Kayla Landry v. State Farm Automobile Ins. Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

21-790

KAYLA LANDRY

VERSUS

STATE FARM AUTOMOBILE INSURANCE COMPANY, ET AL.

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. C-327-18
HONORABLE JULES D. EDWARDS, III, DISTRICT JUDGE PRO TEMPORE

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JOHN E. CONERY
JUDGE

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Court composed of John E. Conery, Van H. Kyzar, and Sharon Darville Wilson,
Judges.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

Todd M. Ammons
Darrell G. Guidry, Jr.
Stockwell, Sievert, Vicellio, Clements, & Shaddock, LLP
Post Office Box 2900
Lake Charles, Louisiana 70602
(337) 436-9491
COUNSEL FOR DEFENDANT/APPELLEE:
State Farm Mutual Automobile Insurance Company, in its capacity as
UM Insurer for Kayla Henry

Justin T. Morales
Jordyn A. Goody
The Townsley Law Firm, LLP
3102 Enterprise Boulevard
Lake Charles, Louisiana 70601
(337) 478-1400
COUNSEL FOR PLAINTIFF/APPELLANT:
Kayla Landry

Kyle M. Beasley
Christopher J. Rinn
Plauché, Smith & Nieset, LLC
Post Office Drawer 1705
Lake Charles, Louisiana 70602
(337) 436-0522
COUNSEL FOR DEFENDANT/APPELLEE:
State Farm Automobile Insurance Company
Brad David Racca
Grant Alan Racca
Kendal Henry

CONERY, Judge.

By this appeal, Plaintiff Kayla Landry questions apportionment of fault and

causation of injury related to a May 25, 2017 automobile collision occurring in

Jennings, Louisiana at the intersection of Highway 26 and Interstate Drive.

Following a bench trial, the trial court determined Plaintiff to be 25% at fault due to

her failure to exercise caution in proceeding into the intersection under the yellow

light facing her. The trial court assessed the remaining 75% of fault to Defendant

Grant Racca (Grant), due to his failure to yield the right-of-way to Plaintiff as he

executed a left turn, colliding into her vehicle. Despite its apportionment of fault,

the trial court determined that Plaintiff failed to prove that the collision caused

Plaintiff’s injury, a torn right rotator cuff. Plaintiff appeals. For the following

reasons, we affirm in part, reverse in part, and render.

FACTS AND PROCEDURAL HISTORY

At the time of the accident at issue, Plaintiff was driving her Chevy Malibu

on Highway 26 in Jennings, Louisiana. The Uniform Motor Vehicle Traffic Crash

Report, prepared by Officer Brooke Rice 1 of the Jennings Police Department,

indicates that Plaintiff “advised that she went under the YELLOW LIGHT; and that

is when the other vehicle collided with her driver[’]s side.” In her contemporaneous,

handwritten report affixed to the Crash Report, Plaintiff explained: “I Kayla Landry

was driving on Hwy 26 going under the light and a white truck hit my driver[’s]

side[.] [H]e was coming north on 26.”

Approximately five days after the accident, Plaintiff amended her statement

after a friend urged her to provide more detail. Plaintiff explained therein:

1
At the time of trial, Officer Rice used the surname of Duhon. We refer to her as Officer
Rice, the name reflected on the Crash Report.

I Kayla Landry was driving on HWY 26 traveling south in the
right lane. I was going under the light when it turned yellow. As I was
going through the light I looked over to my left and saw this white truck
making a U turn (which is illegal)[.] I swerved to the right to try to
avoid him hitting me. He came across and hit me on the driver[’]s front
side of my car.

The “white truck” referenced by Plaintiff was a Ford F-350 driven by Grant

and owned by his step-father, Brandon Henry (Mr. Henry). Officer Rice explained

in the Crash Report that Grant, sixteen years old at the time of the accident, “stated

he was driving North on Highway 26 when he attempted to make a left hand turn.

Mr. Racca advised that the light was GREEN when he began to turn left.” Grant

acknowledged at trial that although the light facing him was green, he did not have

a green turn arrow. Grant explained that he followed behind a left turning truck and

trailer into the intersection and that he felt he could safely do so as the southbound

cars in the lanes adjacent to that of Plaintiff had stopped.

Plaintiff stated that upon entering the intersection and seeing Grant’s

approaching truck, she attempted to swerve to the right. She was unable to avoid

the crash, however. After she was struck by Grant’s truck, Plaintiff’s vehicle “shook”

and she heard a “loud noise.” The Crash Report indicates that Plaintiff’s vehicle

sustained damage to its front driver’s side and had to be towed from the scene,

whereas Grant’s truck sustained only “minor damage on the front push bumper.”

Plaintiff did not report immediate injury to Officer Rice at the time of the

crash, as reflected in the Crash Report. Neither did Plaintiff report injury five days

later when interviewed by the adjuster for State Farm Mutual Automobile Insurance

Company (State Farm), the UM provider for Plaintiff as well as the liability insurer

of the truck driven by Grant and owned by his step-father, Mr. Henry. When asked

whether she was “injured at all[,]” Plaintiff responded, “No ma’am.” Plaintiff later

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explained however, that she felt “shook up” and “sore” from the accident and did

not immediately appreciate that the pain she felt following the accident was an

“injury” per the inquiry of either Officer Rice, at the scene, or the State Farm adjuster.

Plaintiff testified that on returning home after the accident she took Tylenol and “did

heat and cold” on her shoulder. Plaintiff’s friend, Mistie Landry (Mistie), explained

that she provided Plaintiff with a ride from the accident scene and that Plaintiff

appeared “kind of shooken up[.]” Mistie reported that Plaintiff indicated her arm

was “hurting” and “bothering” her that night.

Plaintiff reported to her job at Butchie’s Corner, a convenience store, the day

following the accident. Plaintiff testified, however, that she needed assistance in

performing her work tasks, which included working the cash register, stocking the

coolers, and performing food service-related tasks. Kimberly Lessigne, Plaintiff’s

long-time friend and co-worker at Butchie’s Corner, confirmed that she learned of

Plaintiff’s accident the next time she worked with Plaintiff at the store. Plaintiff

reported pain and difficulty lifting during the course of their work together. Ms.

Lessigne testified that given Plaintiff’s difficulty in lifting her right arm, Plaintiff

would either perform tasks with her left hand or “switch jobs” to something that she

could perform more easily.

Plaintiff continued working and, according to her testimony, continued to

experience increasing pain upon activity, particularly lifting. In July 2017, two-

months post-accident, Plaintiff’s pain symptoms continued and she sought treatment

from Dr. Joel Conner, a chiropractor. Plaintiff attributed her pain to the accident and

reported that her shoulder hurt when she would “pick up something heavy[.]” She

explained that she experienced pain daily, that her pain level was a 5 on a scale of

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10 at the time of the visit, and that it had been a 10 out of 10 on the night of the

accident.

According to Dr. Connor, he saw Plaintiff for less than ten minutes and told

her that he was unable to help given what he felt was a more serious condition than

he could “take care of.” He recommended that she see an orthopedist. Dr. Connor

stated in his deposition that he did not perform range of motion tests with Plaintiff

because she was holding her arm and crying. Given that history, Dr. Connor

attributed Plaintiff’s injury to the car accident.

Five months post-accident, on October 26, 2017, Plaintiff visited Dr. Paul

Fenn, an orthopedist with whom she had treated for prior injuries. Plaintiff reported

that she experienced right shoulder pain and weakness on lifting since the accident.

A January 2018 arthrogram revealed a “massive” tear of the right rotator cuff. Dr.

Fenn explained in his deposition that although the tear was large, he would attempt

surgical repair of the shoulder. Further, in his deposition, Dr. Fenn confirmed on

questioning by counsel for State Farm that “[h]olding onto a steering wheel driving

down the highway,” was not a “mechanism of injury[,]” but that the accident was a

“reasonable mechanism” of injury. Dr. Fenn explained more fully that:

Holding onto a steering wheel driving down the highway, no. But if
there’s a motor vehicle collision, I have given up trying to opine on
what happens to a body in the middle of a collision. So assuming
there’s a hard enough collision to do some damage to the vehicle, sure,
that’s a reasonable mechanism.

Dr. Michael Duval, an orthopedic surgeon, examined Plaintiff and rendered a

second medical opinion on behalf of State Farm on July 2, 2019. Dr. Duval opined

in his deposition that the size of the tear indicated that it was caused by a “significant,

traumatic event” and, in his second medical opinion report, that it was “difficult to

conceptualize a mechanism of injury to cause this simply holding onto a steering

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wheel.” Dr. Duval noted that Plaintiff explained to him that she had previously

injured her left shoulder in a fall but denied having harmed her right shoulder at that

time.

Dr. Duval explained that such a tear would have caused an “onset of severe

pain and the inability to use one’s arm or lift it at all.” Dr. Duval testified in his

deposition that although he did not dispute Plaintiff’s history, he thought it was more

likely than not that the subject accident did not cause the tear shown on the MRI.

Dr. Duval found the injury to be so profound that he felt that the shoulder could not

be reconstructed and that given her young age, 2 replacement would not be

recommended.

In his own deposition, Dr. Fenn generally agreed with Dr. Duval regarding

the severe pain and inability to use the arm normally associated with a massive tear

to the rotator cuff. He further confirmed that normally it was unlikely that someone

with the identified injury would have reported no injury at all five days after such an

impact. However, Dr. Fenn substantially changed that statement during his trial

testimony when he discovered for the first time that Plaintiff’s diabetic condition

had reached an advanced state, as reflected below in the discussion regarding

causation of injury.

Seeking both damages and medical care, particularly with regard to surgical

repair of her right shoulder, Plaintiff filed suit on May 22, 2018, naming Grant’s

parents, Brad Racca and Kendall Henry as defendants. Plaintiff also named State

Farm Mutual Automobile Insurance Company as a defendant, both in its capacity as

the liability insurer of Kendal Henry, Brad Racca and/or Grant Racca and in its

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Plaintiff was 33 years of age at the time of the May 25, 2017 accident.

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capacity as Plaintiff’s own UM insurer. Plaintiff later amended the petition after

Grant attained majority and named him as a defendant in his own right.

Defendants questioned Plaintiff’s own fault in the accident given the

uncertainty pertaining to the stage of the yellow light when Plaintiff proceeded

through the intersection. Defendants further denied that Plaintiff’s torn right rotator

cuff was caused by the accident, noting both her delay in seeking treatment and her

attribution of causation to having her arm on the steering wheel at the time of the

crash.

In August 2021, the parties entered into a joint stipulation for the “Gasquet-

style” release3 of Grant and his parents, with Plaintiff preserving the right to pursue

recovery from State Farm for the remaining bodily injury limits that the State Farm

policy provided coverage for the Racca/Henry defendants, up to $25,000.00, and for

the UM limits of Plaintiff’s UM policy, $15,000.00.4

3
In Gasquet v. Commercial Union Insurance Company, 391 So.2d 466 (La.App. 4 Cir.
1980), writs denied, 396 So.2d 921, 922 (La.1981), the fourth circuit recognized that a plaintiff
may release a defendant but reserve his or her rights against an insurance company.
4
The parties entered into a Joint Stipulation providing as follows regarding the amount in
controversy:

2. Plaintiff and Defendants stipulate that pursuant to a “Gasquet-style”
release executed by Plaintiff Kayla Landry on June 13, 2019, Plaintiff has no right
to recover any damages against the individuals Kendal Henry, Brad David Racca,
and Grant Racca, as a result of, or in any way arising from, the motor vehicle
accident made the basis of this litigation which occurred on May 25, 2017.
However, Plaintiff does have the ability to recover up to the bodily injury limits of
$25,000, from State Farm as the remaining liability insurer of Kendal Henry, Brad
Racca and Grant Racca, which limits are provided by the State Farm Policy number
181-5520-B11-18E, and up to $15,000 from State Farm as the
uninsured/underinsured motorist carrier for Plaintiff provided by State Farm Policy
number 293728918.

3. Plaintiff and Defendants stipulate that pursuant to a written
stipulation executed by Plaintiff Kayla Landry on April 11, 2019, and the Plaintiff’s
Motion and Order for Bench Trial filed on January 5, 2021, that the total amount in
controversy in this litigation does not exceed $50,000, exclusive of interest and
costs.

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The matter proceeded to an October 14, 2021 bench trial. At the beginning of

trial, the trial court recognized the parties’ Joint Stipulation which, in addition to

reflecting the limitation on the amount in controversy, acknowledged State Farm’s

lack of objection to the “admissibility and introduction” into evidence of the reports

of Dr. Aaron Wolfson, an expert in vocational rehabilitation and life care planning,

and of Dr. Charles Bettinger, an expert economist.

Dr. Wolfson’s report reflects the surgery recommended by Dr. Fenn as well

as associated follow-up care associated with Plaintiff’s projected recovery costs. Dr.

Bettinger’s report of “Economic losses from future losses from medical care for Ms.

Kayla Landry” reflects a “present value” of the costs estimated by Dr. Wolfson in

the total amount of $510,250.00. As for other damages, Plaintiff presented a

Medical Bill Index reflecting that she had incurred past medical expenses associated

with the accident in the amount of $14,357.11 and prayed for $100,000.00 in general

damages. However, due to the pre-trial stipulation, Plaintiff limited her damages to

a total of $40,000.00, the combined limits of the State Farm policies in question.

The trial court rendered extensive written reasons, finding as follows with

regard to the movements of the motorists:

On May 25, 2017, Kayla Landry was traveling southbound on Highway
26 in Jennings, Louisiana and driving a 2011 Chevrolet Malibu. Grant
Racca was traveling northbound on that same highway in Jennings,
Louisiana and driving a 2015 Ford F-350. Grant Racca approached the
intersection of Highway 26 and Holiday Drive in Jennings. The
intersection was controlled by a traffic light. Grant Racca made a left-
hand turn at the intersection with the green circle light signal. Grant
did not have the green arrow.

Grant Racca was traveling northbound on Highway 26 and Kayla
Landry was traveling southbound on Highway 26, and Grant stopped
short of the intersection behind a truck that towed a trailer. When Grant
Racca observed the truck and trailer move forward and turn left in front
of him, he started to make the left turn. Approximately at the same time,
the vehicle driven by Kayla Landry approached the intersection and

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proceeded through the intersection while a yellow light was displayed.
Both drivers attempted to swerve but were unable to avoid the collision.
Grant did not yield the roadway to Kayla Landry at the Highway 26 and
Holiday Drive intersection, and he collided with the 2011 Chevrolet
Malibu operated by Kayla Landry.

As Grant Racca approached the intersection of this crash, he
observed the traffic control device presented an illuminated green circle
light. Grant Racca did not have the green arrow prior to the crash.
Therefore, he should have yielded the right of way to Kayla Landry at
the intersection before he attempted to make his right-hand turn. His
failure to do so was negligent and is a fault that caused this collision,
and he is therefore liable for the damages that resulted from this crash.

As for Plaintiff’s comparative fault, the trial court stated:

Kayla Landry’s failure to exercise caution in response to the
yellow light was also fault, and because that fault contributed to Grant
Racca’s fault in the causation of this collision, it amounted to
comparative negligence in the amount of 25 percent (25%). Grant
Racca’s proportion of the fault that caused this collision was 75 percent
(75%).

Finally, in concluding that Plaintiff failed to prove causation of her alleged injuries,

the trial court remarked:

Kayla Landry is not an accurate historian. Kayla Landry has
sustained a torn rotator cuff and superior glenoid labrum lesion in her
right shoulder. Her failure to accept the surgical repair of this condition
has caused this injury to increase in severity.

....

Kayla Landry’s treating physician[s], Dr. Paul Fenn, Dr. Joel
Conner, and Dr. Lawrence Weber[5] have testified that this May 25,

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Plaintiff visited Dr. Lawrence Weber for her own choice of orthopedic Second Medical
Opinion on June 15, 2021, four months before trial. Dr. Weber’s resulting report indicated that
Plaintiff continued to complain of “ongoing pain and disability to the right shoulder since her
motor vehicle accident without prior right shoulder pain.” Plaintiff indicated to Dr. Weber that
she “has right shoulder pain described as a dull ache at rest and becomes a sharp shooting pain
with any resisted shoulder flexion, extension, and/or abduction.” Although Plaintiff described her
pain to Dr. Weber as “a 0 out of 10 with rest[,]” her pain would “reach up to a level of 8 out of 10
with the described resisted motion[,]” and would be “8 out of 10 with any overhead activity and/or
weightbearing.” Dr. Weber agreed with Dr. Fenn’s recommended treatment.

Dr. Weber’s deposition was also introduced into evidence, as referenced by the trial court
in its ruling on the issue of causation. When questioned whether he was “able to reach any
conclusion as to whether or not … Ms. Landry sustained any shoulder - - right shoulder injury in
this May 25, 2017 crash[,]” Dr. Weber replied: “Yes. I believe based on everything that you

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2017, motor vehicle crash caused injury to Ms. Landry’s right shoulder.
Dr. Paul Fenn recommends Ms. Landry undergo arthroscopic surgery
to repair the torn rotator cuff and labral tearing revealed by the images
produced by Southwest Louisiana Imaging on January 4, 2018.

....

However, the testimony regarding the mechanism of injury is
speculative and while within the realm of the possible, it was not proven
by a preponderance of the evidence. Ms. Landry reported she had no
injuries on the date of this collision and did so again five days later.
Subsequently, she reported that she did injure her right shoulder in this
collision.

Kayla Landry’s treating physician[s], Dr. Paul Fenn, Dr. Joel
Conner, and Dr. Lawrence Weber, all base their opinions as to
causation on the history Kayla Landry reported to them. Dr. Paul Fenn
testified Ms. Landry had a preexisting diabetic condition that caused
nerve damage that impeded her capacity to feel pain. He believed she
is truthful, and this diabetic condition explains her inconsistent reports
of injury. However, he also testified that the kind of injuries that Ms.
Landry sustained often have an unknown etiology.

Unfortunately, for the plaintiff, this court finds her multiple and
inconsistent reports of injury are bizarre and unreconcilable, and as a
result she failed to prove that her current condition was caused by the
defendant’s actions.

Accordingly, the resulting judgment reflected the trial court’s apportionment

of 25% fault to Plaintiff due to her failure to exercise caution in response to the

yellow light. The trial court rejected Plaintiff’s claim for damages due to its finding

that Plaintiff failed to prove causation. The trial court assessed all costs to Plaintiff.

Given its determination that Plaintiff failed to prove medical causation for her

alleged injuries, the trial court rendered judgment determining that “neither Grant

mentioned, plus my questions to her about the timeline of the accident and her symptoms, that it’s
more probable than not that the injury that she has was from the car accident of 2017.” In
subsequent questioning, Dr. Weber acknowledged his “opinion of medical causation” was based
on Plaintiff’s history as reported by her. He credited much of Plaintiff’s failure to recall a more
specific mechanism of injury to the trauma of the event. When asked about Plaintiff’s failure to
report injury to State Farm five days after the accident, Dr. Weber stated: “What I’m saying is it’s
more - - in my mind, it’s more probable than not that she sustained a right shoulder injury in the
car accident, and how people want to put everything together to make that happen is up to them.”

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Racca, [n]or any of these defendants are obligated to pay any money to Kayla

Landry.” The trial court assessed costs to Plaintiff.

ASSIGNMENTS OF ERROR

Plaintiff appeals, assigning the following as error:

1. The trial court committed legal error by misinterpreting the clear
language of La. R.S. 32:232 and allocating twenty-five percent
of fault to Plaintiff, where there is no evidence that Plaintiff
committed any violation of the statute;

2. Alternatively, the trial court was clearly wrong in finding any
fault on the part of Plaintiff, where there is no reasonable, factual
basis for such finding and the record shows that that finding is
clearly wrong in light of the fact that Defendant failed to
discharge his presumed liability as a left-turning motorist; and

3. The trial court was manifestly erroneous in ignoring ample
objective medical evidence that Plaintiff’s right shoulder rotator
cuff tear was caused by the May 25, 2017, crash; and

4. The trial court was in error in taxing costs to Plaintiff.

LAW AND DISCUSSION

Apportionment of Fault

In her first two assignments of error, Plaintiff argues that the trial court erred

in assessing her with any fault in the accident. She contends that the error stems

from the trial court’s “misapplication” of La.R.S. 32:232, which relates to traffic

control signals. She suggests that the trial court’s reliance thereon in assessing her

with any fault constituted legal error so as to require this court to perform a de novo

review of fault on appeal. Plaintiff alternatively asserts that the trial court manifestly

erred in its assessment of 25% fault to her. Following review, we find the trial

judge’s ruling was within his discretion and is not manifestly erroneous.

An assessment of fault, or lack thereof, is reviewed pursuant to the manifest

error standard of review. See, e.g., Hankton v. State, 20-462 (La. 12/11/20), 315

10

So.3d 1278. The supreme court has additionally explained that a trier of fact is owed

a degree of deference in its allocation of fault as a finding of a percentage of fault is

a factual determination. Foley v. Entergy La., Inc., 06-983 (La. 11/29/06), 946 So.2d

144 (quoting Duncan v. Kansas City So. Ry. Co., 00-66, p. 10 (La. 10/30/00), 773

So.2d 670, 680). “‘Therefore, an appellate should only disturb the trier of fact’s

allocation of fault when it is clearly wrong or manifestly erroneous.’” Id. at 165

(quoting Duncan, 773 So.2d at 680). See also Hebert v. Rapides Par. Police Jury,

06-2001 (La. 4/11/07), 974 So.2d 635.

In assessing whether a trial court was clearly wrong in allocating fault, the

appellate court is “guided” by the factors of Watson v. State Farm Fire & Cas. Ins.

Co., 469 So.2d 967 (La.1985). Foley, 946 so.2d 144. Those factors, the supreme

court explained, may include:

(1) whether the conduct resulted from inadvertence or involved an
awareness of the danger, (2) how great a risk was created by the conduct,
(3) the significance of what was sought by the conduct, (4) the
capacities of the actor, whether superior or inferior, and (5) any
extenuating circumstances which might require the actor to proceed in
haste, without proper thought. And, of course, as evidenced by
concepts such as last clear chance, the relationship between the
fault/negligent conduct and the harm to the plaintiff are considerations
in determining the relative fault of the parties.

Watson, 469 So.2d at 974. In the event the appellate court determines that the

apportionment of fault is clearly wrong, it must then lower or raise it to the

highest/lowest point which is reasonably within the trial court’s discretion. Id.

Plaintiff argues that “the record is devoid of any facts or evidence”

establishing that she was “negligent in any way.” In particular, she asserts that the

trial court erred in misapplying La.R.S. 32:232, as it applies to traffic signals, and

maintains her trial position that the traffic signal facing her was green when she

entered the intersection and that it turned yellow while she was in the intersection.

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Given that circumstance—and the unquestioned fact that Grant made a left turn

under the green circle light—she contends that full fault should be apportioned to

Grant as he had a duty to yield the right-of-way to her. Plaintiff pointedly questions

the trial court’s determination that she failed to exercise “caution in response to the

yellow light” and maintains that such a duty is not required by La.R.S. 32:232(2)(a).

However, despite the trial court’s specific referral to an exercise of caution in

response to a yellow traffic signal, it is important to remember appellate courts

review judgments, not a trial court’s reasons for judgment. See Wooley v. Lucksinger,

09-571 (La. 4/1/11), 61 So.3d 507.

Further, “[a]ll motorists owe a general duty to observe what should be

observed.” Bernard v. BFI Waste Serv., LLC, 20-636, p. 8 (La.App. 3 Cir. 7/21/21),

325 So.3d 415, 423 (citing Lopez v. Cosey, 16-812, 16-813 (La.App. 1 Cir. 2/17/17),

214 So.3d 18), writ denied, 21-1271 (La. 11/17/21), 327 So.3d 995. Pursuant to

La.R.S. 32:58, “[a] motorist has a duty to drive in a careful and prudent manner, so

as not to endanger the life, limb, or property of any person.” Id. “Additional duties

also arise depending on the motorist’s movements on the roadway in relation to other

vehicles.” Id. at 423-24 (citing ES v. Thomas, 17-1213 (La.App. 1 Cir. 5/31/19),

278 So.3d 982).

In this case, the “additional duties” referenced in Bernard are reflected, in part,

by La.R.S. 32:232, which relates to traffic-control signals and provides, in pertinent

part:

[1](a) Vehicular traffic facing a circular green signal may
proceed straight through or turn right or left unless a sign at such place
prohibits either such turn. But vehicular traffic, including vehicles
turning right or left, shall stop and yield the right-of-way to other
vehicles and to pedestrians lawfully within the intersection or an
adjacent crosswalk at the time such signal is exhibited.

12

....

[2](a) Vehicular traffic facing a steady yellow signal alone is
thereby warned that the related green signal is being terminated or that
a red signal will be exhibited immediately thereafter and such vehicular
traffic shall not enter the intersection when the red signal is exhibited.

(Emphasis added.)

Importantly, Grant’s failure to yield the right-of-way is unquestioned,

resulting in the obvious assessment of the lion’s share of the fault against him. See,

e.g., La.R.S. 32:232; La.R.S. 32:122 (“The driver of a vehicle within an intersection

intending to turn to the left shall yield the right of way to all vehicles approaching

from the opposite direction which are within the intersection or so close thereto as

to constitute an immediate hazard.”) State Farm does not challenge that finding, and

we do not revisit it here.

Further, Plaintiff correctly identifies that La.R.S. 32:232(2)(a) does not, alone,

point to her negligence in proceeding through the intersection under a yellow light,

whether it was yellow upon entering or whether it turned yellow after she entered

the intersection. It should not go unrecognized, however, that by its choice of

wording in La.R.S. 32:232(2)(a), the legislature “warned” drivers facing a yellow

light that the red signal light is imminent.

Additionally, and in contravention of Plaintiff’s claim that the trial court

legally erred in finding her at fault to any degree, La.R.S. 32:232(2)(a)’s “warning”

goes hand-in-glove with a motorist’s general obligation to “observe what should be

observed” and “to drive in a careful and prudent manner, so as not to endanger life,

limb, or property of any person.” Bernard, 325 So.3d at 423.

Furthermore,

[a]ll motorists on Louisiana highways must drive with due regard for
the traffic on the highway and have an affirmative duty not to drive

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faster than is reasonable and prudent under the conditions and potential
hazards existing at the time. La.R.S. 32:64(A) 6 [.] Thus,
notwithstanding the presumption of negligence attributed to a left-
turning driver, a favored motorist can still be assessed with
comparative fault if her substandard conduct contributed to the
cause of the accident.

Baker v. State Farm Mut. Auto. Ins. Co., 49,468, pp. 6-7 (La.App. 2 Cir. 1/21/15),

162 So.3d 405, 410 (emphasis added) (case citations omitted).

For instance, in Leonard v. Lee, 49,669 (La.App. 2 Cir. 4/29/15), 165 So.3d

1083, the second circuit set aside a trial court’s assessment of 100% fault in an

intersectional collision to a left-turning driver and reduced that fault by 50%. It

allocated the remaining fault to the oncoming, favored driver who entered the

intersection under a green light. The panel explained that “[b]oth drivers should

have seen each other; both drivers could have easily avoided this wreck.” Id. at 1092.

The reasoning of Leonard is likewise applicable in review of the trial court’s

allocation of 25% of the fault to Plaintiff. That assessment was made following the

trial court’s viewing of surveillance footage of the accident. Although the

surveillance footage shows Plaintiff’s vehicle only after it enters the intersection and

does not show the southbound traffic lanes adjacent to Plaintiff, the trial court heard

Grant explain that other southbound vehicles had stopped at the light, and that a

truck and trailer in front of him had executed a left turn across the southbound lanes

of traffic. Although Grant saw Plaintiff’s vehicle “a little further still behind the cars

that were stopped at the stoplight[,]” he felt that he could safely complete his left

6
Louisiana Revised Statutes La.R.S. 32:64(A) provides:

No person shall drive a vehicle on the highway within this state at a speed
greater than is reasonable and prudent under the conditions and potential hazards
then existing, having due regard for the traffic on, and the surface and width of, the
highway, and the condition of the weather, and in no event at a speed in excess of
the maximum speeds established by this Chapter or regulation of the department
made pursuant thereto.

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turn because “the other vehicles were stopped” and that he thought Plaintiff would

stop as well.

Plaintiff obviously did not stop, and the accident followed. While Grant

acknowledged that he proceeded under the green circle light, the remaining

circumstances as explained by him support the trial court’s finding. In particular,

Plaintiff proceeded into the intersection without any indication in the record that she

slowed her vehicle when she encountered the left turning truck and trailer that

immediately preceded Grant into the intersection. Plaintiff instead gave no

indication of having seen the truck and trailer, nor did she see Grant’s truck until she

was inside of the intersection, explaining that:

I was heading south going through - - through the intersection,
and the light had turned yellow, and I just kept going. And then all of
a sudden, out of the corner of my eye, I seen something coming, a big
white thing, and it was a truck, and it hit me. And then it - - we - - we
both veered off into the Shop Rite.

On subsequent questioning by the trial court, Plaintiff stated that: “As I was going

through the intersection, the light turned yellow, and I seen at the corner of my eye

something was coming.” As in Leonard, 165 So.3d at 1093, “[b]oth drivers should

have seen each other; both drivers could have easily avoided this wreck.” In the

present situation, Plaintiff failed to slow her speed in entering the intersection in

response to the changing yellow light, the left turning truck and trailer, and/or

Grant’s entry into the intersection. Those circumstances support the trial court’s

ruling.

Finally, we note that Plaintiff references Thompson v. Cagle, 15-416 (La.App.

3 Cir. 11/25/15) (unpublished opinion)(2015 WL 7573234), writ denied, 15-2358

(La. 2/19/16), 187 So.3d 461, in support of her argument that she should be assessed

with no fault as the favored motorist. Plaintiff correctly observes that the panel in

15

Thompson explained in part that “[a] favored motorist travelling through an

intersection controlled by a traffic signal is not obligated to look to his left or right

before entering the intersection, but must maintain general observation of a

controlled intersection.” Id. at 6. Furthermore, a “favored motorist will be held

accountable for an accident only if he could have avoided the accident with the

exercise of the slightest degree of care and fails to do so.” Id. (citing Bernard, 735

So.2d 804).

In Thompson, however, the panel affirmed a jury’s allocation of 100% fault to

a left turning motorist when the favored driver proceeded into the intersection

without seeing the left-turning vehicle until after impact. The panel remarked,

however, that the accident occurred at night and that the record did not contain

evidence “that requires a finding that, under the circumstances” the favored driver

“should have been able to see” the left-turning motorist “prior to impact, or that he

could have taken steps to avoid the accident but failed to do so.” Id. at 7.

Considering those circumstances, the panel explained, the jury’s finding was

“reasonably supported by the record.” Id. Plaintiff in this case, however, asks for a

reversal of the trial court’s finding. As we have found that the facts and

circumstances of this case support the trial court’s apportionment of fault, we find

that the trial court’s findings of fact, application of the law, and apportionment of

fault are within his discretion.

Causation of Injury

Plaintiff further challenges the trial court’s determination that she failed to

prove that her torn right rotator cuff was caused by the accident. She contends that

although the trial court acknowledged her injury “and its acceptance of the testimony

of her treating physicians that this crash caused her rotator cuff injury, the trial court

16

improperly gave undue consideration” to her “credibility over that of the unrefuted,

objective medical evidence and testimony presented.” As explained below, we find

merit in this position. Plaintiff’s testimony, witnesses, and medical evidence,

especially as interpretated by Dr. Fenn at trial, reveals clear error in the trial court’s

denial of damages.

As a starting point, it is clear that Plaintiff was required to bear the “‘burden

of proving a causal relationship between the injury sustained and the accident which

caused the injury[,]’” and to do so by a preponderance of the evidence. Taylor v.

City of Alexandria, 19-25, p. 9 (La.App. 3 Cir. 6/5/19), 274 So.3d 206, 214 (quoting

Maranto v. Goodyear Tire & Rubber Co., 94-2603, 94-2615, p. 3 (La. 2/20/95), 650

So.2d 757, 759). “‘The test for determining the causal relationship between the

accident and subsequent injury is whether the plaintiff proved through medical

testimony that it is more probable than not that the subsequent injuries were caused

by the accident.’” Id. (quoting Maranto, 650 So.2d at 759). Accordingly, an

appellate court considers the plaintiff’s “objective medical evidence … along with

the testimony presented at trial, to determine whether the trial court committed

manifest error” in its determination as to whether a plaintiff’s injuries were caused

by the subject accident. Taylor, 374 So.3d at 214 (emphasis added).

Given that standard, we find that the trial court manifestly erred in failing to

account for Dr. Fenn’s uncontroverted trial testimony regarding the accident’s

causation of Plaintiff’s torn rotator cuff and failure to account for the additional

medical and lay testimony supporting causation of Plaintiff’s shoulder injury to the

crash in question. The trial court’s error is especially apparent in light of the

corroborating lay witnesses as well as Dr. Conner’s medical records, which reflect

17

Plaintiff’s attribution of her shoulder pain to the accident, all discussed more fully

below.

Foundationally, it is important to note that the trial court acknowledged

Plaintiff’s injury. The trial court’s reasons, however, reflected its concern regarding

Plaintiff’s delayed reporting of her injury and pain progression to both State Farm

and to her medical providers. With that concern in mind, the trial court found that

medical testimony, namely that of treating physician Dr. Fenn and second medical

opinion provider Dr. Duval, was equivocal and speculative as to causation of

Plaintiff’s torn rotator cuff.

The trial court’s remarks as to equivocation on the issue of medical causation

was primarily based upon deposition testimony from both Dr. Fenn and Dr. Duval

indicating that a rotator cuff tear of such a magnitude as seen in Plaintiff’s MRI

should cause an immediate onset of pain and an inability to lift the arm. Moreover,

the record reflects that Plaintiff did not begin seeking medical treatment until

approximately two months after the accident and did not see her treating physician,

Dr. Fenn, until five-months post-accident.

The trial court cited Plaintiff’s delay in reporting her pain and injury in

determining that Plaintiff’s “inconsistent reports of injury are bizarre and

unreconcilable[.]” Review of the record, however, undermines that determination

and reveals that Plaintiff’s hesitation in initially reporting injury was due to her

failure to equate the “soreness” she was experiencing with the type of “injury” she

was being asked about. Plaintiff testified that when she denied “injury” to State

Farm five days after the accident, she had not yet been to the doctor and had not been

diagnosed with an injury. She felt, instead, that her condition would resolve and that

the type of soreness she was experiencing, a pain level of ten (10) out of ten (10) on

18

the evening of the accident, was typical following an automobile accident of this

severity.7

Plaintiff’s testimony regarding her immediate onset of pain post-accident was

corroborated by her friend, Mistie Landry, who was called to the accident scene and

who took Plaintiff home afterward. Mistie testified that Plaintiff appeared to be

“kind of shooken up” at the scene. When asked whether Plaintiff had “any pain from

the crash[,]” Mistie explained, “That night she said that her arm was hurting her,

but that’s all that she told me.” Mistie further stated that, after the accident, Plaintiff

“complains of her, like, arm/shoulder hurting more” and that her activities had been

curtailed. Asked if she had observed Plaintiff have issues with her right shoulder

before the crash, Mistie responded, “Not that I know of.”

On cross-examination, Mistie again testified regarding Plaintiff’s pain

immediately following the accident and explained, “She told me that night that it

was - - like, it was bothering her. It was hurting her.” When counsel for State Farm

asked Mistie whether she spoke with Plaintiff “about her right shoulder after that

first day[,]” Mistie replied, “I mean, she would tell me every once in a while that her

shoulder, you know, was bothering her or something.” Mistie explained that she did

not know why Plaintiff would have denied injury in her State Farm statement five

days after the accident or whether Plaintiff encountered difficulties at work. When

asked about Plaintiff’s abilities at the time of trial, Mistie stated that:

Like I said, she tells me that her shoulder hurts. I mean, there’s
- - like, with my - - our main thing is, like, with my son going fishing,
you know, like, she says that it bothers her; that she can’t fish with him

7
Plaintiff’s testimony and photographic evidence demonstrate that Plaintiff’s vehicle
sustained damage to the front driver’s side quarter panel and the driver’s side door, requiring
Plaintiff to exit the vehicle via the passenger’s side. The vehicle was rendered inoperable and had
to be towed from the scene.

19

like she used to, so that’s from - - you know, that’s what I know, but
that’s it.

Like Mistie, Plaintiff’s friend and co-worker Kimberly Lessigne testified

regarding Plaintiff’s reporting of pain immediately following the accident and

thereafter. Ms. Lessigne explained that she had known Plaintiff for approximately

twenty-five years as a family and personal friend. Additionally, Ms. Lessigne

worked with Plaintiff at Butchie’s Corner. When asked if she had observed Plaintiff

having right shoulder problems before the accident, Ms. Lessigne responded that she

could not recall any but that, “I remember her taking care of my kids, doing normal

things, lifting on things. I don’t really remember her having any trouble to my

knowledge.” Ms. Lessigne stated that she first learned of the subject accident within

“probably a couple of days to a week after.” Although Ms. Lessigne could not recall

“exactly when[,]” she stated that she knew “it was when [Plaintiff] next came to

work and we worked together, and she complained about her arm hurting.” When

asked whether she observed Plaintiff “have any issues with her right shoulder after

this crash[,]” Ms. Lessigne replied:

[Y]es, at work. As you know, we worked together at Butchie’s Corner,
and it’s a convenience store, so we have snow cones, and the snow
cones are on the shelves, so, you know, you’d have to reach up to
grab the snow cones, and she couldn’t do that. You have these big
'ole blocks of ice that you got to put in the machine. Our machine that
is our coke machine, you have to lift off the lid, and we don’t have self-
making ice, so you got to get bags of ice, crush them up, and then put
them into the machine. Mopping. And we have a cooler where you
have crates of Dr. Peppers, waters, drinks that you’d have to move off
of each other to restock the shelves. So I know it was hard for her.
She couldn’t - - she could barely lift her arm. So she’d either have
to do it with her left hand or she actually had to get a different job
that she could do, and then we’d switch jobs so that she didn’t have
to do that.

We also sell Hunt Brothers pizza, and so when the pizzas come
out, you know, you got to - - our - - our machine’s up, so you got to put
the cardboard underneath the pizza to take it out.

20

Q Uh – huh (yes).

Was she doing those things before the May 25th, 2017, crash?

A Yes.

Q And did she have any issue completing those tasks before this
crash?

A Nope.

Q Okay.

A No, sir.

Q And what about after?

A Yes, it was hard for her to lift her arm 'cause it hurt, so we
had to switch around our jobs to where she could do jobs that didn’t
require her lifting her arm, so - - I mean, or she’d have to do it with
her left arm. But I don’t know about you but it’s kind of hard to
do things with your left arm when you’re not used to it.

....

Q Is there any other things that you observed after this crash that
were different compared to before this crash?

A After the crash?

Q (Nods head affirmatively.)

A Just everyday things were harder. I mean, we hung out a lot.
I mean, she was with me when I found out I was expecting my first
child. So, I mean, we - - we hung out a lot.

Q Okay.

A Going to the grocery store, you know, having to carry hard bags
- - you know, plastic bags. You know, she’d have to carry on that side.
We used to be able to go to the park with my kids - - and not that we
can’t go to the park, but, I mean, you know, she wouldn’t be able to do
the same things that she did before with kids.

(Emphasis added.)

21

Plaintiff’s immediate return to work, although she claimed she did so in pain

as corroborated by Mistie Landry and Kimberly Lessigne, highlights a flawed

position maintained by State Farm and seemingly adopted by the trial court. State

Farm notes that its IME Orthopedist, Dr. Duval, and to a lesser extent Dr. Fenn,

testified in their depositions regarding the profound nature of the injury to Plaintiff’s

rotator cuff and the typical inability to lift the arm upon sustaining such an

injury. State Farm suggests that had the accident caused such an injury, Plaintiff

would have immediately evidenced such an inability.

The objective evidence, Plaintiff’s testimony, and corroborating lay testimony,

however, undermines State Farm’s attempt to draw such a bright line of causation

and, to the extent it accepted State Farm’s position, the trial court manifestly erred.

Instead, several things are patently obvious—and without contest—on this

record. First, Plaintiff had no prior complaints of injury to her right arm or shoulder

prior to this accident, which resulted in sufficient damage to the driver’s side to

render the vehicle inoperable. Additionally, as of January 2018, Plaintiff

demonstrated a massive tear to the right rotator cuff, and yet she continued to work

and function, albeit in pain and with some limitations. The record indicates that the

day following the accident, Plaintiff returned to work at Butchie’s Corner and

continued to work there for a bit. As indicated infra, Plaintiff reported pain to Ms.

Lessigne, she required assistance with lifting items, and she could not lift overhead

items, but she was able to function, albeit in pain. Plaintiff ultimately left Butchie’s

Corner for other employment. She continued to try to work to the best of her ability.

Plaintiff worked for a period at Henry’s Dairy Barn, where she was assigned

to the kitchen. Coincidentally, testimony at trial indicated that Henry’s Dairy Barn

is owned by Defendant Kendall Henry, Grant’s mother. Ms. Henry testified that

22

Plaintiff was a “great worker.”8 At the time of trial, Plaintiff was working as a food

delivery driver. Again, despite the objective evidence of Plaintiff’s torn rotator cuff,

Plaintiff was able to work, albeit in pain, including problems using her right arm.

She required assistance with certain tasks. Plaintiff confirmed that she continued to

work as best she could, but that any lifting of the arm exacerbated her symptoms.

Especially important to Dr. Fenn’s trial testimony, Ms. Henry explained that

the only health “issue” voiced by Plaintiff was related to her development of diabetic

foot ulcers. Plaintiff was absent from work in order to recover from the ulcers. While

Plaintiff’s diabetic condition was known throughout the litigation as evidenced in

her medical history, Dr. Fenn, who testified at trial after Ms. Henry, explained that

the fact that Plaintiff’s diabetic condition had progressed to the point that she

suffered from foot ulcers was important. In fact, Dr. Fenn’s trial testimony provides

the primary basis for our finding of manifest error in the trial court’s judgment

regarding medical causation.

On this point, Dr. Fenn explained in his in-person testimony at trial that he

found Ms. Henry’s information regarding the advanced state of Plaintiff’s diabetic

condition informative and the likely reason for Plaintiff’s “inconsistent” reports of

pain, despite the massive tear to the rotator cuff.

8
Ms. Henry testified that she did not see Plaintiff have difficulty completing her work tasks
during the period she was employed at Henry’s Dairy Barn. Ms. Henry explained that she had
even seen Plaintiff use her right arm to use the meat slicer. However, in his subsequent trial
testimony, Dr. Fenn discounted Ms. Henry’s testimony in that regard noting that Plaintiff’s injury
would not prevent her from “pushing and pulling” as required by the slicer, but that the problem
associated with Plaintiff’s injury “is elevating the arm and bringing it up over the head.” Dr.
Fenn’s testimony is supported by Plaintiff’s testimony that any such upward lifting immediately
exacerbated her pain.

23

When Plaintiff’s counsel inquired why Plaintiff had reported “difficulty lifting

heavy objects” to both Dr. Fenn and Dr. Conner, Dr. Fenn replied:

Well, in - - in sitting through a lot of this testimony, I understand
some of the confusion in terms of severity. I think the most significant
thing that I - - I just picked up on sitting here was the last person who
testified [Ms. Henry] - - and I - - and she actually hadn’t even told me
this - - mentioned that she had been treating for diabetic ulcers, and
what’s significant in this setting is that diabetic patients don’t feel
pain in the same way other patients do. So - - and - - and I didn’t
realize her pathology was to the extent that she’s already progressed to
having ulcerations. We didn’t discuss that. We were discussing upper
extremities.

So what I’m listening to and what I’m hearing is a patient who’s
got sort of this unclear complaint of pain, and from a - - a legal purpose
and a court purpose, we’re trying to really hone down on it, but she
- - she just can’t do that, and that’s not uncommon in diabetic
patients. Getting history from diabetics can be a challenge just in
general.

So everything that I’ve been hearing is consistent with that
now, and the icing on the cake for me was her nerves had
degenerated to the point that she can walk and get an ulcer on her
foot 'cause what happens is the patient - - the reason that happens
is 'cause you don’t feel. Diabetes is vicious. It takes out the nerves.
It takes out the vessels. So patients can have heart attacks and not know
it. They can have pain, but it can be muted. So all of that’s
consistent with what I’ve been hearing from this patient, and now
that actually kind of puts it even clearer for me from the medical
side.

So all of these complaints that she’s had makes sense, and then
as she would start to try and do certain activities - - well, if she’s got a
partial rotator cuff tear, overhead is going to be the thing that
really triggers that. And she’s been pretty consistent where
overhead activity is something that she is going to struggle with,
and so - - so from my standpoint, the history makes sense.

(Emphasis added.)

24

At the close of Dr. Fenn’s testimony, after he attributed causation of the injury

to the May 25, 2017 accident, he answered follow up questioning by Plaintiff’s

counsel:

Q Have Ms. Landry’s subjective complaints to you been
medically consistent with your objective findings?

A Yes. Again, I think her - - the - - the discrepancies in
the things that we’ve sort of been dis - - - I’ve observed being
discussed here today are consistent with obtaining history from
diabetic patients, and she’s, to the best of her ability, been honest
and just trying to explain what it is she’s feeling.

(Emphasis added.)

The trial court accounted for Dr. Fenn’s trial testimony only in passing,

cursorily stating that Dr. Fenn testified that “Ms. Landry had a preexisting diabetic

condition that caused nerve damage that impeded her capacity to feel pain.” Dr.

Fenn clearly explained that Plaintiff’s testimony and accounting of pain is consistent

with her diabetic condition. Dr. Fenn’s testimony is uncontradicted in that regard as

no other physician spoke to how Plaintiff’s condition may have affected her reaction

to her objectively identified condition.

It is noteworthy that Dr. Fenn, as Plaintiff’s treating physician, was entitled to

have his testimony afforded “‘more weight than that of a doctor who examines a

claimant for diagnostic purposes only[.]’” Jones v. Progressive Sec. Ins. Co., 16-

463, p. 6 (La.App. 3 Cir. 12/29/16), 209 So.3d 912, 918 (quoting Clark v. State Farm

Ins. Co., 520 So.2d 860, 864 (La.App. 3 Cir. 1987). Given that principle, and the

uncontradicted nature of Dr. Fenn’s testimony, as supported by the lay testimony,

we find that the trial court manifestly erred in failing to give appropriate weight to

the treating physician’s testimony on this all-important issue.

25

Thereafter, the trial court again failed to adequately consider the specifics of

Dr. Fenn’s testimony as it recognized only Dr. Fenn’s abstract acknowledgment that

“the kind of injuries that Ms. Landry sustained often have an unknown etiology.”

The trial court neither addressed nor acknowledged Dr. Fenn’s specific statement as

to causation of Plaintiff’s injury within the confines of this case. When pointedly

asked, “Do you believe more probably than not that Ms. Landry’s right

shoulder injury was caused by this May 25th, 2017, motor vehicle crash[,]” Dr.

Fenn unequivocally stated, “Yes.” (Emphasis added.)

Further, to the extent Dr. Duval, State Farm’s IME doctor, negated Plaintiff’s

theory of causation in his own deposition, he was not privy to the information

regarding Plaintiff’s advanced diabetic condition as developed at trial and hence did

not offer an opinion regarding how that condition could have influenced Plaintiff’s

perception of her injury. Likewise, he was not present at trial and hence was not

privy to the corroborating lay testimony from Plaintiff’s friend, Misti Landry, and

her co-worker, Kimberly Lessigne. Dr. Fenn’s testimony on that point was therefore

unchallenged in the record. We find manifest error in the trial court’s failure to

account for Dr. Fenn’s uncontradicted testimony as Plaintiff’s treating physician, as

corroborated by Plaintiff’s uncontradicted testimony and that of Plaintiff’s lay

witnesses.

In reaching this conclusion, we took into account State Farm’s further

reference of Plaintiff’s alleged inconsistent reporting of the timeline associated with

her visits to health care providers, as well as the number of visits. That “evidence”

of purported credibility impeachment is reflected in the trial court’s findings.

However, the subject accident and much of the care rendered in this case occurred

well over four years before trial. Additionally, we find that Plaintiff’s alleged

26

“inconsistent reporting” was not impeaching testimony per se, but, after reviewing

the record in its entirety, we find that it simply reveals that Plaintiff was a poor

historian who did not have a sophisticated understanding of the terms of art

associated with a claim for injuries. We note that Plaintiff did not rush to a law

office immediately following her injury. In fact, Plaintiff initially denied injury at

the time of the accident as well as in her recorded statement to State Farm. However,

she testified at trial that she felt “sore” the night of the accident and that it became

exacerbated that evening to a pain scale of ten (10), and although her pain continued,

she continued to work as best she could, albeit in pain and with certain limitations.

Plaintiff did not equate her complaint to the type of “injury” she was being asked

about. She testified that she was concerned about getting to and from work given

her nonoperational vehicle and her need to maintain employment. She explained

that she felt that her condition would improve. It, of course, did not, as evidenced

in her ultimate resort to medical care from Dr. Fenn.

In contrast to the trial court’s finding of inconsistency, Plaintiffs’ testimony is

substantiated by her medical records. Plaintiff explained that she was “sore” after

the accident, and in her statements to State Farm and the investigating officer, she

did not initially consider this “an injury.” The following day at work, however, the

pain was exacerbated with lifting. Upon rest, the pain would improve.

Plaintiff’s ability to endure a level of pain that others may find intolerable is

consistent throughout Plaintiff’s medical records. The records of Dr. Connor and

Dr. Fenn clearly include reports of pain and exacerbation of that pain with lifting.9

9
For instance, Plaintiff’s first sought medical assistance from Dr. Connor on July 26, 2017,
two months after the subject accident. Plaintiff completed the “New Patient Health History Form”
and reported “Automobile” as the “Nature of Injury” and described her “Current Complaints” as
“My right shoulder hurts when I pick up something heavy[.]”

27

Plaintiff continually attributed the onset of her shoulder pain on lifting to the

occurrence of the May 25, 2017 accident. At no time did Plaintiff waiver or report

an improvement of her condition.

While the parties argue in their briefs as to the applicability of the presumption

of causation provided by Housley v. Cerise, 579 So.2d 973 (La.1991),10 given the

immediate onset of Plaintiff’s symptoms, or lack thereof, we find the applicability

of that presumption immaterial. Rather, the record reveals that the trial court

manifestly erred in its failure to account for the uncontradicted trial testimony of

Plaintiff’s treating physician, Dr. Fenn, as to causation as his opinion was informed

at trial due to developing details of the severity of Plaintiff’s diabetic condition. And,

to the extent the trial court may have relied on Dr. Duval’s statement that Plaintiff’s

injury would have caused immediate inability to lift the arm, that view is simply and

directly contradicted by the objective evidentiary fact that Plaintiff demonstrated a

torn rotator cuff on the MRI on January 4, 2018, yet she has continued to function

at her various jobs, albeit in pain, especially on lifting her arm or lifting heavy objects.

Finally, the trial court remarked that Plaintiff’s injury had progressed due to

her failure to avail herself of medical care earlier. Dr. Fenn explained that in

Similarly, Dr. Fenn’s notes from Plaintiff’s first visit of October 26, 2017 indicate that
Plaintiff reported “a motor vehicle accident in February of 2017 [sic]” and that “[s]he noted
gradually increasing pain in the right shoulder after the MVA.” At the time of the appointment,
“she complain[ed] of mild to moderate pain to the lateral shoulder extending down over the
trapezious” and “note[d] pain and difficulty with overheads.” Plaintiff further “note[d] weakness
in the arm, pain with lifting objects as well as popping with motion. She denie[d] any stiffness.
She denie[d] any prior history of right shoulder complaints.”
10
The supreme court explained in Housley that “‘[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.’” Id.
at 980 (quoting Lukas v. Ins. Co. of N. Am., 342 So.2d 591, 596 (La.1977)). Although the
presumption initially arose within a workers’ compensation context, the supreme court applied the
underlying principle in the personal injury matter before it in Housley.

28

reference to his review of Plaintiff’s medical records, at least by her January 17,

2019 visit at which the MRI report was read, her “kind of progression” in complaints

of pain/weakness is what one would expect given the findings. State Farm cannot

now claim that Plaintiff is unable to recover for its insured’s liability merely because

Plaintiff’s injury was not properly diagnosed until a period of time afterward. To

suggest so would have required Plaintiff to immediately request costly diagnostic

and surgical procedures. Plaintiff must not be penalized for attempting to manage

her pain for two months before seeking medical intervention—particularly as State

Farm contested liability and causation. By May 2018, at which time Plaintiff was

actively seeking medical assistance, Plaintiff was required to file suit due to State

Farm’s denial of her claim. State Farm cannot now suggest that Plaintiff was

recalcitrant for not immediately filing suit and/or moving forward with earlier, more

aggressive treatment given State Farm’s denial of responsibility for this claim.

Accordingly, finding manifest error in the trial court’s ruling, we below enter

judgment in favor of Plaintiff, awarding damages as proven and prayed for at trial

for injuries associated with the May 25, 2017 accident for which State Farm provides

liability and UM coverage. The evidence shows Plaintiff sustained damages in the

amount of $624,607.11 ($14,357.11 in past medical expenses; $510,250.00 in future

medical expenses; and $100,000.00 in general damages). After subtracting for

Plaintiff’s twenty-five (25%) percent comparative fault, she would be entitled to a

judgment in the amount of $468,455.33. However, the parties entered into a pre-

trial stipulation limiting recovery to the total amount of $40,000.00, that sum

representing the policy limits of each of the applicable State Farm policies at issue.

The judgment we render against State Farm reflects the limitation on the amount of

both policies as stipulated to by the parties.

29

Costs

By her final assignment of error, Plaintiff seeks a reversal of the trial court’s

assignment of the costs of the proceedings below to her. Given our above findings

in favor of Plaintiff, we hereby reverse the trial court’s assignment of trial court costs

and below render judgment assessing both trial court costs and those associated with

Plaintiff’s successful appeal to this court against State Farm.

DECREE

For the foregoing reasons, we affirm the trial court’s judgment in its

apportionment of twenty-five percent (25%) of the fault to Plaintiff-Appellant Kayla

Landry and seventy-five percent (75%) of the fault to Defendant-Appellant Grant

Racca.

We find that Plaintiff-Appellant Kayla Landry proved medical causation by a

preponderance of the evidence based on all the evidence, especially her testimony

as corroborated by lay witnesses, and the testimony of her treating physician, Dr.

Paul Fenn.

In light of the parties’ Joint Stipulation limiting the amount in controversy,

judgment is cast in favor of Plaintiff-Appellant Kayla Landry and against Defendant-

Appellant State Farm Mutual Automobile Insurance Company in the amount of

$40,000.00 ($25,000.00 provided by State Farm Policy Number 181-5520-B11-18E

and $15,000.00 provided by State Farm Policy Number 293728918) as well as legal

interest on that sum from date of judicial demand. All costs of this proceeding, both

at the trial and the appellate level, are assessed to Defendant-Appellant State Farm

Mutual Automobile Insurance Company.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

30