Elaine Lazard v. Progressive Paloverde Ins. Co.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 19-495

ELAINE LAZARD

VERSUS

PROGRESSIVE PALOVERDE INSURANCE. CO., ET AL.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20155777
HONORABLE HERMAN CLAUSE, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

**********

Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Jonathan W. Perry,
Judges.

AFFIRMED.

Eulis Simien, Jr.
Jimmy Simien
Simien & Simien, L.L.C.
7908 Wrenwood Boulevard
Baton Rouge, LA 70809
(225) 932-9221
COUNSEL FOR PLAINTIFF/APPELLANT:
Elaine Lazard

Terry L. Rowe
Attorney at Law
P. O. Box 3323
Lafayette, LA 70502
(337) 232-4744
COUNSEL FOR DEFENDANT/APPELLEE:
State Farm Mutual Automobile Insurance Co.

Valerie Briggs Bargas
Kolby P. Marchand
Kinchen, Walker, Bienvenu, Bargas, Reed & Helm, L.L.C.
9456 Jefferson Highway
Building III, Suite F
Baton Rouge, LA 70809
(225) 292-6704
COUNSEL FOR DEFENDANT/APPELLEE:
21st Century Centennial Ins. Co.

PICKETT, Judge.

The plaintiff appeals the trial court’s judgment assessing her with 50% fault

for causing the vehicular accident at issue and failing to award her damages for the

vertigo she asserts was caused by the accident.

FACTS

Elaine Lazard filed suit to recover damages for a vehicular accident that

occurred in Lafayette on June 8, 2015. She sued Abdul Helou; driver of the other

vehicle; 21st Century Insurance Company, Mr. Helou’s insurer; and State Farm

Mutual Automobile Insurance Company, her uninsured/underinsured motorist

insurer. In her suit, Ms. Lazard alleged that Mr. Helou caused the accident, that

she was injured in the accident, and that she was entitled to recover general and

special damages to compensate her for her injuries.

The record shows that the accident occurred when Ms. Lazard and Mr.

Helou were driving east in adjacent lanes on Congress Street and their vehicles

came into contact with each other. They moved their vehicles from the street to an

adjacent parking lot and waited for a police officer to arrive. The police officer

arrived at the scene and investigated the accident but did not cite either party for

causing the accident due to the drivers’ conflicting statements. Both vehicles were

damaged. Ms. Lazard’s vehicle was damaged along the driver side, while Mr.

Helou’s vehicle was damaged on the front right fender. No evidence, other than

the parties’ testimony and the damage to the vehicles, address how the accident

occurred.

At trial, Ms. Lazard presented Mr. Helou’s testimony and her testimony as to

how the accident occurred. Mr. Helou testified that he was driving east in the left

lane of Congress Street east of its intersection with Bertrand Drive, when Ms.

Lazard turned right from Bertrand Drive into the right lane of Congress Street

heading east. According to Mr. Helou, after she entered Congress Street, Ms.

Lazard activated her left turn signal, so he slowed his vehicle to allow her to enter

the left lane. She did not switch lanes, and he accelerated to get past her. As he

accelerated, Ms. Lazard switched lanes. Mr. Helou testified that he tried to avoid

the accident by moving into the left turn lane but was unsuccessful. Mr. Helou

further testified that they moved their vehicles to avoid blocking traffic and that he

followed Ms. Lazard as she drove from the street. He denied that he suggested to

Ms. Lazard that they move their cars after the accident.

Ms. Lazard testified that she was traveling east in the right lane of Congress

Street when Mr. Helou drove his vehicle into her lane of travel and hit her driver’s

side door. She denied using her left turn signal and stated that she never intended

to change lanes. She further testified that Mr. Helou approached her after the

accident happened and stated: “let’s hurry and get our car[s] into the Cajunfield

parking lot before the policeman come[s].” Ms. Lazard introduced a photograph

into evidence showing damage to the driver’s door of her car.

Ms. Lazard testified that she injured her knees and right thumb and that the

fingernails of her left and right hands were broken down into their nailbeds. She

further testified that she suffered head injuries, headaches, neck and back pain, and

dizziness as a result of the accident. In addition to her testimony, she presented the

testimony of her husband and Dr. P. Elise Scallan, an ear, nose and throat specialist

who treated her after the accident for Benign Paroxysmal Positional Vertigo

(BPPV), and the medical records and bills regarding the medical treatment she

received for the injuries she suffered in the accident.

2

At the conclusion of the trial, the trial court gave oral reasons for ruling,

finding that both drivers were 50% at fault in causing the accident and awarding

Ms. Lazard $25,000.00 in general damages and $911.25 in special damages. The

trial court concluded that Ms. Lazard did not prove that her BPPV was caused by

the accident and did not award her any damages for that condition. Ms. Lazard

appealed.

ASSIGNMENTS OF ERROR

On appeal, Ms. Lazard assigns the following errors with the trial court’s

judgment:

1. The Trial Court erred in failing to resolve the irreconcilable dispute
in the testimony between the plaintiff and the defendant and instead
simply decided to allocate fault at 50/50 because it would not make
a determination.

2. Despite proof that clearly met the plaintiff’s burden under Housley
v. Cerise, 579 So.2d 973 (La.1991); Maranto v. Goodyear, 650
So.2d 757 (La.1995); Dabog v. Deris, 625 So.2d 492[] (La.1993)
and no countervailing evidence the Trial Court erred in failing to
find that the symptoms related to plaintiff’s Benign Paroxysmal
Positional Vertigo was caused by the collision.

Fault

The trial court gave the following reasons for its determination that the

parties were each 50% at fault in causing the accident:

[I]t has been proven than [sic] an accident occurred in this case on
June 8, 2015, and that it involved a collision between the vehicle of
the plaintiff and the vehicle of the defendant. That’s . . . the only
thing I can say that’s positively without doubt, established. . . . There
are two versions how the accident happened. Defendant says plaintiff
went in his lane. Plaintiff says defendant went in her lane. No other
persuasive evidence was offered. As far as . . . having a basis to give
credibility to one as opposed to the other, I really have no basis to say
that one of the witnesses was more credible than the other witness.
They both had indicia of credibility. They both had some indicia of
non-credibility. I find it was about equal. So it leaves me, as far as
the question of fault, to say they were approximately both 50 percent
at fault.

3

Ms. Lazard had the burden of proving by a preponderance of the evidence

that Mr. Helou caused the accident and that the accident caused the injuries for

which she seeks damages. Miller v. Leonard, 588 So.2d 79 (La.1991). “Proof by

direct or circumstantial evidence is sufficient to constitute a preponderance when

the entirety of the evidence establishes the fact or causation sought to be proved is

more probable than not.” Id. at 81.

Ms. Lazard urges that the trial court committed legal error in failing to find

that she or Mr. Helou was 100% at fault for the accident. Appellate courts conduct

a de novo review if the trial court makes an incorrect legal conclusion regarding a

question of law. Latiolais v. Bellsouth Telecomms., Inc., 11-383 (La.App. 3 Cir.

10/5/11), 74 So.3d 872. Factual findings are reviewed pursuant to the manifest

error-clearly wrong standard, and the findings of the trial court will not be set aside

unless a review of the entire record shows that they are clearly wrong. Rosell v.

ESCO, 549 So.2d 840 (La.1989).

Ms. Lazard relies on Simmons v. Transit Mgmt. of Se. La., Inc., 01-1648

(La.App. 4 Cir. 5/8/02), 819 So.2d 1083, writs denied, 02-2112, 02-2097 (La.

11/1/02), 828 So.2d 581, 828 So.2d 582, respectively, to support her contention

that the trial court legally erred in not making a determination that one party was

more credible than the other and ruling in that party’s favor. The court in

Simmons, 819 So.2d at 1086 (emphasis added), observed:

In the instant case, two diametrically opposite versions of the
accident were presented at trial. The plaintiffs’ version has Mr.
Simmons falling out of his wheelchair while he is being pushed off of
the lift. The defendants’ version has Mr. Simmons falling out of his
wheelchair while he was wheeling himself down the sidewalk. It was
not reasonable for the jury to conclude that Mr. Simmons and Mr.
James were each 50% at fault in causing the accident. Based on the
stories presented by both parties, the jury should have made a

4

credibility determination and found one party or the other 100% at
fault because each version of events is mutually exclusive and
incompatible with the other. Because we find that the jury’s finding as
to fault was manifestly erroneous, we must now examine the record
and make a determination as to fault.

After making these conclusions, the court continued and explained that the plaintiff

presented evidence corroborating his version of the accident which included

deposition testimony of an eyewitness to the accident and an accident report

prepared by a supervisor for the defendant that concluded the defendant’s

employee was at fault for the accident. This is not the case here.

Ms. Lazard further argues that Nelson v. Zurich Insurance Co., 247 La. 438,

172 So.2d 70 (1965), required the trial court to rule in her favor or Mr. Helou’s

favor. The supreme court observed in Nelson, 247 La. at 446, 172 So.2d at 72

(emphasis added):

‘Where witnesses differ, the courts should reconcile, if possible, the
apparent contradictions their testimony presents. If this cannot be
done, then the probabilities or improbabilities of their respective
statements must be considered in the light of their capacity,
opportunity or incentive for observation, the amount of corroboration,
if any, and the degree of proof required.’ Fridge v. Talbert, 180 La.
937, 158 So. 209 [(1934)].

The supreme court rejected Ms. Lazard’s argument in Miller, 588 So.2d 79,

where it explained that prior discussions in which it indicated that a court must

weigh and accept one party’s testimony over another’s was an incorrect

interpretation of the language used therein. The supreme court clarified that those

discussions were “intended to serve as an aid or suggested method for judicial

determination of facts from which it can be decided which party, if any, has borne

the burden of proving his case by a preponderance of the evidence.” Id. at 83

(emphasis added).

5

The supreme court further explained:

Where the evidence is truly in equipoise and neither of the
opposing plaintiffs satisfies the burden of proof by a preponderance of
the evidence, must the trial judge nevertheless decide for one of the
parties? We think not.

....

This court is mindful of its duty to decide issues of law and
fact. We are also aware dismissal of both opposing plaintiffs, where
neither satisfies his burden of proof by a preponderance, may result in
an innocent litigant without a remedy. The alternative, however, is
unpalatable. Where the evidence is truly balanced, such that neither of
the opposing plaintiffs satisfies the burden of proof by a
preponderance, the trial court forced to decide the case must in
essence render a decision based on the fortuitous flip of a coin. The
distinction between reviewing the evidence and employing
interpretative techniques of fact finding to determine if a decision can
be made (i.e., has one of the parties proven his case by a
preponderance of the evidence?) and being required to reach a
decision, even where the total evidence is in equipoise, is critical. The
first is a proper function of the court. The second is not.

Id. at 83-84.

Unlike Simmons, 819 So.2d 1083, Nelson, 172 So.2d 70, and Miller, 588

So.2d 79, and the other cases Ms. Lazard cites, neither Ms. Lazard nor Mr. Helou

presented any evidence corroborating their description of the accident. Moreover,

the manner in which the accident occurred and the damage to the parties’ vehicles

is such that either or both parties could have been at fault, by negligently veering

into the other parties’ lane of travel. There was no physical evidence such as

debris from the collision in either party’s lane of travel that would corroborate one

version of the accident. After viewing the parties and hearing their testimony, the

trial court determined neither party was more credible than the other. We are not

in a position to second-guess that conclusion. Accordingly, Ms. Lazard has failed

to show the trial court legally erred in failing to conclude that she or Mr. Helou

was completely at fault for the accident.

6

Damages

Ms. Lazard next argues that the trial court erred in concluding that she did

not prove the benign paroxysmal positional vertigo (BPPV) she experienced after

the accident was caused by the accident. A determination that “an accident caused

a person’s injuries is a question of fact which should not be reversed on appeal

absent manifest error.” Housely v. Cerise, 579 So.2d 973, 979 (La.1991).

Ms. Lazard argues that the following presumption for proving causation set

forth in Housely, 579 So.2d at 980 (quoting Lukas v. Insurance Company of North

America, 342 So.2d 591, 596 (La.1977), applies to her claim for BPPV damages

and that the trial court erred in refusing to apply the presumption:

“[a] claimant’s disability is presumed to have resulted
from an accident, if before the accident the injured
person was in good health, but commencing with the
accident the symptoms of the disabling condition appear
and continuously manifest themselves afterwards,
providing that the medical evidence shows there to be a
reasonable possibility of causal connection between the
accident and the disabling condition.

Therefore, if the fact finder’s findings are reasonable in light of the record

reviewed in its entirety, the court of appeal may not reverse. Id. Furthermore,

when there are two permissible views of the evidence, the fact finder’s choice

between them cannot be manifestly erroneous or clearly wrong. Id.

The trial court made the following findings of fact as to Ms. Lazard’s claim

for BPPV damages:

As to the injuries relative to the BPPV the Court finds that the
Housley presumption . . . the symptoms . . . didn’t seem to appear
shortly after the accident. In fact, the first mention was over two
months, post-accident, despite an opportunity in giving history to
medical people that there was a dizziness issue. But it didn’t happen.
In fact, it finally happened with Dr. Scallan, as a result of a note
which was furnished, post the first examination. So I find that [the

7

plaintiff has] not established damages and is not entitled to Housley
presumption on the question of BPPV.

Ms. Lazard made her first complaint of dizziness to a medical provider on

August 10, 2015, when she reported to a physician at an After Hours clinic that,

she had been experiencing spinning dizziness with changes in her posture for three

days. The physician noted that the symptoms were acute and diagnosed BPPV.

On August 12, 2015, Ms. Lazard saw Dr. Scallan and reported that she had

experienced dizziness for three days “with movement, turning her head right and

left.” After seeing Dr. Scallan, Ms. Lazard saw an audiologist in Dr. Scallan’s

office, who documented that Ms. Lazard reported to her that she had been on a trip

to Chattanooga, Tennessee, and began experiencing dizziness after she returned

home. Dr. Scallan’s records show that two days after her visit, Ms. Lazard faxed a

statement in which Ms. Lazard reported that she began experiencing dizziness

shortly after being involved in a vehicular accident.

Dr. Scallan testified that BPPV is a vestibular disorder to the inner ear which

is one of the most common causes of vertigo. It is more common in older adults

and females. Dr. Scallan testified that BPPV is generally idiopathic1 in nature and

that typically only a very small percentage of BPPV is precipitated or caused by a

particular event. She explained that it was not common for an accident to be the

cause of dizziness when there is a delay such as the one between this accident and

Ms. Lazard’s first complaints of dizziness. Dr. Scallan ultimately testified that it

was possible the accident at issue or her trip to Chattanooga caused Ms. Lazard’s

BPPV or that the condition occurred without being caused by a specific event.

1
The term idiopathic is defined as “arising spontaneously or from an obscure or unknown
cause.” https://www.merriam-webster.com/dictionary/idiopathic.

8

As the trial court noted in its reasons for ruling, though Ms. Lazard testified

that she began experiencing dizziness immediately after the accident, she did not

report the dizziness to Dr. Donnie Batie, her primary care physician, on July 16,

when she saw him to monitor her hyperlipidemia. Dr. Batie’s record for that visit

indicated that she complained of headache and low back pain but denied having

dizziness.

For these reasons, we find no manifest error with the trial court’s finding

that Ms. Lazard failed to show that her BPPV commenced with the accident and,

therefore, find no error with its refusal to apply the Housely presumption to her

damage claim for this condition.

DISPOSITION

The trial court’s judgment is affirmed. All costs of this appeal are assessed

to Elaine Lazard.

AFFIRMED.

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

9