Miriam H. Dyess v. State Farm Mutual Automobile Ins. Co.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-598

MIRIAM H. DYESS

VERSUS

STATE FARM MUTUAL AUTO
INSURANCE COMPANY, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT,
PARISH OF RAPIDES, NO. 219,377
HONORABLE GEORGE C. METOYER, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of John D. Saunders, J. David Painter, and Shannon J. Gremillion,
Judges.

AFFIRMED.

Sam C. Giordano, Attorney at Law
P.O. Box 991
Alexandria, LA 71309
Counsel for Plaintiff/Appellee:
Miriam Dyess

Michael L. Glass, Attorney at Law
1733 White Street
Alexandria, LA 71301
Counsel for Plaintiff/Appellee:
Miriam Dyess

Ian A. MacDonald, Attorney at Law
P.O. Drawer 3408
Lafayette, LA 70502-3408
Counsel for Defendant/Appellant:
Farmers Insurance Exchange

PAINTER, Judge.

In this personal injury case, Defendant, Farmers Insurance Exchange, appeals

the trial court’s award of $103,000.00 for what Defendant characterizes as a twelve-

month cervical strain. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This case arises out of an automobile accident that occurred on December 22,

2003, in Alexandria, Louisiana. Plaintiff, Miriam H. Dyess, was traveling on Elliott

Street, and, as she pulled into its intersection with MacArthur Drive, Charles Thomas

pulled out in front of her. Dyess’ vehicle, which was traveling about ten miles per

hour, hit the rear of Thomas’ truck. Thomas was insured by State Farm. Dyess had

uninsured/underinsured motorist coverage with Farmers Insurance Exchange. Dyess

contends that she sustained injuries to her neck, shoulder, hand, back, right leg, and

that she suffered headaches, foot pain, and numbness. Farmers Insurance Exchange

contends that this was a minor accident, causing only $1,500.00 in damage to Dyess’

vehicle, that Dyess denied any injury at the scene, and that her injuries were caused

by pre-existing carpal tunnel syndrome and fibromyalgia and from a subsequent on-

the-job injury.

Following a bench trial, the trial court awarded $25,000.00 in special damages

and $78,000.00 in general damages, including loss of enjoyment of life. Farmers

Insurance Exchange was given a credit/offset for $27,000.00 previously paid by State

Farm Mutual Automobile Insurance Company, representing the underlying limits of

liability and a credit for $2,000.00 previously tendered by Farmers Insurance

Exchange. Dyess filed a motion for partial new trial, alleging that she should have

been awarded a separate and additional sum for loss of enjoyment of life. This

motion was denied.

Farmers Insurance Exchange now appeals the judgment, asserting that the

damage award should be set aside or reduced because it is manifestly erroneous, that

the trial court erred in awarding damages and medical expenses for injuries other than

those to Dyess’ neck, and that the award of $103,000.00 should be reduced because

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it is an abuse of discretion. Dyess did not answer the appeal or assert any error with

respect to the denial of her motion for partial new trial. We affirm the trial court’s

judgment.

DISCUSSION

In its oral reasons for judgment, the trial court found as follows:

There is no dispute as to how the accident happened, so we turn
our attention to damages. The plaintiff was credible and truthful in her
answering. And as such, this court will not penalize her for any minor
discrepancies.

What we have here is an eggshell victim who already had some
medical problems. But as such, you must take the victim as you find
them. The testimony reveals that she suffered pain in her neck, back,
arms, wrists, and hands. This court can come to no correlation between
the amount of property damage and the amount of bodily harm suffered
by the plaintiff. It is unfortunate that the plaintiff is still suffering from
the effects of this accident[,] and the court recognizes this. The medical
testimony is clear that plaintiff still suffers from the accident[,] and this
court notes that.

In Bienemann v. State Farm Mut. Auto. Ins. Co., 08-1045, pp. 3-4 (La.App. 3

Cir. 2/4/09), 3 So.3d 621, 623-24, this court has recently noted:

In Rabalais v. Nash, 06-0999, p. 4 (La.3/9/07), 952 So.2d 653, 657, the
Louisiana Supreme Court has recently reiterated the applicable standard
of review as follows:

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. Blair v.
Tynes, 621 So.2d 591, 601 (La.1993); Rosell v. ESCO, 549
So.2d 840, 844 (La.1989). To reverse a fact-finder’s
determination, the appellate court must find from the
record that a reasonable factual basis does not exist for the
finding of the trial court, and that the record establishes
that the finding is clearly wrong. Mart v. Hill, 505 So.2d
1120 (La.1987). Where the jury’s findings are reasonable,
in light of the record viewed in its entirety, the court of
appeal may not reverse. Even where the court of appeal is
convinced that it would have weighed the evidence
differently to reach a different result, reversal of the trial
court is improper unless the trial court’s ruling is
manifestly erroneous, or clearly wrong. Blair, supra.

With respect to Bienemann, who was clearly an eggshell plaintiff,
we are mindful that:

[t]he defendant’s liability for damages is not mitigated by
the fact that the plaintiff’s pre-existing physical infirmity
was responsible in part for the consequences of the
plaintiff's injury by the defendant. It is clear that a

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defendant takes his victim as he finds him and is
responsible for all natural and probable consequences of
his tortious conduct.

Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La.1993), citing
Perniciaro v. Brinch, 384 So.2d 392, 395 (La.1980), Sansonni v.
Jefferson Parish School Board, 344 So.2d 42 (La.App. 4th Cir.1977),
Deville v. United States Fidelity & Guaranty Company, 258 So.2d 694
(La.App. 3d Cir.1972), Dufrene v. Miller, 266 So.2d 462 (La.App. 4th
Cir.1972), Rachal v. Bankers and Shippers Insurance Company, 146
So.2d 426 (La.App. 3d Cir.1962), and Johnston v. Ford Motor Co., 443
F.Supp. 870 (E.D.La.1978). The “eggshell plaintiff” is required to
establish a causal link between the tortious conduct and the aggravation
of his pre-existing condition. Chavers v. Travis, 04-0992 (La.App. 4
Cir. 4/20/05), 902 So.2d 389.

“An injured person is entitled to recover full compensation for all damages that

proximately result from a defendant’s tortious act, even if some or all of the injuries

might not have occurred but for the plaintiff's preexisting physical condition, disease,

or susceptibility to injury.” 2 Stein on Personal Injury Damages 3d § 11.1 (“Stein”).

The plaintiff fails to carry the requisite burden of proving causation if the

pre-accident and post-accident conditions are identical in all meaningful respects.

Juneau v. Strawmyer, 94-0903 (La.App. 4 Cir. 12/15/94), 647 So.2d 1294.

Dr. Robert Rush, an expert in the fields of family and occupational medicine,

testified at trial. Dr. Rush first saw Dyess on January 20, 2004, after the subject

accident. She related the history of the accident to him and complained of neck pain.

Dr. Rush was aware of her history of hypertension, fibromyalgia, and depression. He

testified that he was initially treating her for an acute strain of the cervical spine and

noted that he could not rule out an exacerbation of the fibromyalgia. Dr. Rush further

testified that her cervical strain became chronic and that he treated her conservatively

with medication and therapy until January 11, 2005. Dr. Rush related her cervical

strain to the subject accident. He also opined that her pre-existing carpal tunnel

syndrome was exacerbated by the subject accident. He also testified that fibromyalgia

patients were more likely to develop chronic cervical syndrome than other patients.

Finally, Dr. Rush testified that it would not be inconsistent for Dyess to continue to

suffer the same complaints some five years after the accident. Farmers Insurance

Exchange did not present any evidence to contradict Dr. Rush’s testimony. D r .

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Lenin Pinnamaneni’s video deposition was introduced at trial. Dr. Pinnamaneni is

an expert in the field of internal medicine. He began treating Dyess in November

2005 for low back pain. He was unaware of the subject accident.

Dr. Stig Pettersen, a neurologist, treated Dyess in 2006. At that time, Dyess

indicated that she “aggravated her back” by moving some boxes. Dr. Pettersen’s

deposition was introduced at trial. Dyess did not indicate to Dr. Pettersen that she

had any prior back or neck pain. However, Dr. Pettersen testified that he was unsure

as to whether or not Dyess actually completed the questionnaire. Dr. Pettersen

performed a laminectomy and dissection of the synovial cyst at L4-5.

Defendants contend that most, if not all, of Dyess’ problems stem from her pre-

existing conditions and subsequent injury in 2005. We agree with the trial court’s

finding that Dyess suffered an aggravation of her pre-existing conditions. Dr. Rush’s

uncontradicted testimony relates Dyess’ complaints to the subject accident and was

sufficient to establish an aggravation of Dyess’ pre-existing conditions.

As to the awards of general damages, the standard of review is
whether the trial judge abused his much discretion in fixing the award,
Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993). In Youn
the court reiterated the longstanding rule of Reck v. Stevens, 373 So.2d
498 (La.1979) that the role of the appellate court is not to fix an award
that it deems appropriate to the case, but rather to determine whether,
based on the effect of the particular injuries on the particular plaintiff in
the particular circumstances in which plaintiff finds himself, the award
is an abuse of discretion of the trier of fact. It is only when the appellate
court finds, for articulable [sic] reasons, that such an abuse has occurred
that it may then look to other cases involving similar injuries to similarly
situated plaintiffs for guidance.

Lewis v. Ingles, 02-121, p. 10 (La.App. 5 Cir. 7/30/02), 823 So.2d 1033, 1038-39,

writ denied, 02-2463 (La. 11/22/02), 829 So.2d 1052.

While we might feel that the damage award in this case may be high, we cannot

say that it is so high as to constitute an abuse of the trial court’s vast discretion.

Based on the testimony of Dyess and her daughter, Katherine Elizabeth Dyess, as to

the impact of the injuries sustained in this accident by Dyess and given the “particular

injuries and their effects under the particular circumstances,” the trial court’s damage

award is not beyond that which a reasonable trier of fact could assess. See Youn, 623

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So.2d at 1260. Thus, we find no abuse of discretion in the trial court’s award of

damages.

DECREE

For all of the foregoing reasons, the trial court’s judgment is affirmed. Costs

of this appeal are assessed to Defendant/Appellant, Farmers Insurance Exchange.

AFFIRMED.

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

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