Benny Augustine v. State Farm Mutual Automobile ins.co.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-37

BENNIE AUGUSTINE

VERSUS

STATE FARM MUTUAL
AUTOMOBILE INSURANCE
COMPANY, ET AL.

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2010-4603-B
HONORABLE WILLIAM J. BENNETT, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Oswald A. Decuir, Jimmie C. Peters, and J. David Painter,
Judges.

AFFIRMED.

Wesley K. Elmer
Law Office of Darrel D. Ryland, APLC
P.O. Drawer 1469
Marksville, LA 71351
(318)253-5961
COUNSEL FOR PLAINTIFF/APPELLANT:
Bennie Augustine

Brandon A. Sues
Gold, Weems, Bruser, Sues & Rundell
P.O. Box 6118
Alexandria, LA 71307-6118
(318)445-6471
COUNSEL FOR DEFENDANTS/APPELLANTS:
Christus Continuing Care and Shirley Coston

PAINTER, Judge.

Defendants, Christus Continuing Care and Shirley Coston, appeal the judgment

in favor of Plaintiff, Bennie Augustine, in this automobile accident case. Defendants

allege that Plaintiff sustained no injury in this minor accident. We affirm the trial

court’s judgment.

FACTS AND PROCEDURAL HISTORY

On August 6, 2009, Plaintiff, who was seventy-four (74) years old, was

travelling on Washington Street in Marksville, Louisiana. She testified that she was

driving about ten (10) miles per hour in her 1995 Mercury Grand Marquis. Plaintiff’s

vehicle was struck from the rear by a Mini Cooper driven by Shirley Coston. There is

some discrepancy as to whether Plaintiff’s vehicle was stopped due to some problem

with the vehicle, stopped in preparation to make a right turn onto Blanchard Street, or

still moving. Ms. Coston’s attention may have been diverted by a bicycle rider who

was having some sort of trouble in the heavy traffic. Plaintiff characterized the

impact as a ―big hit.‖ Ms. Coston characterized the accident as a ―jolt.‖

Ms. Coston was employed by Christus Continuing Care as a hospice nurse and

was travelling to Valley View Nursing Home. Ms. Coston was insured by State Farm

Mutual Automobile Insurance Company. The State Farm policy provided that both

Ms. Coston and her employer were named insureds. The policy limits were

$25,000.00 for bodily injury. Ms. Coston was in the course and scope of her

employment at the time of the accident.

The accident was investigated by Lt. Michael Bell of the Marksville Police

Department. Both Plaintiff and Ms. Coston refused medical treatment at the scene.

Lt. Bell noted no physical damage to either vehicle. Plaintiff did report being dizzy.

Plaintiff testified that the day after the accident, she was ―hurting all over.‖ It is

undisputed that Plaintiff had suffered from arthritis for forty (40) years prior to the

accident. Although she reported that this arthritic pain was in her neck, back, hands,

shoulders, legs, knees, and hips, she maintained that it was different from the pain that

she experienced after the accident. She testified that, before the accident, she had

arthritic pain three times a week or everyday if there was a flare-up of symptoms.

After the accident, Plaintiff testified that she began to hurt more and had pain in her

ribs that she had not experienced before. She rated her pain before the accident as

being in a range from a three (3) to a seven (7) but indicated that it did not prevent her

from doing her regular activities of caring for her sick husband 1 and keeping the

house. After the accident, she reported that her pain ranged from a seven (7) to a ten

(10), with some days being less than a seven (7) and that she experienced pain when

carrying out her activities of daily living. Plaintiff did not seek medical treatment

until twenty-five days after the accident, after her husband’s illness and funeral. She

treated with Dr. Darron McCann, who diagnosed her with a neck, back, rib, and

shoulder strain related to the subject accident. He administered an injection and

prescribed anti-inflammatory and pain medications. She also treated with Dr. George

Williams, an orthopedic surgeon, at the referral of Dr. McCann after MRIs showed

multiple levels and degrees of spondylosis and nerve root compression. These were

mostly degenerative and present prior to the accident. However, Dr. McCann noted

that she did not appear to have symptoms related to those findings prior to the

accident. The trial court also received the deposition testimony of Dr. Edmond

Kalifey, Plaintiff’s long-time family physician, and Danny Vermaelon, a chiropractor

who treated Plaintiff both before and after the subject accident. All agreed that

Plaintiff had an aggravation of her conditions.

Plaintiff underwent an independent medical examination performed by Dr. Stan

Foster. Dr. Foster also reviewed Plaintiff’s past medical records. His opinion was

that Plaintiff was not truthful with him on several important case points and that she

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Plaintiff’s husband resided in a nursing home at the time of the accident. He was
hospitalized a few days after the accident. Following his discharge from the hospital, he returned to
the nursing home until his death on August 23, 2009, which was only seventeen days after the
accident.
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did not sustain any injuries in the subject accident but just continued to treat for the

same exact complaints that she had prior to the accident.

The trial court found that Plaintiff was a credible witness who had nothing to

hide. Further, the trial judge stated in his written reasons for judgment:

The evidence at trial falls woefully short of proving more probable
than not that Bennie Augustine created any sudden emergency. The
evidence does confirm more probable than not that immediately prior to
the accident, Shirley Coston was distracted[,] and when turning back to
face the roadway, Coston immediately was upon the Augustine vehicle.
The impact occurred. The accident occurred as a result of the sole fault
of Shirley Coston.

The trial court went on to state that it was clear that Plaintiff suffered an aggravation

of her pre-existing conditions and that said aggravation was caused by the subject

accident, regardless of how minimal it seemed, such that she was entitled to be

compensated for the full extent of that aggravation. Accordingly, the trial court

awarded Plaintiff $40,000.00 in general damages for her past and future pain and

suffering, past and future mental anguish, and loss of enjoyment of life; $12,433.10

for past medical expenses; and $2,500.00 for future medical expenses. Plaintiff

stipulated that her damages did not exceed $50,000.00. Further, the parties stipulated

that the amount awarded was subject to a credit in the amount of $25,000.00 which

was paid by State Farm in settlement of Plaintiff’s claim against Ms. Coston prior to

trial. Therefore, the judgment reduced the award to Plaintiff to a total of $25,000.00,

plus certain enumerated costs, all court costs, and legal interest.

Defendants now appeal, asserting that the trial court: (1) committed legal error

in finding that Plaintiff was injured in this minor, low-speed accident; (2) committed

legal error in finding that Plaintiff was a credible witness; (3) erred in exclusively

relying on the testimony of Plaintiff’s treating physicians when their opinions were

unreliable; (4) erred in not considering the trial testimony of the independent medical

examiner; (5) erred in finding that Plaintiff was not at fault in the accident when she

made an abrupt stop that caused the accident; and (6) erred in awarding damages to

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Plaintiff. Plaintiff has answered the appeal, asking for damages for frivolous appeal.

We decline to award damages for frivolous appeal; however, we affirm the trial

court’s judgment.

DISCUSSION

Although Defendants claim that the trial court committed several legal errors

regarding its findings that Plaintiff was injured and in finding that Plaintiff was a

credible witness, we note that these would be errors of fact and not errors of law.

Also, the decision as to whether to give more weight to one expert opinion over

another is a factual issue. It is well settled that a trial court’s findings of fact cannot

be reversed by this court unless those findings are clearly wrong or manifestly

erroneous. Stobart v. State of Louisiana, Through Dep’t of Transp. and Dev., 617

So.2d 880 (La.1993). Therefore, the correct standard of review is manifest error.

After reviewing the record in its entirety, where the trial court’s findings are

―reasonable in light of the record,‖ we cannot reverse the trial court even if we would

have weighed the evidence differently. Sistler v. Liberty Mut. Ins. Co., 558 So.2d

1106, 1112 (La.1990).

We also recognize that the force of the collision can be considered in

determining whether a person was injured in an accident. White v. State Farm Mut.

Auto. Ins. Co., 97-1704 (La.App. 3 Cir. 4/29/98), 713 So.2d 618, writ denied, 98-1429

(La. 7/2/98), 724 So.2d 741. However, this is but one factor and ―should not be the

only factor considered when making such a determination.‖ Brown v. Trinity

Universal Ins. Co., 01-1405, p. 5 (La.App. 3 Cir. 4/3/02), 814 So.2d 747, 750, writ

denied, 02-1689 (La. 10/14/02), 827 So.2d 422.

As did the court in Brown and Seegers v. State Farm Mutual Automobile

Insurance Company, 188 So.2d 166, 167 (La.App. 2 Cir. 1966), we find that ―the

testimony of both the medical experts and the lay witnesses established the fact that

[Plaintiff] did sustain some injuries[,] and the minimal force of the collision is,

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therefore, of no material importance.‖ We find no manifest error in the trial court’s

finding that Plaintiff was a credible witness. The minor inconsistencies pointed out by

Defendants do not cast serious doubt on the veracity of Plaintiff. There is nothing to

rebut either Plaintiff’s unequivocal testimony or the medical evidence showing that

she suffered an aggravation of her pre-existing conditions.

We now address Plaintiff’s request for damages for frivolous appeal. Louisiana

Code of Civil Procedure Article 2164 provides that an appellate court may award such

damages. Appeals are favored, and because this provision is penal in nature, it must

be strictly construed. Pratt v. Louisiana State Medical Center in Shreveport, 41,971

(La.App. 2 Cir. 2/28/07), 953 So.2d 876. We can award no damages for frivolous

appeal ―unless it appears that the appeal was taken solely for the purpose of delay, that

serious legal questions are not raised, or that the attorney does not seriously believe in

the position he advocates.‖ Robinson v. Thornton, 96-1329, p. 7 (La.App. 3 Cir.

10/29/97), 705 So.2d 745, 748, writ denied, 97-2963 (La. 2/6/98), 709 So.2d 739.

While we are of the opinion that Defendants’ assignments of error have no merit,

there is no evidence that the appeal was taken solely for delay or that counsel was

insincere in advancing his arguments. Accordingly, we decline to award damages for

frivolous appeal in this case.

DECREE

There is no manifest error in the trial court’s judgment. Therefore, the

judgment in favor of Plaintiff, Bennie Augustine, is affirmed. All costs of this appeal

are assessed to Defendants/Appellants, Christus Continuing Care and Shirley Coston.

AFFIRMED.

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

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