further admitted that in 1995 she sought treatment

from a Dr. Menard for continued problems with her neck. Beverly testified that she

lost her job because of the accident, however on cross-examination she admitted she

had been reprimanded for being tardy, being outside of her work area, and leaving

early. She also testified that, prior to the accident, Dr. Kilgore had restricted her from

working for two week periods due to her neck, arm, and shoulder pain. Finally,

Beverly admitted she did not have a handicapped parking tag but parked in the spot

anyway, which she knows is wrong, but she does anyway from time-to-time.

Garrick testified and described the impact as a “wham.” He stated that

he had neck and shoulder pain for several months and could not work. He also

testified that his pain never got better while under Dr. Humphries’ care and that it

continued even through the time of trial. Garrick testified that he “caught a little jolt”

meaning his body went forward and his head popped back, although he did not strike

anything in the vehicle.

Officer Joey Babineuax, the Lafayette police officer who investigated

the “accident,” testified that he was unable to identify any new damage to the

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bumpers of either vehicles. Beverly admitted to Officer Babineaux that she had prior

damage to the rear of the bumper of the Jeep Cherokee. Guidry also informed the

officer that he had prior damage on his rear bumper. The photographic evidence,

which depicts the damage Beverly alleges the Guidry’s caused, reveals an

approximately three inch crease in the far left bumper. There was no testimony

regarding the cost of repairs.

Gladys Guidry, Joseph’s wife, testified that she and her husband of fifty

years left the Wal-Mart parking lot and proceeded to Stine Lumber Company where

Beverly informed them that they had bumped her Jeep. She testified that as they were

leaving Wal-Mart, her husband proceeded very slowly out of the parking spot because

there was a vehicle parked very close to their truck on the left-hand side. Gladys

stated she did not feel the truck hit anything and she had no idea that the truck had

come in contact with anything. Guidry testified there was some pre-existing damage

on left side of the bumper and that nothing occurred on that day

Joseph testified that he was first made aware that someone was claiming

that he had hit the Beverly car when he got to the Stine parking lot. He testified that

Beverly came running toward him stated that he had hit her car. Joseph testified that

he told her he did not hit the car and that Beverly claimed he was lying. Joseph

testified that because of the little car to the left he had to wriggle out very slowly

“inch by inch” of the parking lot to make sure he had clearance. He stated he did not

believe he hit anything and did not feel anything.

At the conclusion of the trial, in its oral reasons for judgment, the trial

court stated:

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As you may know, these are difficult decisions when two parties are
saying different versions of what happened. It makes my job harder than
normal. But after careful consideration of the testimony and looking at
the depositions and looking at the reports, I find that the plaintiff has
carried their burden of proof in proving that there was contact between
plaintiff and defendant’s vehicle. However, I find that the contact was
so minimal that plaintiff did not sustain any injury. The plaintiffs’
doctor’s opinion that the accident caused their injuries are based upon
the reports by the plaintiffs that the impact was more significant than I
find actually occurred. Therefore, the plaintiffs’ claim for general and
special damages are denied, and I’m going to divide court costs between
the parties.

We find no error in the trial court’s determination that this “accident”

did not cause the substantial injuries that Beverly and Garrick allege resulted from

this contact. Based on the evidence presented at trial, reasonable people could have

found that the contact between the Beverly Jeep and the Guidry truck did not result

in the injuries claimed by Beverly and Garrick. It was readily established that

Beverly had a history of chronic neck and arm pain related to the two fusions in the

1980's. Additionally there was substantial evidence calling into question her and

Garrick’s credibility.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are

assessed equally between the plaintiffs-appellants, Audrey Beverly and Hillman

Garrick, Jr. and the defendants-appellants, Joseph Guidry and Louisiana Farm Bureau

Mutual Insurance Company.

AFFIRMED.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-539

AUDREY BEVERLY, ET AL.

VERSUS

JOSEPH GUIDRY, ET AL.

THIBODEAUX, C.J., concurring in part and dissenting in part.

I concur in the majority’s decision to affirm the trial court’s judgment on

the issue of whether an accident occurred. I disagree with the failure of the trial court

and the majority to find a causal connection between the claimed injuries and the

accident.

The trial court’s finding “that the contact was so minimal that plaintiff

did not sustain any injury” is incorrect as a matter of law. This legal error impacted

its factual finding that no injury occurred and requires a de novo review. The law in

the third circuit is clear that the degree of injury is not necessarily proportionate to the

force of the impact. The trial court’s observation contravenes the holding in Desselle

v. LaFleur, 03-562, p. 6 (La.App. 3 Cir. 2/4/04), 865 So.2d 954, 958 (quoting Seegers

v. State Farm Mutual Auto Ins. Co., 188 So.2d 166, 167 (La.App. 2 Cir. 1966)) where

we stated:

It is strenuously urged that the force of impact was
so slight it could not have caused the injuries of the nature
and extent complained of by the plaintiff, Mrs. Seegers.
This argument, in part, is based upon the evidence in the
record to the effect that the only damage to the rear of the
Seegers automobile was the breaking of the tailpipe bracket

and a small dent in the rear bumper requiring a cost of
repair of only $8.88. While it is indisputably true that the
impact was slight, we think it would be a dangerous
precedent to attempt to measure the degree of injuries in
direct proportion to the force of a collision. The testimony
of both the medical experts and the lay witnesses
established the fact that Mrs. Seegers did sustain some
injuries and the minimal force the collision is, therefore, of
no material importance.

Furthermore, the trial court was clearly wrong in its finding that “[t]he

plaintiffs’ doctor’s [sic] opinion that the accident caused their injuries are based upon

the reports by the plaintiffs that the impact was more significant than I find actually

occurred.” That is not what the doctors’ analyses were based upon. Rather, the

physicians’ conclusions were based upon uncontroverted medical examinations and

diagnoses.

In this case, every doctor testified that the injuries for which they treated

Ms. Beverly were more probable than not related to the January 28, 2002 automobile

accident. Dr. Karrie Kilgore testified that Ms. Beverly’s previous symptoms could

have been aggravated and she was newly diagnosed with cervical strain:

Q. It was your medical opinion on the date that you
diagnosed her with a cervical strain that she did have
cervical strain, correct?

A. Yes.

Q. And isn’t it true that you prescribed her medication and
physical therapy?

A. Not on the first visit. On the first visit I prescribed
medication and moist heat and return in two weeks.

Q. Okay. How about the second visit?

A. The second visit was six days later. She was prescribed
a different anti-inflammatory, and x-ray of her neck, and
physical therapy.

Q. With everything that I’ve discussed and the medical
records in front of you, do you believe more probable than

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not that the accident of January 28th, 2002 either caused or
at least aggravated any condition she had, meaning any
symptoms you treated for on those dates, January 30th,
2002, and February 5th, 2002?

A. I agree that it probably aggravated some of her previous
existing symptoms.

Q. However, you just testified earlier that she didn’t have
any previous—you had never diagnosed her with cervical
strain, correct?

A. Correct.

Q. Especially localized on the left and going up to the head?

A. Correct.

Testimony from Dr. Barczyk revealed a similar conclusion:

Q. Dr. Barczyk, given the information you gathered from
Ms. Beverly, along with your physical examination, as well
as the diagnostic testing, with your experience in low-
impact crashes, as well as treating the spine, can you tell
this Court that your medical opinion is more probable than
not that the symptoms you treated Ms. Beverly for were
related to the automobile accident of January 28th, 2002.

A. Yes, that is my opinion.

Q. Dr. Barczyk, if Audrey Beverly’s previous medical
records from her treating physician, Dr. Kilgore, indicated
that on August 6th of 2001, she had complaints of left
shoulder pain with no history of trauma; that the doctor
prescribed anti-inflammatories, and approximately two
weeks later Dr. Kilgore indicated in her medical records
that the muscular pain had resolved, that wouldn’t alter
your opinion, would it?

A. No, it wouldn’t.

In October 2002, after seeing several other doctors, Ms. Beverly saw Dr.

Appley with continued complaints of neck pain and tenderness. After an MRI scan,

his proposed treatment included trigger spot injections over a period of time into her

spine and neck area for pain management. Dr. Appley testified that he believed that

Ms. Beverly’s condition was a result of the January 28th, 2002 accident:

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Q. [T]aking everything into account with your
examination, the medical evidence you have reviewed, the
history you have reviewed, is it still your medical opinion
that the symptoms that you treated Ms. Beverly for were
more probably than not related to the automobile accident
of January 28th, 2002?

A. I think the symptoms that I treated her for and
especially the symptoms in the upper part of the neck
were—and again, given the fact that her complaints
proximally related to the injury resulted from—at least
resulted from or were aggravated by the motor vehicle
accident.

The record reflects that the medical evidence and testimony were

uncontradicted and established a causal connection between the accident and injuries

sustained by Ms. Beverly and Mr. Garrick. The trial judge was manifestly erroneous

when he reasoned that the doctors’ opinions were based upon reports by the plaintiffs

that the impact was more significant than the trial judge found actually occurred. The

majority compounds this error by affirming his judgment.

The majority observes correctly that “[t]he plaintiff bears the burden of

proving, by a preponderance of the evidence, a causal connection between the

accident and subsequent injury, which is generally accomplished through medical

testimony.” While acknowledging this to be the law, the majority inexplicably, and

wrongly, concludes that “we find it would be an erroneous ‘precedent’ to suggest that

anytime a vehicle makes a contact with another vehicle, however slight, a plaintiff is

automatically entitled to damages because she is able to provide medical testimony

that the ‘accident’ was the cause of or aggravated her injuries.” (Emphasis supplied).

If medical testimony is insufficient or inadequate, what other evidence should there

be? That is exactly what the law is. The majority recognizes it, repeats it in its

opinion, and yet refuses to apply it.

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Another glaring misstatement of the law is the majority’s suggestion that

medically-corroborated subjective complaints can never be the basis of recovery

absent objective signs of injury. This bold and incorrect assertion of law is

unsupported by any codal, statutory, or jurisprudential authority. In this case, all of

the plaintiffs’ subjective complaints were buttressed by the opinions of every

physician and health care provider. The majority suggests that recovery for a

subjective injury can occur only if the injury manifests itself in an objective way. By

extension, the majority, I suppose, would completely vitiate any recovery in cases

where objective signs of an injury may be absent, such as valid psychological injuries

and for conditions such as, for example, traumatic neurosis. That suggestion is

untenable and inconsistent with Louisiana law.

For the foregoing reasons, I respectfully dissent.

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