Marilyn Mosley Haggerty v. Allstate Ins. Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1441

MARILYN MOSLEY-HAGGERTY

VERSUS

ALLSTATE INSURANCE COMPANY, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, DOCKET NO. C-20102971
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE
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SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cooks, James T. Genovese, and John E. Conery,
Judges.

AFFIRMED.

James Kirk Piccione
Brenda Sibille Piccione
P.O. Box 3029
Lafayette, LA 70502
(337) 233-9030
ATTORNEY FOR PLAINTIFF/APPELLANT
Marilyn Mosley-Haggerty

F. Paul Leger
Law Offices of Harold G. Toscano
400 East Kaliste Saloom Rd., Suite 8300
Lafayette, LA 70508
(337) 291-1743
ATTORNEY FOR DEFENDANTS/APPELLEES
Mary Grace Breaux and Allstate Insurance Company

COOKS, Judge.

In this case, Plaintiff, Marilyn Mosley-Haggerty, appeals as inadequate the

trial court’s award of damages for injuries she sustained as a result of an

automobile accident. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On May 22, 2009, Plaintiff was driving her Toyota Highlander in a southerly

direction on Ambassador Caffery Parkway in Lafayette. At the area in question,

there was ongoing construction which necessitated that all traffic proceeding

southward merge into one lane. Mary Grace Breaux, who was driving her Dodge

Ram truck, allowed Plaintiff to merge in front of her. Shortly after doing so, Ms.

Breaux rear-ended Plaintiff. Ms. Breaux was solely at fault in causing the

accident; and Allstate Insurance Company, her insurer, paid Plaintiff’s property

damage claim.

Neither party was taken to the hospital immediately after the accident.

Plaintiff alleged she suffered soreness and pain shortly after the accident, with

radiating pain down her arm, leg and back of her head. She stated she began

having headaches and the pain intensified in the days following the accident.

Plaintiff testified her symptoms continued for seven to eight months after the

accident.

Plaintiff was seen by Dr. Brad Grizzaffi, a chiropractor, who had treated her

since 2006. Dr. Grizzaffi testified Plaintiff suffered an exacerbation of a chronic

neck condition which he attributed to the May 22, 2009 automobile accident.

Plaintiff filed a personal injury suit against Ms. Breaux and Allstate. As

liability had been admitted by Defendants, the only issue at trial was the amount of

damages due. After a bench trial on the merits, the trial court rendered judgment

awarding Plaintiff $5,000.00 in general damages and $6,054.00 in medical

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expenses. The trial court issued reasons for ruling, which set forth the basis for its

ruling:

Ms. Haggerty was treated only by her chiropractor, Dr. Brad
Grizzaffi. She was first seen by him following the accident on May
25, 2009. (It is unclear whether this was a previously scheduled visit
or whether this visit was necessitated by the accident.) Dr. Grizzaffi’s
deposition was admitted at trial in lieu of his live testimony. In his
deposition, he diagnosed Ms. Haggerty with an exacerbation of a
chronic neck condition which he relates to the May 22, 2009
automobile accident. Dr. Grizzaffi first treated Ms. Haggerty in 2006
for two months and had been treating her on a regular basis since May
2008, for symptoms similar to those she suffered following this
accident.

Plaintiff and Defendant each submitted medical records from
Dr. Grizzaffi regarding Ms. Haggerty’s treatment. It causes this Court
great concern that these records give conflicting information regarding
Ms. Haggerty’s condition following this accident.

The records submitted by the Defendants as Exhibit D2 date
back to May 2008. These records indicate that Ms. Haggerty was
treated by Dr. Grizzaffi on 71 occasions from May to December 2008;
and on 35 occasions from January 2009 to May 18, 2009. The records
from May 18, 2009 (four days prior to the accident) state that Ms.
Haggerty is scheduled for recurring visits on a weekly basis. The
records on May 18, 2009, indicate the following:

SUBJECTIVE COMPLAINTS:
The patient complained of minimal neck pain.
This is mildly improved over her last visit. Marilyn also
reported minimal upper back pain, minimal pain in the
right upper arm, very mild neck pain on the right and
minimal low back pain. The upper back pain is
unchanged from the last visit, the pain in the right upper
arm is a slight worsening of the condition since the last
visit, the neck pain on the right is mildly improved over
her last visit and the low back pain is unchanged from the
last visit.

The records presented by the Defendant from the visit on May
25, 2009 indicate the following:

SUBJECTIVE COMPLAINTS:
The patient reported minimal neck pain and
minimal upper back pain. The neck pain is no different
than the last visit and the upper back pain is unchanged
from the last visit. The patient also related symptoms of
minimal pain in the right upper arm; no different from
the last visit. Marilyn also described symptoms of
minimal neck pain on the right and minimal low back
pain. The neck pain on the right is a little worse since

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her previous visit and the low back pain is no different
unchanged from the last visit.

The Defendants’ records from Dr. Grizzaffi are in direct
contrast to those records presented by the Plaintiff. The Plaintiff’s
records from Dr. Grizzaffi begin on May 25, 2009, with a “new
patient examination”, which provides:

NEW PATIENT EXAM FINDING FROM May 25, 2009:
The patient complained of moderately severe intermittent
headaches at the back of the head and minimal restricted lower back
motion on the right side. The patient complained of severe neck
stiffness on both sides and severe neck pain on the right. The patient
also reported symptoms of very severe stiffness of upper back
bilaterally and severe mid back stiffness bilaterally. Marilyn also
described symptoms of severe pain in upper back on the right, severe
right upper arm pain, acute restricted motion of right shoulder and
acute right shoulder pain. This patient described symptoms of acute
shoulder soreness and mild lower back muscle spasms on both sides.
Marilyn also reported moderate lower back tenderness on the right
side. The patient also expressed indications of moderate pain in the
right leg.

The Plaintiff’s records further state, “It should be noted that her
condition was stable prior to the accident on May 22, 2009. However,
since the accident there is a noted exacerbation of her prior symptoms
as well as new conditions that have developed.” There is no mention
of the accident in Defendant’s records which simply provide, “The
patient’s condition is responding satisfactorily.” The plaintiff
submitted bills from Dr. Grizzaffi for eight months of treatment in the
amount of $12,108.00.

The defendant, Ms. Breaux, admits to causing this accident,
thus, liability is not at issue. Dr. Grizzaffi related Ms. Haggerty’s
complaints to this accident and testified that her symptoms were
exacerbated by the accident. However, with regard to the extent of
damages, the conflicting information in the two sets of medical
records casts a cloud on the evidence presented. If this Court is to
believe the records submitted by the Defendants, Ms. Haggerty’s
complaints were no different on the visit following the accident than
on those prior to the accident. If this Court is to believe the records
submitted by the Plaintiffs, Ms. Haggerty’s condition significantly
worsened immediately following this accident.

This Court historically has never decided damages based on the
severity of physical damage to vehicles. However, in this case, taking
into account the conflicting medicals and the prior treatment to the
plaintiff, this Court feels compelled to reduce plaintiff’s claims.
Unfortunately, the chiropractor was not present in court to explain the
discrepancy of the reports for the May 25, 2009 visit and the
significance of the similarities of complaints before the accident and
the seven months thereafter.

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Taking these matters into account, the Court awards medical
bills of $6,054.00, and pain and suffering in the amount of $5,000.00,
together with interest from date of judicial interest.

Plaintiff has appealed, contending “the trial court is manifestly erroneous in its

calculation of the award to the plaintiff and [the award] constitutes an abuse of

discretion.”

ANALYSIS

The law is well established the determination of “[w]hether 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)). An appellate court may not set

aside a finding of fact by a trial court or a jury 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 if the

appellate court feels 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 (La.1989).

For Plaintiff to prevail in this appeal, she must show that the record, viewed

in its entirety, provides no reasonable basis for the trial court to disregard portions

of Dr. Grizzaffi’s expert testimony.

A review of Dr. Grizzaffi’s deposition testimony reveals it contradicts his

certified non-accident treatment records of Plaintiff. As noted by the trial court,

the May 25, 2009 non-accident record does not even reference the accident in

question, and refers to neck, right arm, upper and lower back complaints that were

no different than her prior (pre-accident) visit. Dr. Grizzaffi testified in his

deposition that Plaintiff did not return to pre-accident condition until seven or eight

months after the accident. However, Dr. Grizzaffi’s August 31, 2009 report says

he had “just finished the treatment for Marilyn on an account associated with a

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motor vehicle accident of the last three months. . . [and] will transition her back

into the wellness care program at this time.” We find the conflicts in the medical

evidence provided a reasonable basis for the trial court to seriously question and

discount the deposition testimony of Dr. Grizzaffi as to the relationship of the

medical treatment provided to Plaintiff and the accident in question.

The trial court specifically noted “the conflicting information in the two sets

of medical records casts a cloud on the evidence presented.” It also lamented the

fact that Dr. Grizzaffi was not presented at trial to “explain the discrepancy of the

reports for the May 25, 2009 visit and the significance of the similarities of

complaints before the accident and the seven months thereafter.”

Plaintiff notes in her brief that “[i]n hindsight, given the concerns addressed

by the trial court in its reasons for ruling, the inconsistent records should have been

fully explored.” However, her failure to do so places this court in an untenable

position with regard to Plaintiff’s request to increase the trial court’s award of

damages. The trial court clearly did not find the conflicts in the medical evidence

to be “small” and “inconsequential” as Plaintiff describes them in brief. Moreover,

we cannot say the trial court’s view of the evidence was not permissible. The

records presented by Defendant clearly show the complaints four days before the

accident are nearly identical to the complaints made three days following the

accident. Coupled with Plaintiff’s denial of any injury at the scene of the accident,

and the fact there was little, if any, visible damage to Plaintiff’s vehicle from the

accident, we cannot say the trial court’s refusal to award all the damages requested

by Plaintiff was an abuse of discretion.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All

costs of this appeal are assessed to Plaintiff-Appellant.

AFFIRMED.

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