Robert C. Jordan v. Zoie R. Vice

NOT FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-866

ROBERT C. JORDAN

VERSUS

ZOIE R. VICE, ET AL.

**********

APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 100,324-E
HONORABLE KEITH RAYNE JULES COMEAUX, DISTRICT JUDGE

**********

J. DAVID PAINTER
JUDGE

**********

Court composed of Glenn B. Gremillion, Elizabeth A. Pickett, and J. David Painter,
Judges.

AFFIRMED.

Brad J. Brumfield
Smith & Brumfield, L.L.C.
7576 Goodwood Blvd.
Baton Rouge, LA 70806
Counsel for Defendant-Appellant:
Allstate Insurance Company

Harold G. Toscano
Attorney at Law
One Lakeshore Dr., Suite 1710
Lake Charles, LA 70629
Counsel for Defendant-Appellant
Allstate Insurance Company

David Groner
Attorney at Law
P.O. Box 9206

New Iberia, LA 70506
Counsel for Plaintiff-Appellee:
Robert C. Jordan

PAINTER, Judge.

Defendant, Allstate Insurance Company (Allstate), appeals a jury verdict

awarding Plaintiff, Robert C. Jordan (Jordan), damages for injuries sustained in a

motor vehicle accident. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On April 13, 2002, Jordan was driving his vehicle on Duperier Street in New

Iberia, Louisiana, when he was involved in a collision with a vehicle driven by Zoie

Vice (Vice). Vice was insured by Allstate. Jordan filed suit against Vice and

Allstate. The parties stipulated that Vice was solely at fault in causing the accident

and that Jordan was free from any and all fault with respect to the collision. The

parties further stipulated that Jordan injured his left knee and lower back in the

accident, that he also suffered numbness to his left toe as a result of injuries sustained

in the accident, and that his medical bills for said injuries totaled $589.00. Jordan

contended that he also suffered a right shoulder dislocation requiring surgical repair;

however, Allstate contended that this injury was not caused by the subject accident.

The matter proceeded to trial by jury and resulted in a verdict in Jordan’s favor.

The jury found that Jordan’s shoulder injury was “in fact caused or aggravated by the

accident.” The jury went on to award a total of $90,055.75 in damages to Jordan.

That amount included $22,555.75 for medical expenses; $40,000.00 for present, past,

and future pain and suffering; $25,000.00 for present, past, and future mental

anguish; and $2,500.00 for loss of enjoyment of life. Allstate now appeals to this

court, asserting that the trial court incorrectly instructed the jury with respect to the

application of the presumption that an accident caused an injury. Allstate further

contends that, because of this incorrect instruction, the jury was prevented from

dispensing justice. Allstate also asserts that the jury award was excessive.

1

DISCUSSION

Jury Instructions

The trial court gave the following instruction, commonly referred to as the

Housley presumption,1 to the jury:

If you find that the plaintiff was in good health before the accident, but
after the accident plaintiff had an injury, and that there is a reasonable
possibility that the accident caused the injury, the law presumes that the
accident caused the injury.

Allstate timely objected to the wording of this instruction. Allstate’s contention was

that the instruction, as given by the trial court, omitted pertinent language to the effect

that Housley imposes a requirement that the symptoms must appear shortly after the

accident and continuously manifest themselves. The Louisiana Supreme Court in

Housley, 579 So.2d at 980, quoted the following language from Lucas v. Insurance

Company of North America, 342 So.2d 591, 596 (La.1977):

A claimant’s disability is presumed to have resulted from an
accident, if before the accident the injured person was in good health,
but commencing with the accident the symptoms of the disabling
condition appear and continuously manifest themselves afterwards,
providing that the medical evidence shows there to be a reasonable
possibility of causal connection between the accident and the disabling
condition.

Allstate contends that the jury’s verdict was erroneous and must be set aside because

the jury was not advised that the presumption only applied if Jordan’s shoulder

complaints continuously manifested themselves following the accident and if medical

evidence demonstrated a reasonable possibility of a causal connection between the

accident and the shoulder complaint. We disagree.

A trial court should give all requested instructions that correctly
state the law, provided that they are material and relevant to the
litigation. Courts are not obligated to give the specific jury instructions
submitted by the parties, but omission of a requested instruction
containing an essential legal principal [sic] may constitute reversible

1
From Housley v. Cerise, 579 So.2d 973 (La.1991).

2

error. A court has fulfilled its duty if its instructions fairly and
reasonably point out the issues presented by the pleadings and evidence
and provide the principles of law necessary to resolve those issues.

An appellate court must exercise great restraint before overturning
a jury verdict on the basis of erroneous instructions. Consequently, we
will overturn the jury's verdict in the case sub judice on the basis of such
an error only if the instructions, taken as a whole, were so incorrect or
inadequate as to preclude the jury from reaching a verdict based on the
relevant law and facts. Ultimately, the pertinent inquiry is whether the
jury was misled to such an extent as to be prevented from doing justice.

Square v. LeBlanc, 04-1500, p. 10 (La.App. 3 Cir. 6/1/05), 903 So.2d 1178, 1185,

writ denied, 05-1746 (La. 1/13/06), 920 So.2d 240 (quoting Mathews v. Dousay, 96-

858, p. 8 (La.App. 3 Cir. 1/15/97), 689 So.2d 503, 509-10), (alteration in original).

As prior courts have recognized,

The presumption of causation relied on by the supreme court in
Housley was not an original jurisprudential development. In fact, this
presumption had first been fashioned by the supreme court some
twenty-three years prior in Bertrand v. Coal Operators Casualty Co.,
253 La. 1115, 221 So.2d 816, 827 (1968) (on rehearing). Additionally,
the same presumption was relied on in Johnson v. Travelers Insurance
Co., 284 So.2d 888 (La.1973) and in Lucas [v. Ins. Co. of N. Am., 342
So.2d 591 (La.1977)]. However, each of these cases arose in the
context of a worker’s compensation claim. Housley, then, represents an
extension of this presumption into the realm of general delictual actions.

Juneau v. Strawmyer, 94-903, p. 5 (La.App. 4 Cir. 12/15/94), 647 So.2d 1294, 1298.

Even prior to Housley, this court applied the presumption outside the context of

workers’ compensation and noted that “in order for the presumption to apply, the

plaintiff must prove that she was in good health prior to the accident and that there

is a causal relationship between the accident and the condition.” Heath v. Northgate

Mall, Inc., 398 So.2d 132, 134 (La.App. 3 Cir. 1981).

What is important is that the charge, as a whole, reflects the requirements of

Housley: (1) that the plaintiff was in good health prior to the accident; (2) that there

is a temporal connection between a defendant’s conduct and the manifestation of a

plaintiff’s condition; and (3) that there is evidence, either medical, circumstantial, or

3

common knowledge, of a reasonable possibility of causation between the accident

and the claimed injury. See Juneau, 647 So.2d 1294.

In this case, the trial court instructed the jury as indicated above and also told

the jury:

A required element of the plaintiff’s case, under any theory of
law, is that the plaintiff’s damages be caused by the defendant. The
defendant is the legal cause of plaintiff’s damages if the conduct of the
defendant is the cause in fact of those damages.

To be a cause in fact, the conduct of the defendant must be a
substantial factor in causing damage.

Based on the entirety of the instructions given to the jury, we cannot say that the jury

was misled to such an extent as to be prevented from doing justice.

Even though Jordan refused medical assistance at the scene of the accident, he

testified that, a couple of days after the accident, he was trying to get an appointment

with Dr. W. Stanley Foster, who had diagnosed Jordan with congenital spondylolysis

in 1999. Jordan, who was nineteen years old at the time of the accident, testified that

his back hurt, that his left knee was turning purple and swelling, and that he felt

immediate pain in his shoulder which led to his shoulder being sore and limited in

motion for some time after the accident. Jordan further testified that his back was his

main concern since he had previous spinal surgery to repair the congenital

spondylolysis when he was sixteen years old. Following that surgery, which required

a fusion and the placement of screws, he returned to playing sports in high school.

Jordan first saw Dr. Foster in connection with the subject accident on April 18,

2002, and complained of back and knee pain. He returned to Dr. Foster on May 9,

2002, and complained of his right big toe being numb. Dr. Foster then referred

Jordan to Dr. David S. Muldowny, who diagnosed a lumbar sprain status-post

spondylolysis repair. Jordan did not return to Dr. Foster until September 25, 2003,

4

at which time he complained of shoulder instability. He also told Dr. Foster that he

had injured his shoulder some nine years prior while skiing. At trial, Jordan testified

that following the accident, the soreness in his shoulder went away after a while but

that he had some episodes where he would wake up in the morning, maybe twice a

month, with a sore shoulder. Then, that continued to the point where he would wake

up with his shoulder out of socket, and the situation got progressively worse. Jordan

testified that he did not have any injuries to his shoulder after the accident but before

September 25, 2003. Dr. Foster testified that, according to patient history, Jordan’s

shoulder started dislocating about three months after the accident. According to Dr.

Foster, on September 25, 2003, Jordan still had mild muscle spasms in his back and

had a positive apprehension test in his right shoulder. Dr. Foster referred Jordan to

Dr. John P. Schutte, who examined Jordan and ordered an MRI of the shoulder. The

MRI showed a Hill-Sachs lesion, which Dr. Schutte testified was caused by trauma.

Dr. Schutte ultimately performed surgery to reconstruct Jordan’s right shoulder on

October 22, 2003.

The finding of the temporal element is a factual finding that we cannot disturb

absent manifest error. Mart v. Hill, 505 So.2d 1120 (La.1987). The record in this

case supports a temporal connection between the accident and the shoulder

complaints, thus, we must give due deference to the jury’s finding of fact that

Jordan’s shoulder injury was, in fact, caused or aggravated by the accident. Allstate’s

argument that there is a lack of continuous complaints of shoulder pain following the

accident because Jordan did not seek medical treatment until some seventeen months

after the accident, and only when his shoulder separated after climbing out of a boat,

is without merit. “[F]ailure to seek medical treatment for several months does not

preclude the possibility that [the plaintiff] was, in fact, injured, and in pain.” Poland

5

v. State Farm Mut. Auto. Ins. Co., 03-1417, p. 12 (La.App. 1 Cir. 6/25/03), 885 So.2d

1144, 1150-51. In sum, we find that Jordan was entitled to the Housley presumption

because there was no evidence that he was not in good health prior to the automobile

accident of April 13, 2002; there was a temporal relationship between the accident

and the shoulder complaints; and there was evidence of a reasonable possibility of

causation between the accident and the shoulder injury. Further, we find no error in

the trial court’s instruction. There is, therefore, no manifest error in the jury’s finding

as to causation, and the judgment is affirmed in that respect.

Damages

Allstate argues that the jury’s award of damages is excessive. The parties

stipulated that Jordan’s medical expenses with respect to the treatment of the knee,

low back, and great toe totaled $589.06. Medical expenses with respect to treatment

of the shoulder injury totaled $22,555.75. General damages awarded by the jury

totaled $67, 500.00. If there is no causal connection between the accident and the

shoulder injury, Allstate argues that Jordan is not entitled to the $22,555.75 and that

$67,500.00 in general damages is excessive. We have already found that the jury’s

finding of a causal connection between the accident and Jordan’s shoulder injury is

supported by the record and not manifestly erroneous, therefore we find no merit in

this argument.

Allstate also argues that, even if the shoulder injury is related to the accident,

the evidence does not support a $67,500.00 general damage award. Allstate argues

that the highest possible award for Jordan’s back, knee, and toe injury is $8,500.00

and the highest possible award for Jordan’s shoulder injury is $40,000.00. We

disagree.

6

Our review of a jury’s general damage award is guided by Youn v. Maritime

Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct.

1059 (1994). In Andrus v. State Farm Mutual Automobile Insurance Company, 95-

0801, p. 8 (La. 3/22/96), 670 So.2d 1206, 1210, our supreme court stated:

In appellate review of general damage awards, the court must
accord much discretion to the trial court judge or jury. Reck v. Stevens,
373 So.2d 498 (La.1979). The role of an appellate court in reviewing
awards of general damages is not to decide what it considers to be an
appropriate award, but rather to review the exercise of discretion by the
trial court. Id. Only if the reviewing court determines that the trial court
has abused its “much discretion” may it refer to prior awards in similar
cases and then only to determine the highest or lowest point of an award
within that discretion. Coco v. Winston Indus., Inc., 341 So.2d 332
(La.1976).

Because discretion vested in the trial court is “great,” and even
vast, an appellate court should rarely disturb an award of general
damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261
(La.1993). Reasonable persons frequently disagree about the measure
of general damages in a particular case. It is only when the award is, in
either direction, beyond that which a reasonable trier of fact could
assess for the effects of the particular injury to the particular plaintiff
under the particular circumstances that the appellate court should
increase or reduce the award. Id.

Jordan testified that he injured his back, left knee, left big toe, and right

shoulder in the subject accident. His right shoulder required surgical repair which left

him with a scar. When he returned to Dr. Foster in September of 2003, some

seventeen months post-accident, Jordan was still having spasms in his back. At the

time of trial, he testified that he was having trouble sleeping because it was hard to

get comfortable and that his left big toe was still numb. It was up to the jury to weigh

the evidence as to the extent of Jordan’s injuries. The jury was in the best position

to judge Jordan’s credibility, demeanor, and mannerisms while he was testifying. We

find no abuse of the jury’s discretion in its award of general damages.

7

DECREE

For the foregoing reasons, the judgment appealed from is affirmed at

Defendant-Appellant’s cost.

AFFIRMED.

8