Articles Posted in Negligence Claims

After a recent car accident in Kenner, Louisiana, the plaintiff’s uninsured/underinsured insurance carrier, Progressive, appealed a claim against it, claiming in part that the general damages awarded the plaintiff were excessive. Although Progressive’s claim was dismissed and the award for general damages affirmed, this case brings up the important subject of general damages in personal injury cases.

When filing a claim in a motor vehicle accident, the plaintiff wants to make sure that he or she receives all appropriate damages, and a large component of the damages award typically falls in the category of general damages. So what are general damages and how do you get the appropriate amount of general damages? First, the phrase “general damages” refers to those damages that you can’t easily put a dollar amount on. This is opposed to the other main category of damages, “special damages,” which refers to those damages such as specific medical bills or lost wages that can more easily be determined precisely.

General damages normally encompass areas of loss such as pain and suffering that are inherently subjective. These damages also include compensation for things such as disfigurement and loss of enjoyment of life. One way these damages can be proven is by testifying of things such as limited mobility or the inability to participate in specific activities as a result of the accident. However, while the loss of enjoyment or pain can be testified of, it is often hard to assign a dollar amount to this suffering.

Because the area of general damages is so subjective, many defendants appeal awards of general damages which they deem excessive, just as in the Progressive case referred to above. In the Progressive case, the award of $40,000 in damages was affirmed, however, because the appellate court decided that it was not an excessive award.

In instances like this, the fact finder must look at a preponderance of the evidence when making its judgment, and Progressive argued that the trial court did not do this. The plaintiff had only been to the doctor four times, and Progressive argued that in light of that, $40,000 was excessive. However, as stated above, general damages are not directly tied to any medical bills or any specifically proven dollar amount. Rather, general damages are subjective awards of damage. In this case, the plaintiff had back pain and was limited in the activities that he could pursue after the accident.

Furthermore, the plaintiff in this case was able to receive general damages even though he had previous back problems. Even if you have had previous health problems, that does not preclude an award of general damages. In the case with Progressive, the plaintiff had previous back problems and serious surgery just two years prior. Despite both of these facts, because the plaintiff was able to prove that the accident exacerbated his back problems, he was able to receive general damages. He testified that before the accident he had gone fishing and hunting often, but he was no longer able to fish after the accident.

Even though it is hard to put a specific dollar amount on the damage that comes from the plaintiff’s newly limited activities, the fact finders (the trial court) must make that determination. Once the trial court decides on a dollar amount and passes its judgment, it can only be reversed if the appellate court finds that the trial court’s judgment was clearly wrong or manifestly erroneous or that abuse of discretion was used. In this case, appropriate discretion was used, and the judgment was not blatantly wrong or erroneous. And most importantly, the plaintiff’s attorney made sure to claim all of the requisite damages so that his client could receive the damages he deserved.

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Keith Brown v. State Farm Mutual Automobile Insurance Company, is a very interesting case to come out of the Parrish of Caddo, Louisiana. Plaintiff, Keith Brown, was injured in a two-car accident on June 30, 2008, while he was the passenger of Michael Darnell. The driver of the other car involved in the accident was Ronald Moseley. At the time of the accident, Plaintiff was insured by State Farm Mutual Automobile Insurance Company (State Farm).

State Farm was given notification of the accident on July 8, 2008, and a claim was set up. On July 18, 2008, State Farm was contacted by Plaintiff’s medical provider, Dr. Diane Sino at Chiropractic Health Center. Subsequently, State Farm paid the submitted bills, with the exception of those bills that were not paid due to invalid procedure codes; or due to a code’s inclusion in another procedure on the bill; or because the code was used more than normally was expected during a visit. Plaintiff and Sino were informed of the reasons for nonpayment, and they did not dispute them.

Further complicating these matters is the fact that on August 5, 2008, Plaintiff was involved in another car accident. On September 10, 2008, he informed State Farm about the accident, and he indicated that Allstate Insurance Company would be responsible for all medicals incurred for that accident. Plaintiff and adjusters for State Farm and Allstate confirmed this during a three-way conference call in which Allstate gave State Farm its claim number and told State Farm to forward its medical payments demand for reimbursement. State Farm had made its final payment to Dr. Sino on September 3, 2008 before receiving notice of the second accident. On September 30, 2008, State Farm sought a refund from Allstate for those inadvertent payments.

This case raised several complicated issues, mainly who was responsible for Plaintiff’s medical bills, since he sustained injuries in two different car accidents and within a relatively short time frame. In December 2008, Plaintiff filed suit against the drivers and their insured for the June 2008 accident. Plaintiff’s claims against Moseley and his insurance company, Shelter Mutual Insurance Company (“Shelter”), were settled on August 29, 2009 for $13,000 pursuant to a “receipt and release.” As pertains to State Farm, in May 2009, State Farm had informed Plaintiff that it would pursue a subrogation claim of $3,894.82 (the amount of the medical coverage paid by State Farm) against Plaintiff, and it requested that he do nothing to jeopardize those rights. In August 2009, Plaintiff’s attorney sent a letter to State Farm indicating that State Farm’s subrogation claim would be protected.

On August 21, 2009, Plaintiff and his attorney received a check for $10,642.31, and a check payable to State Farm for $2,357.69. On September 11, 2009, Plaintiff forwarded the check to State Farm, stating that it represented the “full and final settlement for any subrogation rights that you have against Mr. Brown for payments made in reference to the accident of June 30, 2008.” In the meantime, Plaintiff’s attorney sent a certified letter dated August 14, 2009,to State Farm, indicating that an outstanding balance of $458.18 was owed to Dr. Sino. State Farm received this letter on August 19, 2009. It is this balance which is at issue in the case.

On November 12, 2009, plaintiff filed suit against State Farm, alleging nonpayment of the $458.18, as well as damages and attorney fees due to bad faith. In May 2011, State Farm filed a motion for summary judgment, which the trial court subsequently granted.

The Court of Appeal, for the Second Circuit of Louisiana, affirmed the trial court’s decision. The Court noted that the disputed amount, the $458.18, fell into two categories. One category, totaling $252.86, consisted of items submitted to State Farm that were denied due to “invalid procedure codes, inclusion in another item on the same bill, or submission of multiple codes for the same thing for the same visit.” The other category, totaling $205.32, consisted of items for treatment that took place after the second accident. The Court also found that in regards to all other payments that were not at issue, that State Farm paid them in a timely manner.

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The Third Circuit Court of Appeal for the State of Louisiana affirmed a Pineville City Court’s decision to grant the plaintiffs’ awards for lost wages and injuries that resulted from a serious traffic accident. The decision was affirmed by the appellate court after a finding that the plaintiff was not negligent in the incident and there was no clear showing of error made by the the trial court.

In considering the defendants, Empire Fire & Marine Insurance Company and the defendant driver’s allegation that the trial court erred in the vehicular accident case, the appellate court explored the facts and reasoned that the offered evidence to support a finding of error was not valid. In order to overturn a trial court’s decision, a court of appeal must find manifest error or determine that the initial ruling was clearly wrong. If the testimony provided is not credible, or the inferences of fact were not reasonable, the appellate court may overturn a decision. However, in this case, the appellate court declared that the testimony was credible, in fact, the defendants own testimony supported the trial court’s ultimate decision. Furthermore, the trial court’s assessment of damages is a finding of fact to which appellate courts give great deference on review. It is not an easy task to simply overturn a damages award, thus, as a result, the record must clearly reveal that the jury abused their discretion in making its award.

The plaintiff in this case was a young woman who was driving her Pontiac Grand Prix with her son and an acquaintance who had his ten year old son as passengers. the plaintiff’s vehicle was in the far right lane on a four lane highway with two eastbound and two westbound lanes. The lane the plaintiff was traveling in became heavily congested, thus, she looked in her rear view mirror to determine whether or not the left hand lane was safe to enter. This is an important factor to consider, since the defendant driver testified that he saw her check her rear view mirror numerous times, supporting the idea that she did not simply enter into the lane negligently. In addition to the plaintiff driver checking her rearview mirror, the adult passenger in the vehicle also checked out the window to assure her that it was safe to change lanes. As she entered the lane, an eighteen-wheeler operated by the defendant collided with her Pontiac, making it spin to face the opposite direction. The issue raised by the incident was who was at fault for the collision.

Many times factual determinations rest on testimony provided. In this case, the officer at the scene provided the conversations he had with both parties following the accident. What the officer had to say leaned heavily in the plaintiff’s favor, since the eighteen-wheeler driver declared that he saw the plaintiff check her rear view mirror numerous times and as he was behind her, decided to change lanes at essentially the same time she did, resulting in the collision. Following the accident the plaintiff driver and her passengers and the three passengers sought medical attention, the doctor’s report indicated that two of the passengers suffered various soft-tissue injuries, including cervical, thoracic, and lumbar strains, a post-traumatic headache, and clavicle damage. In order to remedy there injuries physical therapy, medication, and cold/hot packs were prescribed. Unfortunately, none of the injured parties had medical attention, so the medical expenses began to weigh heavily on their finances. Specifically, the plaintiff’s acquaintance that was riding in her vehicle the day the collision occurred was a carpenter, his injuries grew increasingly worse, negatively impacting his ability to perform his work duties. With the loss of income, increasing medical expenses, and the need for future help, the lawsuit ensued. The trial court held that the defendant driver was solely responsible for the accident and the trial court awarded $9,500 in general damages to the adult passenger plaintiff as well as $11,000 in general damages as well as $1,500 in lost wages to the driver plaintiff. Both adult passengers were reimbursed for their medical expenses.

The trial court determined that the testimony provided by all the parties and the resulting injuries supported the finding of damages and responsibility. Yet, the defendants attempted to portray to the appellate court, that the fact at issue was the trial court’s failure to apply appropriate law to the facts of the case. The entire basis of their argument was that the plaintiff driver “it must be presumed…did not look before she turned because if she had looked she would have surely noticed the appellant’s 18-wheeler.” Further, the defendants alleged that the plaintiff did not testify at trial due to a prior felony conviction, thus her declarations in regards to the collision should be held unreliable. Neither argument succeeded. First, the defendant driver testified that he saw the plaintiff driver check her rear view mirror “numerous times,” this negates the defendants argument that she simply “should have known.” Secondly, the trial court was fully aware of her prior felony conviction, but apparently found the plaintiff’s position more credible then the defendant driver’s. Lastly, the plaintiff had no obligation to testify, no one subpoenaed her as a witness, the defendants never called her to the stand.

The defendants failed to provide any authority for their positions, they simply argued that the trial court’s ruling was not fair. In order to make a legal position, one must first build a foundation using precedent, case law, or statutory authority. Without a foundation a building will fall, as such, the defendant’s argument failed without having any support.

If you have been injured in a car accident, you need representation that will be able to build the legal foundation you need in order to have a supported legal argument.

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In a Wal-Mart parking lot in Minden, Louisiana, two mothers and two children were hit by an oncoming car rented two days previously from a local Enterprise. The families sued based upon their injuries and several insurance companies got involved. One insurance company, Safeway, was for Peaker, the individual driving the car. Safeway’s policy included a clause that stated they would cover accidents in vehicles that he did not own, “provided the non-owned vehicle is being used by the named insured with the permission of its owner.”

Normally, permission to drive someone else’s vehicle is fairly straightforward. In this case, the dispute involving coverage depended on whether the rental car company gave Peaker permission to drive the rental car. Peaker’s girlfriend actually rented the car and Peaker’s name was not on the list of authorized drivers. If Enterprise did not give its permission for Peaker to drive the car, then, Safeway alleged, the insurance company would not cover damages related to the accident.

There was conflicting testimony as to whether Peaker actually had permission. According to Peaker, he went to Enterprise with his girlfriend to pick up the car. He paid cash for it and rode with her back to their house in the vehicle. However, the Enterprise employee who rented the car to them did not remember seeing Peaker and they had no records as to where the cash payment originated. At the time of rental, the employee specifically asked Peaker’s girlfriend if anyone else would be driving the car and she answered in the negative. In addition, Peaker could not be listed regardless because he did not have a valid driver’s license at the time of rental, nor when the accident took place.