Derrick Alexander v. Government Employees Insurance

NOT FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-622

DERRICK ALEXANDER

VERSUS

GOVERNMENT EMPLOYERS INSURANCE COMPANY, SILVINA REID
AND STATE FARM MUTUAL AUTOMOBILE INSURANCE CO.

************
APPEAL FROM THE
CITY COURT OF ALEXANDRIA
PARISH OF RAPAIDES, DOCKET NO. 144518
HONORABLE RICHARD E. STARLING, JR., CITY COURT JUDGE

************
SYLVIA R. COOKS
JUDGE
************

Court composed of Sylvia R. Cooks, Chief Judge, Billy Howard Ezell and D. Kent
Savoie, Judges.

AFFIRMED.

Jerald Edward Knoll
Jerald Edward Knoll, Jr.
Laura B. Knoll
Chancey Anna Kimble
The Knoll Law Firm
233 S. Main Street
Marksville, LA 71351
(318) 253-6200
COUNSEL FOR PLAINTIFF/APPELLANT:
Derrick Alexander

Andrew P. Texada
Stafford, Stewart & Potter
3112 Jackson Street
Alexandria, LA 71304
(318) 487-4910
COUNSEL FOR DEFENDANTS/APPELLEES:
State Farm Mutual Automobile Insurance Co.

COOKS, Chief Judge.

On January 12, 2019, Plaintiff, Derrick Alexander, was exiting Interstate 49

in Alexandria, Louisiana using the Broadway Avenue exit. Plaintiff testified he

came to a complete stop at the traffic light which controls the exit. When the light

turned green, he proceeded forward and was struck on the driver’s side door by a

vehicle driven by Silvina Reid. The force of the collision caused the air bags in

Plaintiff’s Honda Accord to deploy. It was later determined that Plaintiff’s vehicle

was totaled as a result of the accident. Ms. Reid admitted to the responding officer

that she crossed on a red light.

Plaintiff suffered a momentary loss of consciousness at the scene. Following

his removal from the vehicle by emergency personnel, Plaintiff was taken by

ambulance to Christus St. Frances Cabrini Hospital. He complained of numbness

on his left side and extremities. Plaintiff began treatment with Dr. Robert Rush of

Injury Management Specialists in Alexandria. He was diagnosed with cervical,

thoracic and lumbar strains, left cervical radiculopathy, left ulnar neuropathy and

left shoulder problems. Dr. Rush recommended Plaintiff undergo physical therapy

at Elite Physical Therapy. After the physical therapy had limited effect on Plaintiff’s

symptoms, Dr. Rush referred Plaintiff for cervical and lumbar MRI’s. Dr. Rush

stated the MRI of the lumbar spine showed a small herniation at L5-S1, and the

cervical MRI showed some cervical disc disease. Plaintiff, noting that physical

therapy had offered very little improvement, requested to see a chiropractor at Elite

Healthcare Alliance. Plaintiff also underwent massage therapy to alleviate the

lumbar and cervical pain he was experiencing, as well as performing home exercises

recommended by his physicians.

Plaintiff filed a personal injury suit in the Alexandria City Court. The vehicle

Silvina Reid was driving was insured by Shelter Insurance Company with liability

limits of $15,000.00/$30,000.00. In addition, Ms. Reid had a personal liability

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insurance policy with Government Employers’ Insurance Company (GEICO) with

liability limits of $30,000.00/$60,000.00. Plaintiff was insured by State Farm

Mutual Automotive Insurance Company with uninsured/underinsured motorist

coverage limits of $15,000.00/$30,000.00. Prior to trial, Plaintiff settled with

Shelter for payment of its policy limits of $15,000.00 and with GEICO for its

liability limits of $30,000.00. Therefore, only State Farm, in its role as UM insurer

of Plaintiff, remained as a defendant.

Through the date of trial, Plaintiff totaled $12,781.18 in itemized medical

expenses. Plaintiff was the only witness to testify live at trial, and the deposition

testimony of Dr. Rush was entered into evidence. Plaintiff, who worked as a

certified personal trainer, testified he was unable to see clients for nearly a month in

the immediate aftermath of the accident. He testified he lost flexibility and mobility

due to the injuries he sustained in the accident, which he maintained persisted up to

the date of trial. He noted the physical limitations he has placed on himself since

the accident made it difficult to perform his job as a personal trainer. On cross-

examination, defense counsel noted Plaintiff had placed several workout and

running videos on social media which seemingly contradicted his testimony that he

was physically impacted by the injuries he suffered in the accident.

Following trial, the city court judge rendered oral reasons from the bench.

The judge found Ms. Reid was one hundred percent (100%) at fault in causing the

accident. The judge noted that Plaintiff was a “very credible witness” and found the

evidence established Plaintiff was having problems up to the date of trial. The judge

then awarded $35,000.00 in damages for past pain and suffering, $12,781.18 in

medical expenses and $15,000.00 in future pain and suffering (for a total award of

$62,781.18. State Farm, as UM insurer, was entitled to a $45,000.00 credit for the

prior settlements between Plaintiff and Shelter and GEICO. State Farm was then

cast in judgment for its limits of $15,000.00 plus court costs and legal interest.

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State Farm has appealed the lower court judgment, contending the city court

judge erred in finding there was sufficient proof that Plaintiff would suffer any future

pain and suffering, and any award for future pain and suffering was manifestly

erroneous. In the alternative, State Farm maintains, even if there were sufficient

evidence of future pain and suffering, the total award of $50,000.00 in general

damages is clearly excessive. Finding no manifest error on the part of the city court

judge, we affirm the lower court judgment in all respects.

DECREE

This court recently in Cole v. Allstate Insurance Co., 07-1046, p. 2-3 (La.App.

3 Cir. 6/5/08), 987 So.2d 310, 312-13, writ denied, 08-1463 (La. 10/31/08), 994

So.2d 535, discussed the appellate standard of review for factual determinations as

follows:

The standard of appellate review of a trial court’s factual findings
is well settled and has long been established in this state. 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).
Earls v. McDowell, 07-17 (La.App. 5 Cir. 5/15/07), 960 So.2d 242,
citing Stobart v. State through Dep’t of Transp. and Dev., 617 So.2d
880, 882 (La.1993). On appeal, the issue to be resolved is not whether
the trier of fact was right or wrong, but whether the factfinder’s
conclusion was a reasonable one. Id. Reasonable evaluations of
credibility and reasonable inferences of fact should not be disturbed
upon review where conflict exists in the testimony. Earls, supra, citing,
Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

An appellate court cannot shirk its duty of appellate review of
fact by simply deferring to a trial court’s factual determinations because
its reasons for judgment are couched in terms of a credibility call.
Earls, supra, citing, Rogers v. City of Baton Rouge, 04-1001 (La.App.
1st Cir. 6/29/05), 916 So.2d 1099, 1104, writ denied, 05-2022 (La.
2/3/06), 922 So.2d 1187. This Court has a constitutional responsibility
to review the entire record and to determine whether, as a whole, it
supports the judgment rendered by the trial court. Earls, supra, citing,
LSA-Const. Art. 5, section 10(B); Ferrell v. Fireman’s Fund Ins. Co.,
94-1252 (La.2/20/95), 650 So.2d 742.

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Proof by a preponderance of the evidence is defined as taking the
evidence as a whole, the fact to be proved is more probable than not.
Earls, supra, citing, Fuller v. Wal-Mart Stores, Inc., 519 So.2d 366
(La.App. 2nd Cir.1988). Uncontroverted evidence should be taken as
true to establish a fact for which it is offered absent any circumstances
in the record casting suspicion as to the reliability of this evidence and
sound reasons for its rejection. Id.

Boxie v. Smith-Ruffin, 07-264, pp. 3-4 (La.App. 5 Cir. 2/6/08), 979
So.2d 539, 545.

Because general damages are inherently speculative in nature and cannot be

fixed with mathematical certainty, the law grants the factfinder much discretion in

their assessment. Youn v. Mar. Overseas Corp., 623 So.2d 1257 (La.1993), cert.

denied, 510 U.S. 1114, 114 S.Ct. 1059 (1994). Our role, as the reviewing court, is

not to decide what we may consider to be an appropriate award, but rather to

determine “whether the award of the trial court can be reasonably supported by the

evidence and justifiable inferences from the evidence before it.” Bitoun v. Landry,

302 So.2d 278, 279 (La.1974). The adequacy of the award must be determined by

the facts or circumstances particular to the case under consideration. Youn, 510 U.S.

1114. Only after finding an abuse of that broad discretion, based on the record, can

we disturb the award made by the trial court. Coco v. Winston Indus., Inc., 341 So.2d

332 (La.1976).

At oral argument on this matter, State Farm conceded the $35,000.00 award

for past pain and suffering was warranted and limited its argument solely to the

award for future pain and suffering. State Farm maintained there was no evidence

in the record to justify the trial court’s award of $15,000.00 in future pain and

suffering. Specifically, it contends there was no medical evidence or testimony to

suggest more probable than not that Plaintiff would suffer any future pain and

suffering.

State Farm correctly notes that Dr. Rush’s deposition testimony concluded

that injuries to the “SI triad’ of muscles typically resolve within twelve weeks.

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However, Dr. Rush noted there are situations where this is not the case and the

problems can linger for a much longer period of time. Dr. Rush testified in Plaintiff’s

case, the injury to the SI triad was a chronic condition. The following testimony was

elicited on this point:

Q. Doctor, still we’re almost a year post-accident and he’s still having
complaints regarding the SI area. Would you say it’s chronic in nature?

A. I would think so. Anything over six months would be chronic. But
you have to maintain those things. You learn your exercises. You learn
how to maintain. You just may have a chronic right SI. Just learn how
to live with it, and if it hurts, I know what to do.

State Farm also dismissed Dr. Rush’s concerns over a possible herniated disc

at L5-S1, stating it was testified by Dr. Rush that this herniation could have been

caused by a degenerative condition. However, Dr. Rush clearly stated, at a

minimum, the herniation likely was aggravated by the accident. State Farm also

maintained Dr. Rush testified the disc herniation at L5-S1 was not a “pain

generator.” However, Dr. Rush noted Plaintiff was experiencing radiculopathy in

his hip, which radiated down his legs all the way to his toes. Dr. Rush stated “[d]ue

to his leg going numb and such, I went ahead and ordered an MRI of the lumbar

spine.” Dr. Rush also, contrary to State Farm’s assertions, could not rule out the disc

herniation being a pain generator, as the following exchange demonstrates:

A. . . . Sometimes you can find a herniation that’s not the pain
generator, it could be SI piriformis causing the radiculopathy, and
believe it or not, I have seen discs operated on when they weren’t the
pain generator. So I’m just saying doing fifty years of this, you see al
lot of stuff.

Q. In this particular case, Doctor, what’s your opinion as to the pain
generator for Mr. Alexander?

A. I think it’s more SI, but he does have a disc, and I can’t say forever
that it’s not [the pain generator]. . .

So the exam looks more SI piriformis than it does lumbar
radiculopathy, although he’s got an MRI that could justify maybe some
lumbar component.

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Thus, we find no merit to State Farm’s contention that the lumbar disc was dismissed

by Dr. Rush as unproblematic. Dr. Rush’s testimony establishes a disc component

to Plaintiff’s pain.

We find the record provides reasonable support for the trial court’s award of

$15,000.00 for future pain and suffering. Dr. Rush’s testimony provided a medical

basis to support Plaintiff’s complaints of pain he testified he was still experiencing

at the time of the trial. Accordingly, we affirm the trial court’s judgment.

DECREE

For the foregoing reasons, the judgment of the lower court is affirmed in all

respects. Costs of this appeal are assessed to defendant-appellant, State Farm Mutual

Automotive Insurance Company.

AFFIRMED.

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

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