Derrick Barr v. State Farm Insurance Co.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-1066

DERRICK BARR, ET AL.

VERSUS

STATE FARM INSURANCE CO., ET AL.

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APPEAL FROM THE
PINEVILLE CITY COURT
PARISH OF RAPIDES, NO. 4-0496
HONORABLE JESSE PHILLIP TERRELL JR., CITY COURT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Elizabeth A. Pickett, Judges.

AFFIRMED AS AMENDED.

James Berry Reichman
Reichman Law Firm
P. O. Box 210
Alexandria, LA 71309-0210
(318) 442-3251
Counsel for Defendants-Appellants:
State Farm Insurance Co.
Amanda Austin
Gaynell Boyd

Byron O’Neal
O’Neal Law Firm
630 Lee Street
Alexandria, LA 71301
(318) 487-8787
Counsel for Plaintiffs-Appellees:
Derrick Barr
Ericka Barr

Pickett, Judge.

The defendant-appellant, State Farm Insurance Company (State Farm), appeals

a judgment of the trial court finding its insured, Amanda Austin, 100% at fault in an

automobile accident and awarding damages to the plaintiffs, Derrick and Ericka Barr.

STATEMENT OF THE CASE

On March 7, 2004, Derrick Barr was backing his vehicle out of a parking spot

at the Wal-Mart in Pineville, Louisiana, when a car driven by Amanda Austin backed

into the driver’s side door of his vehicle. Mr. Barr claims that as a result of the

accident he suffered an injury to his back which manifested itself when he returned

to his home that day. He did not seek medical attention for his back until May 10,

2004. On September 1, 2004, Mr. Barr and his wife filed suit against Ms. Austin,

Gaynell Boyd, the owner of the vehicle driven by Ms. Austin, and State Farm, who

issued an insurance policy on the vehicle, in Pineville City Court.

Trial in this matter was held on January 19, 2006. The trial court took evidence

and took the matter under advisement. On April 13, 2006, the trial court issued

Written Reasons. The trial court found Ms. Austin 100% liable for the accident and

awarded $20,000 for general damages to Mr. Barr. The trial court also awarded

$1,500.00 to Mrs. Barr for loss of consortium and cast the defendants with court

costs. The trial court amended its written reasons on April 28, 2006, to award special

medical damages to Mr. Barr of $2,687.96. A judgment in conformity with the trial

court’s reasons was signed on June 2, 2006. It is from this judgment that State Farm

now appeals.

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ASSIGNMENTS OF ERROR

The defendant-appellant State Farm asserts three assignments of error:

1. The court committed manifest error in its determination of causation of
plaintiff’s injuries based on plaintiff’s and his treating physician’s
testimony; documents and objective evidence so contradicted plaintiff’s
story which is, itself, so internally inconsistent and implausible on its
face, that a reasonable fact finder would not credit it.

2. The court committed manifest error in its apportionment of overcharged
medical expenses to defendant.

3. The court committed manifest error in its apportionment of comparative
fault.

DISCUSSION

The supreme court discussed the standard of review applicable in a case such

as this one in Touchard v. Slemco Elec. Foundation, 99-3577, p. 5 (La. 10/17/00),

769 So.2d 1200, 1204:

It is well settled that a court of appeal may not set aside a trial
court’s or a jury’s finding of fact in the absence of “manifest error” or
unless it is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330,
1333 (La.1978). When there is conflict in the testimony, reasonable
evaluations of credibility and reasonable inferences of fact should not
be disturbed upon review, even though the appellate court may feel that
its own evaluations and inferences are as reasonable. Lirette v. State
Farm Ins. Co., 563 So.2d 850, 852 (La.1990); Rosell v. ESCO, 549
So.2d 840, 844 (La.1989); Canter v. Koehring Co., 283 So.2d 716, 724
(La.1973). Therefore, the issue for the reviewing court is not whether
the trier of fact was wrong, but whether the fact-finder’s conclusions
were reasonable under the evidence presented. Rosell, 549 So.2d at
844-45. When a factfinder’s determination is based on its decision to
credit the testimony of one of two or more witnesses, that finding can
virtually never be manifestly erroneous or clearly wrong. Id.

In its first assignment of error, State Farm argues that the injuries to Mr. Barr’s

back were not caused by the collision between him and Ms. Austin. To support this

argument, they point out that (1) he did not seek medical attention for more than two

months after the accident, (2) he failed to mention the accident or the back pain

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caused by the accident to hospital personnel at any of four visits to the hospital

between the date of the accident and the date that he first saw Dr. Stella Gwandiku,

and (3) he was allegedly able to perform back flips at some point after the accident

and before he saw Dr. Gwandiku.

Both Mr. and Mrs. Barr testified that the pain was so severe on the day of the

accident that Mr. Barr laid on the floor of his home crying when he returned from

Wal-Mart. Mr. Barr claimed that he failed to seek immediate medical attention for

his back injury because he had pain medication for a preexisting condition that he

took to relieve his pain. Also, Mr. Barr and his wife stated that they could not afford

to get medical attention. State Farm points out that Mr. Barr had sought medical

attention at the hospital several times since 2001, including four times between the

March 7, 2004 accident and his visit to Dr. Gwandiku on May 10, 2004.

Mr. Barr explained that he failed to mention the back pain at the hospital visits

because he was there because of knee pain. In fact, he tore the anterior cruciate

ligament (ACL) of his left knee at some point doing back flips. State Farm alleges

that he tore his ACL on March 18, 2004, the day he first went to Rapides Regional

Medical Center complaining of acute knee pain. Mr. Barr admits that he hurt his knee

doing back flips, but claims he did so before the March 7, 2004 accident, and that he

went to the hospital for this injury for the first time on March 18, 2004. State Farm

alleges that the medical records of Rapides Regional Medical Center show that he

injured the knee on March 18. The records of the March 18, 2004 visit state, “Did a

back flip. Felt sharp pain on both sides of knee.” They also state that the pain started

“30-40 minutes ago.” The records of the April 27, 2004 visit state, “over one month

ago after reinjuring his knee was seen here March 18th and MRI 3/26/04 shows ACL

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tear and medial meniscus tear.” They also state that the onset of the present illness

is March 18th. State Farm argues that these inconsistencies show that Mr. Barr is not

a credible witness.

Further, Mr. Barr was involved in a second accident on March 30, 2004, in

which he claims to have injured his knee and neck. The trial court chose to believe

the testimony of Mr. Barr about the timing of the back flip. The trial court’s

conclusion is supported by evidence in the record and required a credibility

determination by the trial court. This part of the judgment is affirmed.

Likewise, the third assignment of error lacks merit. Mr. Barr was backing his

vehicle up and testified that he was about to begin pulling forward when the rear

bumper of Ms. Austin’s vehicle hit the driver’s side door of his vehicle. Mr. Barr

stated that he saw Ms. Austin’s vehicle moving toward him before it hit his vehicle,

but he did not have time to move out of the way. Ms. Austin admitted in her

testimony that she looked in her rearview mirror and did not see Mr. Barr’s vehicle

because he was in her blind spot. The evidence supports the trial court’s finding.

The second assignment of error is more complicated, and the second accident

in which Mr. Barr was involved plays prominently. When Mr. Barr was referred to

Dr. Gwandiku by his attorney, Dr. Gwandiku began keeping two separate charts for

Mr. Barr. In one chart she recorded information about the back pain related to the

March 7, 2004 accident, and in the second chart she recorded information about the

neck and knee pain related to the March 30, 2004 accident. Two separate invoices

from Rapha Physical Medicine Clinic were introduced. The first, for chart number

BARDE00, which includes a case description notation of “Mva 3/7/2004,” lists

treatments from May 10, 2004 through August 9, 2004, with a total balance of

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$2,370.00. The second, for chart number BARDE001, lists many of the same

treatments for the same dates, but the total amount is $2,450.00. Dr. Gwandkiu

explained that the clinic bills by the procedure in seven minute increments. She

stated that Mr. Barr’s appointments were usually scheduled on the same day for his

convenience, but each injury, i.e., the back pain or the knee and neck pain, was

treated as a separate treatment. Thus, while the bills may be duplicative, they are for

different treatments. The trial court found that even if the bills are for the same

treatments, Mr. Barr was not in bad faith and is entitled to recover the full amount.

As for the pharmacy bills, State Farm claims the same bill was introduced in both

proceedings, and the trial court erred in allowing full recovery of $317.96.

State Farm argues that this claim should be evaluated by applying comparative

fault to Dr. Gwandiku for overcharging Mr. Barr or requiring unnecessary treatments.

This is incorrect. If State Farm believed the medical payments were excessive, it was

their burden to introduce evidence to that effect. Dr. Gwandiku’s explanation of her

clinic’s billing practices would support the charges included on the two statements.

Essentially, Dr. Gwandiku’s explanation would lead to the conclusion that Mr. Barr

received services from Rapha Physical Medicine Clinic in the amount of $4,820.00,

of which $2,370.00 is attributable to the treatments for back pain suffered as a result

of the accident with Ms. Austin. If State Farm believed that amount to be excessive,

it should have introduced evidence which explained which charges were excessive.

As for the pharmacy bill, it was manifest error to award the entire amount, since

clearly some of the medication was attributable to the second accident. We, therefore,

reduce the award by one-half, or $158.98.

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CONCLUSION

The judgment of the trial court is amended to lower the award for the pharmacy

bill from $317.96 to $158.98. In all other respects, the judgment of the trial court is

affirmed. Costs of this appeal are taxed evenly to both parties.

AFFIRMED AS AMENDED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Rule 2-16.3, Uniform Rules, Courts of Appeal.

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