Daniel K. Murchison v. Lyndon Property Ins. Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-933

DANIEL K. MURCHISON, ET AL.

VERSUS

LYNDON PROPERTY INS. CO., ET AL.

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 99-5712
HONORABLE WILFORD D. CARTER, DISTRICT JUDGE

**********

ULYSSES GENE THIBODEAUX
CHIEF JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Michael G. Sullivan, Judges.

AFFIRMED IN PART; REVERSED IN PART;
AMENDED IN PART; AND RENDERED.

Nathan A. Cormie
Nathan A. Cormie & Associates
P. O. Box 1626
Lake Charles, LA 70602
Telephone: (337) 439-2422
COUNSEL FOR:
Plaintiffs/Appellees - Daniel K. Murchison and Ellen Murchison

Larry A. Roach, Jr.
Larry A. Roach, Inc.
2917 Ryan Street
Lake Charles, LA 70601
Telephone: (337) 433-8504
COUNSEL FOR:
Plaintiffs/Appellees - Daniel K. Murchison and Ellen Murchison

Christopher Paul Ieyoub
Plauche, Smith & Nieset
P. O. Drawer 1705
Lake Charles, LA 70602
Telephone: (337) 436-0522
COUNSEL FOR:
Defendants/Appellants - City of Lake Charles and Timothy
Richards

THIBODEAUX, Chief Judge.

In this personal injury claim arising out of an automobile accident case,

defendants, Officer Timothy Richards (Officer Richards) and the City of Lake

Charles, appeal the JNOV granted to plaintiffs, Daniel Murchison and his mother,

Ellen Murchison, in which fault and damages were reapportioned in light of the jury

verdict. Further, appellants request that the provisional grant of a new trial be

reversed.

Officer Richards directed traffic at the intersection of McNeese and

Common Streets in Lake Charles, Louisiana, after finding a truck stalled in the turn

lane. Mr. Murchison proceeded through the intersection following Officer Richards’

orders, at which point he was broadsided twice by oncoming traffic.

The record supports the JNOV in the reallocation of fault; however, we

find the reallocation of damages is not supported. In addition, we find no basis for

the conditional grant of a new trial. For the following reasons, we reverse in part;

affirm in part; amend in part; and render our judgment.

I.

ISSUES

We shall consider:

1) whether the JNOV was proper regarding the
reallocation of fault and damages;

2) whether the trial judge should have recognized the
stipulated credit of $4,037.29 towards the actual
cash value of the plaintiff’s mother’s car; and,

3) whether the grant of a new trial was proper.

1

II.

FACTS

On September 10, 1998, after finding a truck stalled in the turn lane of

the busy intersection, Officer Richards placed himself into the middle of the

intersection of McNeese and Common Streets in Lake Charles, Louisiana and began

directing traffic. The plaintiff, Mr. Murchison, operating a vehicle owned by his

mother, was heading north on Common Street. Officer Richards positioned himself

on McNeese Street and could not see the traffic signal overhead. Officer Richards

proceeded to direct traffic eastbound to westbound, westbound to eastbound, and then

southbound to northbound. Despite the fact that the traffic signal above was red,

Officer Richards gave the northbound-to-southbound traffic the signal to proceed.

Mr. Murchison heeded the officer’s instruction and continued to cross the

intersection. While turning, he was broadsided by a vehicle driven by Ms. Gloria

Istre, and a few seconds later, broadsided by another vehicle driven by Ms. Donna

Suire. Mr. Murchison claims injuries as a result of this accident, and brought suit

against the City of Lake Charles, Officer Richards, Ms. Istre, and Ms. Suire.

The jury returned a verdict and assessed fault in the following

percentages: City of Lake Charles and Officer Richards, twenty-eight percent (28%);

Ms. Istre, twenty percent (20%); Ms. Suire, twenty percent (20%); and the plaintiff,

Mr. Murchison, thirty-two percent (32%). The jury awarded damages of $16,954.00

for Mr. Murchison and $4,000.00 to his mother for the actual cash value of her car.

Mr. Murchison filed a JNOV and, in the alternative, a request for a new trial. The

trial court granted the JNOV and reassessed fault in the following manner: City of

Lake Charles and Officer Richards, seventy percent (70%); Ms. Istre, ten percent

(10%); Ms. Suire’s allocation of fault remained the same, twenty percent (20%); and

2

plaintiff, Mr. Murchison, zero percent (0%). The trial court assessed damages and

awarded $151,842.83 for medical bills, $20,000.00 for loss of enjoyment of life,

$100,000.00 for pain and suffering, and $200,000.00 for loss of future earning

capacity. In the alternative, the trial court granted conditionally a new trial.

Defendants-appellants assert that the trial judge abused its discretion and

ignored the JNOV standard in reallocating fault and damages. In addition, they ask

the JNOV be amended to include the stipulated damage award in the amount of

$4,037.29 for damages paid to Ellen Murchison for her vehicle. They further request

that the conditional grant of a new trial be reversed.

III.

LAW AND DISCUSSION

Louisiana Code of Civil Procedure Article 1811 controls the use of a

judgment notwithstanding the verdict (JNOV). Although the Article does not specify

the grounds on which a trial judge may grant a JNOV, the supreme court in Joseph

v. Broussard Rice Mill, 00-628 (La. 10/30/00), 772 So.2d 94, sets forth the criteria

in determining when a JNOV is proper. A JNOV is proper when the facts and

inferences point so strongly and overwhelmingly in favor of one party that the trial

court believes that reasonable persons could not arrive at a contrary verdict. Id. If

the JNOV is found to be proper, the appellate court reviews the JNOV using the

manifest error standard of review. Davis v. Wal-Mart Stores, Inc., 00-445, p. 5 (La.

11/28/00), 774 So.2d 84, 89.

Allocation of Fault

On review of the record, appellate courts use the same criteria utilized

by a trial judge in determining whether the trial judge erred in granting the JNOV to

3

the jury’s apportionment of fault. Defendants contend that the trial court erred in its

reallocation of fault, particularly the finding that Mr. Murchison had no fault and the

consequent lowering of his percentage to zero (0%). In this case, we must ask

whether the facts and inferences point so strongly and overwhelmingly in favor of

Mr. Murchison that reasonable persons could not arrive at a contrary verdict. We find

the trial court properly granted plaintiff’s motion for JNOV, reversing the jury’s

allocation of fault.

We agree with the trial court in finding that there was no comparative

negligence on the part of the plaintiff, Mr. Murchison. Louisiana Revised Statutes

32:56(A) clearly states, “No person shall fail or refuse to comply with any lawful

order or direction of any police officer or weights and standards police officer

invested by law with authority to direct, control, or regulate traffic.” Furthermore, in

Monceaux v. Jennings Rice Drier, Inc., 590 So.2d 672, 675 (La.App. 3 Cir. 1991),

this court explained that when a law enforcement officer becomes aware of a

dangerous traffic situation, he has the affirmative duty to see the motorists are not

subjected to unreasonable risks of harm. Believing that he was obeying the law, Mr.

Murchison followed the directive of Officer Richards. Mr. Murchison could not and

did not know the risks involved as a result of proceeding through the intersection.

Officer Richards placed himself in a position of authority and commanded the drivers,

taking on the duty to protect motorists. Using the standard set forth, reasonable

persons could not have found Mr. Murchison at fault.

In Watson v. State Farm Fire and Casualty Insurance Co., 469 So.2d

967 (La.1985), the supreme court established that both the nature of the conduct of

each party at fault and the extent of the causal relation between the conduct and

4

damages claimed are to be considered in determining percentages of fault. Moreover,

the supreme court explained:

In assessing the nature of the conduct of the parties,
various factors may influence the degree of fault assigned
including: (1) whether the conduct resulted from
inadvertence or involved an awareness of the danger, (2)
how great a risk was created by the conduct, (3) the
significance of what was sought by the conduct, (4) the
capacities of the actor, whether superior or inferior, and (5)
any extenuating circumstance which might require the
actor to proceed in haste, without proper thought.

Id. at 974. Using the Watson factors, we agree that Officer Richards was proximately

at fault in causing the accident. He was in the best position to deter this accident; in

his capacity as a police officer he had a superior role during the event; his conduct

created the risk; and, he was clearly under a duty to be aware of the dangers. In

addition, he admitted he was negligent in his supervision of the intersection. With

regard to Ms. Istre, the first driver to broadside Mr. Murchison, and Ms. Suire, the

second driver, we agree that they have some responsibility in the fault of this

accident. We find the record supports that Ms. Suire was in a better position to

prevent the second hit and, therefore, more culpable then Ms. Istre. We find that the

trial judge was not manifestly erroneous in his determination of fault.

Allocation of Damages

Mr. Murchison suffered injuries from the accident on September 10,

1998. He visited a chiropractor to treat pain in his neck, back, and shoulder. He

completed treatment with his chiropractor on December 15, 1998. Mr. Murchison

also sought treatment from an orthopedist, Dr. R. Dale Bernauer. Although Dr.

Bernauer found no problems in either Mr. Murchison’s x-rays or his physical

examination, he treated him for spraining and straining injuries until February 17,

1999, when he released the patient from his care. On March 3, 1999, Mr. Murchison

5

returned to the chiropractor after injuring his back while lifting a heavy box. At that

time, he filled out a questionnaire stating that he could perform everyday activities

normally, such as working, lifting, driving, and caring for himself.

On August 18, 1999, Mr. Murchison again returned to his chiropractor

for treatment after suffering an injury while repairing the floor in his mother’s home.

Mr. Murchison sought treatment from Dr. Bernauer, who ordered MRI’s of the

plaintiff’s neck and back. These MRI’s, taken October 13, 1999, revealed no

ruptured or damaged disks, but showed signs only of normal aging. On January 26,

2000, Dr. Bernauer saw Mr. Murchison once more for a check-up, and found his

physical exam to be normal.

Mr. Murchison then began work at Car Care Automotive in March of

2000. He did not return to Dr. Bernauer until February 27, 2002, when he sought

treatment for serious neck pain. On March 11, 2002, Dr. Bernauer ordered new

MRI’s, which revealed mild degenerative changes and, in addition, a herniated disk

at C3-4. Dr. Bernauer operated on Mr. Murchison on August 6, 2002, and again on

April 8, 2003 to treat the herniated disk and its related complications.

Although Mr. Murchison provided extensive descriptions of his painful

conditions, including high blood pressure and depression, and also his loss of

earnings, the central issue is whether or not his injury on September 10, 1998 caused

the herniated disk at C3-4. Dr. Bernauer testified that the herniated disk itself

required surgery, and then caused certain complications requiring further surgery;

however, he admitted in his testimony that he could not medically conclude that the

original accident caused the herniation at C3-4. In fact, Dr. Bernauer described the

herniated disk at C3-4 to the patient, Mr. Murchison, as a “new finding.”

6

Dr. James Perry examined Mr. Murchison only once, on behalf of the

defendants. Dr. Perry noted that the initial MRI taken in October of 1999, a month

after the accident, showed no damage. He concluded that the change causing the

herniated disk occurred after the October 1999 MRI, and that therefore the accident

on September 10, 1998, could not have caused the herniation. The jury awarded

damages and medical expenses only with respect to Mr. Murchison’s medical therapy

through January 26, 2000, which represents his last visit with Dr Bernauer in

reference to his normal October 1999 MRI. The award did not account for medical

expenses incurred thereafter, suggesting that the jury agreed that the range of

damages related to the accident ended in January of 2000. The trial court, however,

disagreed with this assessment, stating in its oral reasons for judgment only that “the

jurors could not have reached the conclusion they reached.” The trial court believed

that Mr. Murchison incurred the medical bills “in good faith,” and increased the jury’s

award of medical expenses to include the herniated disk at C3-4 and its related

treatment. The JNOV also increased the award for loss of enjoyment of life, future

medical expenses, and pain and suffering.

The standard for reviewing a trial court’s decision to grant JNOV on the

issue of damages is whether

“reasonable men in the exercise of impartial judgment
could differ as to the fact that the jury award was either
abusively high or abusively low. If the answer is in the
affirmative, then the trial court erred in granting the JNOV,
and the jury’s damage award should be reinstated. [I]f the
answer is in the negative, then the trial court properly
granted the JNOV.”

Manville v. Citizen, 96-861, p. 6 (La.App. 3 Cir. 2/5/97), 689 So.2d 578, 584. In

Morgan v. Belanger, 633 So.2d 173 (La.App. 1 Cir. 1993), the appellate court

declined to find the trial court erred in refusing to grant a JNOV. Although the trial

7

court stated it disagreed with the jury’s assessment of damages, and believed the jury

disregarded the evidence, the court nevertheless conceded that the figures were within

a reasonable range. The trial court “can make no credibility determinations, nor draw

inferences therefrom.” Id. at 175. The first circuit concluded that “[a] JNOV can be

granted only where the trial court finds that reasonable minds could not reach a

contrary verdict.” Id.

In Simoneaux v. Amoco Production Co., 02-1050 (La.App. 1 Cir. 2003),

860 So.2d 560, writ denied, 04-1 (La. 3/26/04), 871 So.2d 348, the defendants argued

that, in granting a JNOV, the trial court “ignored the jury’s acceptance of the defense

witnesses’ testimony, improperly substituted [its] own judgment for that of the jury,

[made its] own credibility determinations” and increased the damages award from

$375,000.00 to $12,000,000.00. The appellate court agreed, citing the rule that, in

order to supersede properly the jury’s determination of damages, the trial court must

find that a reasonable jury could not have made the award. In Simoneaux, the jury

heard substantial evidence on hazardous contamination of various sites, and the

necessary costs of cleanup. The jury weighed the evidence and found the defense

case credible. Because a reasonable jury could have made the damages assessment

the Simoneaux jury made, “the judge was not empowered to substitute his own

evaluation of the evidence to overturn the damages award.” Id.

Appellate courts have considered the presence of conflicting expert

testimony as a factor in assessing a trial court’s decision to grant a JNOV. For

instance, in VaSalle v. Wal-Mart Stores, Inc., 01-462 (La. 11/28/01), 801 So.2d 331,

several physicians offered conflicting testimony about the severity of the plaintiff’s

injuries and the causal relationship of her later physical condition to the injury that

was the subject of the lawsuit. The jury assigned some damages, but their limited

8

award indicated they chose an award that would reflect only the damages clearly

caused by the relevant injury. The supreme court held that the decision was one a

reasonable and fair-minded jury could reach, noting that the plaintiff did not seek

immediate treatment for her injuries, had suffered other injuries which could have

caused her condition, and continued to work following her accident. Because ample

evidence presented at trial supported the jury’s verdict, the supreme court could not

conclude the verdict was unreasonable, and held that the trial court erred in granting

a JNOV. Id.

Similarly, in Kennedy v. Thomas, 34,530 (La.App. 2 Cir. 4/4/01), 784

So.2d 692, two physicians gave contradictory testimony about the necessity and cost

of future surgeries, and also had different opinions about the permanence of

impairment caused by the injuries. The jury rendered a more conservative award than

desired, and the plaintiffs moved for JNOV. The appellate court found that the facts

and evidence presented by the defendant were “of such quality and weight that

reasonable men in the exercise of impartial judgment could reach different

conclusions.” Id. at 698-99. Thus, the jury must weigh the evidence, including

testimony of expert witnesses, to assess the extent of damages caused by the injury

which the plaintiff may recover.

In general, the testimony of the primary treating physician enjoys greater

weight than an independent examiner who has seen the patient only for limited

purposes of assessing their condition. McKinney v. Coleman, 36,958 (La.App. 2 Cir.

3/14/03), 839 So.2d 1240. The opinion of the treating physician, however, is not

irrebuttable. The medical evidence must be weighed to determine “whether, based

on the totality of the record, the jury was manifestly erroneous in accepting the expert

testimony presented by defendants over that presented by plaintiff.” Miller v. Clout,

9

03-91 (La. 10/21/03), 857 So.2d 458 (citing Freeman v. Rew, 557 So.2d 748 (La.App.

2 Cir. 1990)). Thus, the trier of fact is entitled to place more weight on the testimony

of a physician other than the treating physician if that physician’s evidence is

corroborated. In this case, the plaintiff and his treating physician presented the jury

with evidence of his painful physical condition, the effects of the herniated disk, and

the complications caused by the herniated disk. His treating physician could not,

however, state with any degree of medical confidence that Mr. Murchison’s initial

injuries from the September 1998 car accident caused the herniated disk. In fact, Dr.

Bernauer himself admitted that this was a new finding. In contrast, defendants’

expert witness testified that the herniated disk could not have been caused by the

initial injury. Dr. Perry reasoned that it was not possible that the car accident caused

injuries which did not appear on Mr. Murchison’s MRI in October 1999,

approximately a year after the accident, but which did appear on his March 2002

MRI. He concluded that, given this extended time frame, the change that caused the

herniated disk would have had to occur sometime after the October 1999 MRI. Other

evidence in the record further corroborate conclusions. For instance, Mr. Murchison

was able to maintain employment, and did not seek medical attention between

January 26, 2000 and February 27, 2002. Additionally, Mr. Murchison suffered other

injuries between the time of his car accident and the time he was diagnosed with a

herniated disk. For example, Mr. Murchison returned to his chiropractor in August

of 1999 after hurting his back doing maintenance work on his mother’s home.

Given this imbalanced testimony, the jury was reasonable in concluding

that the timeline of Mr. Murchison’s injuries prevented a finding that the September

1998 accident caused his herniated disk. The jury made a decision about the relative

strength of the evidence. Because the evidence supported this decision, it was

10

improper for the trial court to grant the JNOV and, in doing so, substitute its own

assessment of the evidence for that of the jury. We, therefore, reinstate the jury’s

award of damages subject to the new allocation of fault.

Stipulated Damages

Defendants request that the JNOV reflect a credit for the $4,037.29 paid

to Ellen Murchison, the cash value of her car. The record indicates that the parties

stipulated the amount paid toward the value of the vehicle; however, the judgment

does not recognize the credit in the award for damages. We, therefore, amend the

judgment to reflect the stipulation and credit the defendants in the amount of

$4,037.29.

New Trial

Louisiana Code of Civil Procedure Article 1811(c)(2) states that “if the

motion for a new trial has been conditionally granted and the judgment is reversed on

appeal, the new trial shall proceed unless the appellate court orders otherwise.” The

applicable standard of review in such a matter is whether the trial court abused its

discretion. Anthony v. Davis Lumber, 629 So.2d 329 (La.1993). We find that the

jury’s verdict on damages was supported by a fair interpretation of the evidence,

including Dr. Bernauer’s inability to provide a confident medical opinion that the

accident caused the injury, in contrast with Dr. Perry’s testimony that it was

implausible that Mr. Murchison’s injury resulted from the September 8, 1998,

accident in light of the time frame in which the ruptures occurred in relation to the

accident. Where the evidence supports the jury’s verdict, the grant of a new trial must

be reversed. Davis v. Witt, 02-3102, p. 23 (La. 07/02/03), 851 So.2d 1119, 1134.

11

IV.

CONCLUSION

For the foregoing reasons, the JNOV granted for the reallocation of fault

is affirmed. The JNOV granted for the reallocation of damages and the conditional

new trial is reversed. We amend the judgment to reflect the stipulated credit in the

amount of $4,037.29 to be applied to Ellen Murchison’s property damage award.

Costs of this appeal are assessed equally to defendants, Officer Timothy Richards and

the City of Lake Charles, and plaintiffs, Daniel Murchison and Ellen Murchison.

AFFIRMED IN PART; REVERSED IN PART; AMENDED IN

PART; AND RENDERED.

12