Melissa Dore v. Mitsui Sumitomo Ins., USA, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-875

MELISSA DORE, ET AL.

VERSUS

MITSUI SUMITOMO INS., USA, INC., ET AL.

**********

APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 08-C-1875-D
HONORABLE DONALD WAYNE HEBERT, DISTRICT JUDGE

**********

JOHN E. CONERY
JUDGE

**********

Court composed of John D. Saunders, J. David Painter, Shannon J. Gremillion,
Phyllis M. Keaty, John E. Conery, Judges.

Saunders, J., dissents and assigns written reasons.
Keaty, J., dissents for the reasons assigned by Judge Saunders.

AFFIRMED.

David Ross Frohn
Frohn & Thibodeaux
Post Office Box 2090
Lake Charles, Louisiana 70602-2090
(337) 433-5523
COUNSEL FOR DEFENDANTS/APPELLEES:
Mitsui Sumitomo Ins., USA, Inc.
Allan Johnson
Ventura Foods, LLC

James Steven Gates
Morrow, Gates, & Morrow
Post Office Drawer 219
Opelousas, Louisiana 70571-0219
(337) 942-6529
COUNSEL FOR PLAINTIFF/APPELLANT:
Melissa Dore
Cory Blake Credeur
Cody Scott Credeur

Kevin Paul Tauzin
Attorney at Law
1228 Camelia Boulevard, Suite A
Lafayette, Louisiana 70508
(337) 988-7588
COUNSEL FOR PLAINTIFF/APPELLANT:
Melissa Dore, et al.
Cory Blake Credeur
Cody Scott Credeur

CONERY, Judge.

In this automobile accident case, Plaintiff, Melissa Dore, asserts that her

accident with Defendant, Allan Johnson, caused her extensive injuries for which

she claimed damages. After trial, the jury found Johnson was one hundred percent

at fault for the accident, but also found that Dore was not entitled to any damages

for her alleged injuries. The trial court then denied Dore’s motion for judgment

notwithstanding the verdict (JNOV) and alternative motion for a new trial. Dore

appeals the jury’s verdict and trial court’s denial of her motions. For the following

reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 8, 2007, Dore was travelling south on Interstate 49 just outside of

Opelousas, Louisiana, in the left lane. Johnson was travelling south in the right

lane. The passenger side of Dore’s vehicle came into contact with the driver’s side

of Johnson’s vehicle as Dore passed Johnson. Dore and Johnson gave conflicting

testimony about the location of the incident and severity of the impact. Johnson

received a citation for improper lane change and paid the citation without contest.

Dore claims Johnson abruptly changed lanes causing extensive damage to

the vehicle she was driving. She claims she was hurt in the collision and began

medical treatment the day after the accident. Over the course of her treatment, she

underwent two surgeries, one for injuries to the disc located at C6-7 in her neck

and the other at L5-S1 in her lower back, all of which she related to the accident.

Her treating doctors related her injuries and treatment to the accident, assuming her

history of how the accident occurred and the severity of the impact was accurate.

Johnson claimed that, as he was attempting to begin a lane change from right

to left, Dore brushed his vehicle and sped past him at a fairly high rate of speed,

causing only minor damages to the rental vehicle he was driving. Though at fault

for improper lane change, Johnson claimed Dore was partially at fault and could

not have been injured by this relatively minor impact.

On April 7, 2008, Dore filed suit against, inter alia, Johnson, Ventura Foods,

L.L.C. (Ventura), Johnson’s employer, and Mitsui Sumitomo Insurance USA

Incorporated (Mitsui), Ventura’s insurance carrier. It was stipulated that Johnson

was in the course and scope of his employment with Ventura and that Mitsui had

liability insurance coverage for this accident.

A jury trial was held November 2-3, 2011. The jury reached a verdict

finding that Johnson was one hundred percent at fault for the accident, but that

Dore suffered no damages as a result of the accident and awarded Dore nothing.

Dore filed a motion for JNOV and, alternatively, a motion for a new trial

which were heard on May 7, 2012. The trial court thoughtfully considered and

denied the motions for extensive oral reasons assigned. Thereafter, on May 17,

2012, Dore died from causes unrelated to this accident. She was survived by her

two adult children, Cory Blake Credeur and Cody Scott Credeur. Her children

were substituted as the proper parties plaintiff to continue the action.1 Dore timely

filed this appeal, presenting two questions for review:

1. Was the jury manifestly erroneous, in awarding no damages to
Plaintiff, Melissa Dore, and finding that she suffered no
damage, where there were stipulated property damages of
$2,049.07,2 medical expenses of $151,032.42, and two spinal
surgeries which her surgeons related to the August 8, 2007
accident?

1
For sake of clarity and brevity, we will continue to use “Dore” when referring to Plaintiff.
2
Dore did not own the vehicle she was driving at the time of the accident. The parties stipulated
outside the presence of the jury that property damages had been paid to the owner of the vehicle,
Dore’s mother. There was no line on the verdict form for property damages and none were
claimed by Dore at trial.

2

2. Did the trial Judge commit legal error in failing to grant
Plaintiff’s Motions for post-trial relief (i.e., Motion for New
Trial, alternatively, Motion for JNOV)?

DISCUSSION

Standard of Review

“[A]ppellate jurisdiction of a court of appeal extends to law and facts.”

La.Const. art. 5, § 10(B). Our supreme court, in Ryan v. Zurich American

Insurance Co., 07-2312, p. 7 (La. 7/1/08), 988 So.2d 214, 219, reiterated the

standard of review for facts as follows:

The jury’s determination of the amount, if any, of an award of
damages . . . is a finding of fact. The Civil Code provides that “[i]n
the assessment of damages in cases of offenses, quasi offenses, and
quasi contracts, much discretion must be left to the judge or jury.” La.
C.C. art. 2324.1.

The standard of review of a jury’s findings is well-settled:

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).

Cole v. Allstate Ins. Co., 07-1046, p. 2 (La.App. 3 Cir. 6/05/08), 987 So.2d 310,

312, writ denied, 08-1463 (La. 10/31/08), 994 So.2d 535 (citing Earls v.

McDowell, 07-17 (La.App. 5 Cir. 5/15/07), 960 So.2d 242).

“Whether an accident caused a person’s injuries is a question of fact which

should not be reversed on appeal absent manifest error.” Housley v. Cerise, 579

So.2d 973, 979 (La.1991) (citing Mart v. Hill, 505 So.2d 1120 (La.1987)). As this

court stated in Bernard v. Hartford Insurance Co., 09-71, p. 3 (La.App. 3 Cir.

6/3/09), 12 So.3d 1098, 1100-01, writ denied, 09-1524 (La. 10/9/09), 18 So.3d

3

1285 (quoting Sportsman Store of Lake Charles, Inc. v. Sonitrol Security Sytems of

Calcasieu, Inc., 99-201, p. 6 (La. 10/19/1999), 748 So.2d 417, 421):

It is well settled that a court of appeal may not set aside a
finding of fact by a trial court or a jury in the absence of “manifest
error” or unless it is “clearly wrong,” and where 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); Arceneaux
v. Domingue, 365 So.2d 1330, 1333 (La.1978); Canter v. Koehring
Co., 283 So.2d 716, 724 (La.1973). The rule that questions of
credibility are for the trier of fact applies to the evaluation of expert
testimony, unless the stated reasons of the expert are patently
unsound. Lirette v. State Farm Ins. Co.,[563 So.2d] at 853; Sistler v.
Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990).

The Bernard court further stated:

When findings are based on determinations regarding the
credibility of witnesses, the manifest error-clearly wrong standard
demands great deference to the trier of fact’s findings; for only the
fact-finder can be aware of the variations in demeanor and tone of
voice that bear so heavily on the listener’s understanding and belief in
what is said.

Id. at 1102 (quoting Rosell v. ESCO, 549 So.2d 840, 844 (La.1989)).

Though it is well established that “a defendant takes his victim as he finds

him and is responsible for all natural and probable consequences of his tortious

conduct,” the jury is responsible for determining what damages, if any, were

caused by the accident. Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La.1993).

Louisiana jurisprudence has also established that when a person was in good

health prior to an accident, and symptoms appear after the accident, that person’s

injuries are presumed to have resulted from the accident. Bernard, 12 So.3d 1098.

That presumption does not apply and/or is overcome should the jury conclude the

plaintiff was not credible and the claimed injuries were not caused by the accident.

The trial court correctly charged the jury on all issues, and no objections were

4

lodged at trial and no issues raised on appeal as to the law to be applied to this

case.

Liability and No Damages

In her first issue raised, Dore contends the jury was manifestly erroneous in

finding she suffered no damages where there were stipulated property damages of

$2,049.07. In Dore’s original brief, counsel calls our attention to Exhibits P2W

and P2X which show the property damage estimate and alignment costs for the

vehicle Dore was driving total $2,049.02: “Despite this stipulated evidence of

damage, the jury found that Ms. Dore suffered no damage.” What counsel for

Dore does not reveal is that the vehicle was owned by Maizel Brasseaux, Ms.

Dore’s mother. As indicated in footnote 2 herein, the property damage claim was

settled out of court with the owner of the vehicle and that issue was not presented

to the jury. The damage estimate was relevant to Dore’s attempt to prove the

severity of the impact.

As to medical expenses, Defendants did stipulate to the authenticity of the

medical bills, and stipulated that the medical expenses Dore was claiming

amounted to $151,032.42. However, Defendants reserved their right to challenge

medical causation. Indeed, that was the key issue decided by the jury.

The jury found Johnson was one hundred percent at fault for the accident,

and Defendants do not contest liability on appeal. Defendants contend that the key

facts at issue in this case are the severity of the accident and the feasibility of the

accident having caused compensable injuries to Dore. Defendants claim Dore’s

credibility, or lack of credibility, was key to the jury’s decision. According to

Defendants, we must determine whether there is sufficient support in the record for

5

the jury’s verdict of no damages. We agree with Defendants’ framing of the

relevant questions in this case.

The jury was presented with two diametrically opposed versions of how the

accident occurred. Dore alleged she and Johnson were travelling side by side on I-

49, she in the left southbound lane, he in the right lane, when Johnson’s car

suddenly moved into her lane and hit her vehicle, causing extensive damages and

bodily injury.

Dore argues that her testimony was corroborated by her biomechanical

engineer, the photographs of her mother’s vehicle, and the damage estimates for

her mother’s vehicle. According to Dore’s expert, the impact caused sufficient

lateral movement to her body which was consistent with the severity of her

injuries.

Johnson testified to the contrary, alleging that Dore sped past him and barely

“brushed” his vehicle as he was trying to change lanes, the two vehicles barely

touching. Johnson’s vehicle had only minor damage on the left front fender, which

he characterized as the size of a hand. Johnson claims he then had to “chase” Dore

for approximately one mile, stopping her on the top of an overpass so that the

incident could be reported for insurance purposes.

The investigating officer testified that Dore told him she was not injured. He

did not take pictures of the vehicles, as the property damage was minor. The

officer testified that after he completed his investigation, both Dore and Johnson

drove their vehicles from the scene. Defendants’ expert witness, a biomedical

engineer, testified that this was a minor impact collision and could not have caused

the severe injuries claimed by Dore.

The jury heard all of the evidence, viewed the property damage estimates

6

and photographic evidence of the damage to the vehicle driven by Dore, and even

requested to see the photographs again during deliberations. Able counsel for Dore

strenuously argued to the jury that for the vehicle Dore was driving to have

sustained this much damage, the collision had to be severe.

We find there was sufficient evidence in the record, including the

photographs, the testimony of Johnson, the testimony of the investigating officer

and of Defendants’ expert, that a jury could reasonably find that the accident was

not severe enough to have caused significant injuries or damages to Dore, and that

her claims were not credible.

In brief and at oral argument, counsel for Dore made much of the photos of

Dore’s mother’s vehicle, which he claims showed “significant rubber marks” on

the passenger side that could only have come from a significant impact from

Johnson’s left front tire being turned to the left at the time of impact. However,

Johnson admitted he was trying to change lanes from right to left when Dore’s

vehicle sped past him and “brushed” his vehicle. The jury heard the evidence, saw

the pictures, examined the damage estimates, and awarded no damages.

As to Dore’s alleged injuries and medical causation, all of Dore’s medical

expert testimony as to causation was premised on the credibility of Dore and her

truthfulness in reporting her medical history to her doctors. Dore specifically

directs us to the testimony and medical records of Dr. Juneau. An MRI taken

shortly after the accident was interpreted by Dr. Juneau and the radiologist to show

high intensity changes at C-6/7 consistent with a recent injury at that level.

However, Dr. Juneau also testified that if Ms. Dore’s body did not move as she

claims it did, then the accident could not have caused her injuries and her medical

treatment would not have been related to the collision.

7

Despite counsel for Dore’s protestations to the contrary, just because

evidence of medical treatment was presented, it does not necessarily follow that the

jury is required to conclude that the medical treatment was caused by this accident.

Credibility calls are for the jury to decide. Lirette, 563 So.2d 850. Based upon the

evidence and testimony in the record, a jury could reasonably conclude that Dore

did not give accurate medical histories to her physicians and that she lacked

credibility.

The conflicting evidence given by the parties and their experts in this case

supports the conclusion that there are two permissible views of the evidence.

Lafayette City-Parish Consol. Gov’t v. Person, 12-0307 (La. 10/16/12), 100 So.3d

293. The jury’s findings are reasonable based upon the evidence in the record,

and the jury’s verdict was not clearly wrong or manifestly erroneous. This

assignment of error has no merit.

Disposition of Post-Trial Motions

In Dore’s second question presented for review, she claims that the trial

judge committed legal error in failing to grant Dore’s motions for JNOV, or,

alternatively, new trial.

A JNOV is warranted only when the facts and inferences point so strongly

and overwhelmingly in favor of one party that reasonable jurors could not arrive at

a contrary verdict. Davis v. Wal-Mart Stores, Inc., 00-0445 (La. 11/28/00), 774

So.2d 84.

A motion for new trial, however:

requires a less stringent test than for a JNOV as such a determination
involves only a new trial and does not deprive the parties of their right
to have all disputed issues resolved by a jury. [Joseph v. Broussard
Rice Mill, Inc., 00-0628 (La.10/30/00), 772 So.2d 94.] “Although the
language is similar between the standards for a JNOV and new trial,

8

there is a real difference between a finding that no evidence existed
for a rational jury to reach a particular result and a finding that a jury
could not have reached its conclusion on any fair interpretation of the
evidence.” Gibson [v. Bossier City Gen. Hosp., 594 So. 2d 1332, 1336
(La. Ct. App. 1991).] Notably, in considering whether the verdict was
supported by any “fair interpretation of the evidence” on a motion for
new trial, the trial judge is free to weigh the evidence and make
credibility determinations, and is not required to view the evidence in
the light most favorable to the non-movant as on a JNOV motion.

Martin v. Heritage Manor S. Nursing Home, 00-1023, p. 4-5 (La. 4/3/01), 784

So.2d 627, 631(footnotes omitted).

The trial court below heard all the evidence and correctly evaluated the case

under both the JNOV and new trial standard. As to the JNOV standard he stated:

“I cannot find that reasonable persons could not reach different conclusions given

the evidence presented.”

Under the less strict new trial standards the trial judge stated:

The bigger question in my mind is the Motion for New Trial. I’m
going to tell you that had I decided the damage section I would have
decided it differently. So what? I’m not allowed to supplant unless I
feel that some egregious miscarriage of justice has occurred. I can tell
you that I would not have decided it that way. The jury had ample
opportunity to hear two very good counsel make two very cogent
arguments on what was presented. Dr. Juneau’s testimony was well
pointed out to the jury that the hotspots indicated by the MRI, CAT
scans, the diagnostic testing indicated that the injuries which
ultimately led to the surgeries in the neck and the back were consistent
with a time period. I remember counsel making that argument quite
clearly. Mr. Frohn says to the jury well, it’s true, and he didn’t bring
his own medical guy, he just brought a biomedical guy, but - -
biomechanical, I’m sorry, but he did ask him on cross, if her body
didn’t move would you find that the injuries are consistent with the
accident? And he said no. They evidently accepted that. As I said, I
would have decided it differently but I don’t think - - you asked for a
jury trial, that’s why we have juries, and I don’t get to supplant my
thought process for juries, except for very limited and restricted
circumstances and I do not believe we have risen to that level today
and I deny the Motion for JNO[V] and the Motion for New Trial.

The experienced trial judge listened carefully to all of the arguments and

correctly applied the law. His decision to deny a JNOV or new trial was within his

9

discretion and must be affirmed.

CONCLUSION

Defendants characterized this case as a “she-said/he-said” case. We agree

that this case was decided on credibility. The jury found: “she said—we didn’t

believe.”

For the foregoing reasons, we affirm the jury verdict in favor of Defendants,

Allan Johnson, Ventura Foods, LLC, and Mitsui Sumitomo Insurance USA, Inc.

We also affirm the trial court’s denial of Plaintiff, Melissa Dore’s, motion for

judgment notwithstanding the verdict and alternative motion for new trial. All

costs of this appeal are assessed against Appellant, Melissa Dore.

AFFIRMED.

10

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

12-875

MELISSA DORE, ET AL.

VERSUS

MITSUI SUMITOMO INS., USA, INC., ET AL.

SAUNDERS, J., dissents and assigns written reasons.

The theory that the vehicles were moving in a substantially parallel direction

is sacrosanct to the defense of a low impact “brushing” type contact. This theory,

however, is fatally flawed.

The record shows that there was only minimal contact between the left front

fender of the Johnson vehicle and the right side of the Dore vehicle. This damage

was described as the “size of a hand” by Johnson. Additionally, the record

contains a photo which established that there was a rubber scrape along the length

of the right side of the Dore vehicle. This substantial contact between the Johnson

vehicle’s left front tire and the Dore vehicle’s right side could only be made if

Johnson’s left front tire was “outside the wheel well” as testified to by Dore’s

mechanical engineer. This testimony is supported by common observation and the

laws of physics and is uncontroverted in the record.

These same sources mandate that the steering wheel must be turned for the

tire to leave the wheel well. The vehicle will follow the tire wherever it goes.

These observances are also uncontroverted in the record.

The conclusion is inescapable that the rubber markings on the Dore vehicle

cannot coexist with a “brushing” type contact since the Johnson tire had to be

turned from its wheel well and into the Dore vehicle to make contact.

1

I have read the record, briefs, and the majority opinion in search of a theory

that would allow a “brushing” type contact to coexist with the tire impact shown in

the photograph in the record. I have found no such theory and no real discussion

of the subject except in the arguments submitted by Dore.

In my view, the physical evidence categorically contradicts the theory of a

“brushing” impact. The jury verdict is, therefore, based on a physical impossibility

and, as such, is unsupported by the record. Accordingly, I respectfully dissent.

2