Raymond Cole v. Allstate Insurance Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-1046

RAYMOND COLE, ET AL.

VERSUS

ALLSTATE INSURANCE COMPANY, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2005-1387
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Oswald A. Decuir, Michael G. Sullivan, Glenn B. Gremillion, J.
David Painter, and James T. Genovese, Judges.

Sullivan, J., dissents and assigns written reasons.

AFFIRMED AS AMENDED.

J. Craig Jones
Jones & Hill, LLC
131 Highway 165 South
Oakdale, Louisiana 71463
(318) 335-1333
Counsel for Plaintiffs/Appellants:
Raymond Cole, Lisa Cole, and Jerry Cole

Craig R. Hill
Jones & Hill, LLC
Post Office Box 1260
Oberlin, Louisiana 70655
(337) 639-2127
Counsel for Plaintiffs/Appellants:
Raymond Cole, Lisa Cole, and Jerry Cole

Sean P. Rabalais
Joseph H. Garbarino
Royale L. Colbert, Jr.
Attorneys at Law
400 East Kaliste Saloom Road, Suite 8300
Lafayette, Louisiana 70508
(337) 291-1743
Counsel for Defendants/Appellees:
Allstate Insurance Company, Ronald K. Floyd, and
Acadiana Builders, Inc.

GENOVESE, Judge.

Plaintiffs, Lisa Cole, Raymond Cole, and Jerry Cole, appeal the damage and

expert witness fee awards in a judgment rendered in their favor pursuant to a bench

trial. For the following reasons, we find the trial court’s awards for special damages

to be manifestly erroneous and that the trial court clearly abused its discretion in its

award of general damages and the setting of the expert witness fee in this matter.

Therefore, we increase the amounts of said awards and affirm the judgment, as

amended.

FACTS AND PROCEDURAL HISTORY

This lawsuit arises out of an automobile accident that occurred on October 1,

2004, on East Kaliste Saloom Road in Lafayette, Louisiana. Plaintiffs were riding in

a Honda Civic that was broadsided by a Ford F-150 pickup truck driven by the

Defendant, Ronald Floyd.

Plaintiffs filed suit against Mr. Floyd, his employer, Acadiana Builders, Inc.,

and Allstate Insurance Company, the automobile liability insurer of the company

truck that Mr. Floyd was driving at the time of the accident. A bench trial took place

on December 4 and 5, 2006. Written Reasons For Ruling were issued on January 8,

2007. The trial court found that Plaintiffs had proven by a preponderance of the

evidence that Mr. Floyd’s negligence was the sole cause of the accident and made the

following awards:

Special Damages General Damages

Raymond Cole $ 2,000.00 $ 3,500.00

Lisa Cole $ 3,500.00 $ 10,000.00

Jerry Cole $ 2,000.00 $ 3,500.00

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Plaintiffs’ treating physician and the only expert witness at trial, Dr. Elemer Raffai,

was awarded an expert witness fee of $500.00, and Mr. Floyd and Allstate were cast

with all costs of court. Judgment was signed on March 1, 2007, in accordance with

the reasons rendered, in favor of each individual Plaintiff and against Mr. Floyd and

Allstate, in solido, in the amounts listed above.

Plaintiffs appeal.

ASSIGNMENTS OF ERROR

The errors assigned by Plaintiffs in this appeal are (1) inadequacy of the special

damage awards; (2) failure to find causation and award damages for Jerry Cole’s

alleged knee injury; (3) inadequacy of the general damage awards; and (4) inadequacy

of the expert’s witness fee.

LAW AND DISCUSSION

The standard of appellate review of a trial court’s factual findings
is well settled and has long been established in this state. 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.” Our supreme
court set forth a two-part test for the reversal of a factfinder’s
determinations: (1) The appellate court must find from the record that a
reasonable factual basis does not exist for the finding of the trial court,
and (2) the appellate court must further determine that the record
establishes that the finding is clearly wrong (manifestly erroneous).
Earls v. McDowell, 07-17 (La.App. 5 Cir. 5/15/07), 960 So.2d 242,
citing Stobart v. State through Dep’t of Transp. and Dev., 617 So.2d
880, 882 (La.1993). On appeal, the issue to be resolved is not whether
the trier of fact was right or wrong, but whether the factfinder’s
conclusion was a reasonable one. Id. Reasonable evaluations of
credibility and reasonable inferences of fact should not be disturbed
upon review where conflict exists in the testimony. Earls, supra, citing,
Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

An appellate court cannot shirk its duty of appellate review of fact
by simply deferring to a trial court’s factual determinations because its
reasons for judgment are couched in terms of a credibility call. Earls,
supra, citing, Rogers v. City of Baton Rouge, 04-1001 (La.App. 1st
Cir.6/29/05), 916 So.2d 1099, 1104, writ denied, 05-2022 (La.2/3/06),
922 So.2d 1187. This Court has a constitutional responsibility to review

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the entire record and to determine whether, as a whole, it supports the
judgment rendered by the trial court. Earls, supra, citing, LSA-Const.
Art. 5, section 10(B); Ferrell v. Fireman’s Fund Ins. Co., 94-1252
(La.2/20/95), 650 So.2d 742.

Proof by a preponderance of the evidence is defined as taking the
evidence as a whole, the fact to be proved is more probably than not.
Earls, supra, citing, Fuller v. Wal-Mart Stores, Inc., 519 So.2d 366,
(La.App. 2nd Cir.1988). Uncontroverted evidence should be taken as
true to establish a fact for which it is offered absent any circumstances
in the record casting suspicion as to the reliability of this evidence and
sound reasons for its rejection. Id.

Boxie v. Smith-Ruffin, 07-264, pp. 3-4 (La.App. 5 Cir. 2/6/08), 979 So.2d 539, 545.

Plaintiffs contend that the trial court ignored Plaintiffs’ uncontroverted

testimony which was corroborated by the testimony of their expert witness and

treating physician, Dr. Elemer Raffai, an orthopedic surgeon. The only witness called

to testify on behalf of the defense was the Defendant, Ronald Floyd, whose testimony

pertained only to causation. Defendants presented no contradictory medical

testimony or evidence; there was no independent medical examination; and, Dr.

Raffai was accepted by the Defendants as an expert in the field of orthopedic surgery.

Special Damage Awards

At trial, Raymond Cole sought $16,778.27 in medical expenses, Lisa Cole

sought $13,065.86 in medical expenses, and Jerry Cole sought $17,042.48 in medical

expenses. However, the trial court awarded only $2,000.00 to Raymond Cole,

$3,500.00 to Lisa Cole, and $2,000.00 to Jerry Cole in medical expenses. Plaintiffs

contend that these special damage awards are abusively low and seek the full amount

of their past medical expenses.

[W]hen a plaintiff alleges that medical expenses were incurred “and that
allegation is supported by a bill, unless there is sufficient contradictory
evidence or reasonable suspicion that the bill is unrelated to the
accident, it is sufficient to support the inclusion of that item in the
judgment.” [Esté v. State Farm Ins. Co., 96-99, p. 10 (La.App. 3 Cir.

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7/10/96), 676 So.2d 850, 857.] A factfinder errs if it fails to award the
full amount of medical expenses incurred as a result of the accident and
proven by a preponderance of the evidence. Revel v. Snow, 95-462
(La.App. 3 Cir. 11/2/95), 664 So.2d 655, writ denied, 95-2820
(La.2/2/96), 666 So.2d 1084.

Simon v. Lacoste, 05-550, p. 3 (La.App. 3 Cir. 12/30/05), 918 So.2d 1102, 1104-05.

We find that the evidence in the record establishes and demonstrates that Lisa

Cole, Raymond Cole, and Jerry Cole did, in fact, receive injuries and that each had

valid complaints referable to injuries received in the accident made the subject of this

lawsuit.1 This evidence is supported by the testimony of Plaintiffs’ treating physician,

Dr. Elemer Raffai, and uncontroverted by Defendants. Our examination of the facts

and medical testimony in the record clearly and unequivocally indicates that the trial

court’s special damage awards were manifestly erroneous and did not adequately and

properly compensate Plaintiffs for their medical expenses in accordance with law.

Based upon the uncontroverted medical evidence in the record, we award Raymond

Cole his duly incurred medical expenses of $16,778.27, Lisa Cole her duly incurred

medical expenses of $13,065.86, and Jerry Cole his duly incurred medical expenses

of $17,042.48.

General Damage Awards

In Andrus v. State Farm Mutual Automobile Insurance Co., 95-0801, p. 8 (La.

3/22/96), 670 So.2d 1206, 1210 (citations omitted), the supreme court stated:

In appellate review of general damage awards, the court must
accord much discretion to the trial court judge or jury. 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. 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.

1
The issues of causation and connectivity are not before this court on appeal.

4

Because discretion vested in the trial court is “great,” and even
vast, an appellate court should rarely disturb an award of general
damages. 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.

The evidence shows that both Raymond and Lisa Cole2 sought treatment on

October 2, 2004, the day after the accident, at the Oakdale Community Hospital

emergency department. Lisa Cole (Lisa) presented with complaints of pain in her

right shoulder and lower back. X-rays of Lisa’s right shoulder were taken and found

to be normal. She was diagnosed with a contusion of the right shoulder and lumbar

sprain. Raymond Cole (Raymond) presented with complaints of pain in his neck and

left knee. X-rays of Raymond’s cervical spine and left knee were taken and found to

be normal. Both Lisa and Raymond were released with prescriptions for pain

medication and with instructions to follow up with their family doctor.

Raymond began treatment with Dr. Elemer Raffai, an orthopedist, on October

8, 2004. Dr. Raffai testified that his initial examination revealed muscle spasms in

Raymond’s cervical and lumbar regions. Dr. Raffai diagnosed Raymond with

“[w]hiplash injury, sprain of the neck, sprain of the lower back, sprain of the left

knee, post motor vehicle accident.” According to Dr. Raffai, Raymond continually

presented with muscle spasms in the cervical and lumbar areas, as well as with knee

pain and radiculopathy.3 Dr. Raffai testified that he considered Raymond’s injuries

to be chronic and that, in his opinion, Raymond would continue to have these

symptoms into the future.

2
Raymond and Lisa Cole are husband and wife.
3
Radiculopathy, as defined by Dr. Raffai, is “an irritation or pinching of the nerve roots in
the lower lumbar spine that causes shocking sensations down one or both extremities.”

5

The record establishes that Raymond was treated by Dr. Raffai from October

8, 2004 through November 3, 2006. As of the date of trial in December of 2006, Dr.

Raffai had treated Raymond with a regimen of cortisone injections, anti-inflammatory

medications, and pain medications through the course of twenty-three visits.

Raymond testified that he was unable to accept the offshore job for which he

was in Lafayette to attend a pre-employment physical on the day of the accident made

the subject of this lawsuit. According to Raymond, he could not find work for

approximately three months after the accident; however, he did eventually find work

with a construction company where he performed light duty work for almost one year.

Lisa began treatment with Dr. Raffai on October 12, 2004 for pain in her right

shoulder, lower back, and neck. In his initial examination of Lisa, Dr. Raffai noted

muscle spasms in Lisa’s neck at the C5-6 level, muscle spasms in Lisa’s back at the

L5-S1 and L4-5 levels, positive straight leg raise tests, and radiculopathy into both

legs. Dr. Raffai diagnosed Lisa with “[w]hiplash injury, sprain of the neck, lower

back, bursitis, [and] rotator cuff tendinitis of the right shoulder.” Two weeks after her

initial visit, Lisa returned to Dr. Raffai complaining of headaches. Dr. Raffai testified

that Lisa’s shoulder injury had healed by January of 2006, and her neck injury had

healed by November of 2006. However, Dr. Raffai opined that Lisa’s lower back

injury, though somewhat improved, was chronic and that she would continue to have

these symptoms into the future.

The record establishes that Lisa was treated by Dr. Raffai from October 12,

2004 through November 10, 2006. As of the date of trial, Dr. Raffai had treated Lisa

with a regimen of cortisone injections, anti-inflammatory medications, and pain

medications through the course of twenty-two visits.

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Lisa testified that at the time of the accident, she was employed at the St.

Francis Nursing Home in Kinder, Louisiana. According to Lisa, she missed work the

day following the accident due to her injuries; however, she was allowed to perform

only light duty work upon her return.

Jerry Cole4 (Jerry) began treatment with Dr. Raffai on October 8, 2004.

According to Dr. Raffai’s medical records, Jerry presented with complaints of “severe

pain on and off ever since the accident in his neck, low[er] back and right knee.” Dr.

Raffai diagnosed Jerry with “[w]hiplash injury, sprain of the neck, sprain of the lower

back, post-MVA, severe, with radiculopathy in the arms and legs.” In February of

2006, Dr. Raffai ordered MRIs of Jerry’s right knee, cervical spine, and lumbar spine.

According to Dr. Raffai, the MRI of Jerry’s cervical spine showed an indentation of

the dura sac surrounding the nerve root as it exits Jerry’s spine. Further, Dr. Raffai

observed on the MRI of Jerry’s neck and back that there was a flattening of the dura

sac, indicating a mechanical impingement. Dr. Raffai opined that the automobile

accident of October 1, 2004 caused the impingement upon Jerry’s nerves in his neck;

however, he opined that the impingement in Jerry’s lower back pre-existed the

accident at issue herein.

The MRI of Jerry’s right knee also revealed a tear of the posterior horn of the

medial meniscus. Dr. Raffai opined that the torn meniscus in Jerry’s right knee

resulted from the October 1, 2004 accident; however, upon cross-examination, Dr.

Raffai conceded that the abnormality of Jerry’s gait due to his prosthetic leg “may”

have contributed to the tear of the meniscal cartilage in Jerry’s right knee.

Based upon our review of the uncontroverted facts and medical evidence in the

4
Jerry Cole’s left leg had been amputated below the knee approximately fourteen years before
the subject accident.

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record, we find that the trial court abused its discretion by awarding inadequate

general damages to each of the Plaintiffs. Therefore, we refer to similar cases to

determine reasonable awards for the injuries suffered by each Raymond Cole, Lisa

Cole, and Jerry Cole.

In Jacobs v. City of Marksville, 06-1386 (La.App. 3 Cir. 3/7/07), 953 So.2d

139, writ denied, 07-1093 (La. 9/14/07), 963 So.2d 999, the plaintiffs sustained

injuries in an automobile accident. The trial court awarded one plaintiff $45,000.00

in general damages and $5,583.00 in special damages for chronic neck and back

strain, shoulder strain, and post-traumatic headaches. The trial court awarded another

plaintiff $35,000.00 in general damages and $5,238.00 in special damages for injuries

including a concussion, abrasions, headaches, and low back and neck pain for which

he received a cortisone injection. These damage awards were affirmed by this court.

In Henry v. Wal-Mart Stores, Inc., 99-1630 (La.App. 3 Cir. 3/1/00), 758 So.2d

327, writ denied, 00-929 (La.App. 3 Cir. 5/26/00), 762 So.2d 1107, the plaintiff

suffered from shoulder, lower back, and leg pain as a result of a slip and fall accident.

The plaintiff saw an orthopedic surgeon approximately five times over a course of ten

months for these complaints, and took various medications for nerve irritation and

underlying arthritis. The trial court awarded the plaintiff $22,000.00 in general

damages and $721.00 in past medicals, which was affirmed by the court of appeal.

We find the injuries suffered in Jacobs and Henry are similar and comparable

to those suffered by each of the Plaintiffs in the case at bar. After reviewing prior

awards in these similar cases, we find that the general damage awards of $3,500.00

to Raymond Cole, $10,000.00 to Lisa Cole, and $3,500.00 to Jerry Cole are below

that which a reasonable trier of fact could assess in such a case. The trial court’s

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judgment reflected an affirmative finding that Raymond, Lisa, and Jerry were injured

as a result of the side-impact collision. However, it appears that the trial court

concluded that though each of the Plaintiffs did, in fact, suffer soft-tissue injuries, the

trial court also felt that the Plaintiffs exaggerated their symptoms. The

uncontroverted medical evidence does not reasonably support such a conclusion.

Rather, the evidence indicates that each of the Plaintiffs suffered cervical injuries,

neck pain, lower back pain, and chronic pain with residual complaints through the

date of trial. Considering our review of prior awards for similar injuries and noting

the aforementioned medical assessments that are in evidence, we amend the trial

court’s general damage awards of $3,500.00 to Raymond Cole, $10,000.00 to Lisa

Cole, and $3,500.00 to Jerry Cole and raise these amounts to the lowest reasonable

amounts of $25,000.00 to Raymond Cole, $30,000.00 to Lisa Cole, and $25,000.00

to Jerry Cole.

Jerry Cole’s Knee Injury

When Jerry Cole initially presented to Dr. Raffai on October 8, 2004, he did

not complain of any knee pain. Due to his complaints of pain in both knees at his

October 22, 2004 visit, X-rays were taken of both knees, the results of which showed

good alignment, slight arthritis, and no fractures. Dr. Raffai testified that Jerry’s

prosthetic leg was outdated, worn, and too short, causing him to limp. As a result

thereby, Dr. Raffai wrote Jerry a prescription for a new prosthetic leg. An MRI in

February of 2006 revealed torn cartilage in Jerry’s right knee, which Dr. Raffai

attributed to the subject accident, and which he opined made Jerry a candidate for

arthroscopic knee surgery. Upon questioning by Defendants, however, Dr. Raffai

could not rule out the potentiality that Jerry’s short prosthetic leg could have

9

contributed to the torn cartilage in his right knee.

Jerry testified that he suffered from arthritis and that he walked with a limp

before the subject accident. The trial court was of the opinion that the results of the

MRI of his right knee were unremarkable. Given the fact that Jerry did not get an

MRI of his right knee until a year and a half after the accident, the potentiality that

the condition of Jerry’s right knee could have been exacerbated by the fact that he had

an amputation from the knee down on the opposite leg, and an ill-fitting prosthetic

leg, we find no abuse of discretion in the trial court’s conclusion that Jerry failed to

prove that his right knee injury was caused by the subject accident.

Expert’s Witness Fee

At the insistence of the trial court, Dr. Raffai had to appear for both of the two

days of trial. He testified that his charge for appearing at trial was $2,400.00.

Because Dr. Raffai was not board certified in the United States, the trial court, not

counsel, questioned him at length regarding his qualifications. Ultimately, the trial

court did accept Dr. Raffai as an expert in orthopedic surgery after being offered

proof that he was board certified by the Royal College of Surgeons of Canada and

that his certification was accepted by the Medical Board of Louisiana. It is

noteworthy that the record indicates that it was the trial court, not the Defendants,

who challenged Dr. Raffai’s qualifications as an expert in the field of orthopedic

surgery. It was the trial court’s own error and its own order that required Dr. Raffai

to have to “hang around” until the end of the trial.

Given the length of time that Dr. Raffai was required to be in court, we

conclude that the trial court abused its discretion in awarding him an expert witness

fee of only $500.00. We increase Dr. Raffai’s expert witness fee to $1,500.00.

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CONCLUSION

For the foregoing reasons, we amend the judgment of the trial court to reflect

the following awards of damages: $16,778.27 in special damages and $25,000.00 in

general damages for Raymond Cole; $13,065.86 in special damages and $30,000.00

in general damages for Lisa Cole; and $17,042.48 in special damages and $25,000.00

in general damages for Jerry Cole. We also amend the trial court’s judgment to award

to Dr. Elemer Raffai an expert witness fee of $1,500.00. Costs of this appeal are

assessed against Defendants/Appellees, Ronald Floyd and Allstate Insurance

Company.

AFFIRMED AS AMENDED.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-1046

RAYMOND COLE, ET AL.

VERSUS

ALLSTATE INSURANCE COMPANY, ET AL.

SULLIVAN, J., dissenting.

I respectfully disagree with the majority in this case. I would affirm the trial

court’s judgment regarding the amount of general and special damages awarded to

each of the three plaintiffs, having found no manifest error in those awards. I would,

however, amend the judgment to increase the expert fee awarded to Dr. Elemer Raffai

to $1,000.00, having concluded that the trial court abused its discretion in awarding

a lesser amount for his two-day trial appearance.