STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

DOCKET NUMBER 2023 CA 0946

CHARLES T. MOORE AND CRYSTAL MILLER

VERSUS

GERMANIA SELECT INSURANCE COMPANY AND DAVID C. MAXEY

Judgment Rendered: __ 3_1_2_024 M_AY_

ON APPEAL FROM THE lWENTY-FIRST JUDICIAL DISTRICT COURT, DIVISION C IN AND FOR THE PARISH OF TANGIPAHOA STATE OF LOUISIANA DOCKET NUMBER 2016-0001786

HONORABLE ERIKA W. SLEDGE, JUDGE PRESIDING

Joseph S. Piacun Attorneys for Plaintiff-Appellant Christopher P. Lawler Crystal Miller Metairie, Louisiana

Hoai T. Hoang Attorney for Defendant-Appellees Lafayette, Louisiana Germania Select Insurance Company and David C. Maxey

BEFORE: THERIOT, PENZATO, AND GREENE, Jl.

GREENE, J.

In this case, the trial court determined a guest passenger injured in an automobile

accident failed to prove that all of her alleged injuries were causally connected to the

accident. Accordingly, the trial court awarded the guest passenger less than all of the

damages she claimed. The guest passenger appeals from the adverse judgment. After

review, we amend the judgment to correct a spelling error and affirm the judgment as

amended.

FACTUAL AND PROCEDURAL BACKGROUND

On July 3, 2015, Crystal Miller was a guest passenger in a Honda Accord being

driven by Charlie Moore in the southbound right lane of Veterans Avenue in Hammond,

Louisiana. David Maxey was driving his Ford F250 pickup truck in the adjacent left lane

of Veterans Avenue and was pulling a trailer loaded with a boat. As the vehicles navigated

a two-lane roundabout intersection, Mr. Maxey's trailer struck Mr. Moore's vehicle, drug

it for a distance, and then pushed it into a concrete barrier. Mr. Moore and Ms. Miller

were taken by ambulance to North Oaks Medical Center. Relevant here, Ms. Miller was

diagnosed with cervical strain and a back contusion. A neurologist later diagnosed Ms.

Miller with a concussion and treated her for headaches, facial numbness, neck pain,

shoulder pain, back pain, and cervical and lumbar radiculopathy.

On June 30, 2016, Mr. Moore and Ms. Miller filed this personal injury suit against

Mr. Maxey and his automobile insurer, Germania Select Insurance Company (Germania).

The trial court ultimately conducted a bench trial at which the plaintiffs testified and

introduced evidence. Thereafter, the trial court took the matter under advisement to

review the parties' extensive documentary evidence, primarily medical records and

physician depositions. By amended judgment signed on December 1, 2023, 1 the trial

court awarded Mr. Moore $ 13,500 in special damages and $ 15,000 in general damages

On October 31, 2022, the trial court signed "Reasons for Judgment and Judgment," from which Ms. Miller appealed. In response to this Court's Interim Order remanding the "Reasons for Judgment and Judgment" for correction of deficiencies, the trial court signed a December 1, 2023 amended judgment correcting the deficiencies and filed it into the appellate record. On February 14, 2024, this Court maintained the appeal.

We note that the December 1, 2023 amended judgment incorrectly references Mr. Maxey as "Davis Maxey" as opposed to "David Maxey." Under La. C.C. art. 2164, this Court has the authority to correct this misspelling. See Succession of Dussor, 2021-1467 ( La. App. 1 Cir. 6/6/22), 2022 WL 1961574, * 2, n.3.

We will amend the amended judgment accordingly.

and awarded Ms. Miller $6,000 in special damages and $ 10,000 in general damages. In

written reasons for judgment, the trial court determined Mr. Maxey was 100% at fault in

the July 2015 accident, that both plaintiffs had pre-existing injuries that were exacerbated

by the accident, but that neither plaintiff was entitled to recover all of the medical

expenses he/she claimed were attributable to the accident.

Ms. Miller appeals from the judgment. In a single assignment of error, she claims

the trial court erred in awarding her only $16,000 in total damages, despite her incurrence

of over $ 25,000 in medical expenses for what she characterized as " over six years of

consistent medical treatment for her injuries, including a traumatic brain injury." In

opposition, Mr. Maxey and Germania point out that Ms. Miller was injured in automobile

accidents before and after the 2015 accident and, after both, was treated for injuries

similar to those attributable to the 2015 accident. The defendants contend the trial court

evaluated the evidence, made reasonable factual conclusions regarding credibility and

medical causation, and correctly determined that Ms. Miller failed to prove that all of her

alleged injuries in this suit were caused by the 2015 accident.

CAUSATION AND STANDARD OF REVIEW

In a personal injury suit, the plaintiff bears the burden of proving the causal

connection between an accident and his resulting injuries by a preponderance of the

evidence. Faul v. Robinson, 2019-1450 (La. App. 1 Cir. 12/16/20), 316 So.3d 1077, 1080,

2021-00081 ( La. 3/9/21), 312 So.3d 584. A tortfeasor is liable only for damages caused

by his negligent act, not damages caused by separate, independent, or intervening

causes. Id. However, if the plaintiff proves that defendant's negligence aggravated a

pre-existing condition, the defendant must compensate the victim for the full extent of

that aggravation. Id.

A factfinder's determination regarding causation, i.e., whether an accident caused

the plaintiff's injuries, is a factual question that should not be reversed on appeal absent

manifest error. Id. Under the manifest error standard, the appellate court does not

decide whether the factfinder was right or wrong; rather, it must consider the entire

record to determine whether a reasonable factual basis exists for the factual finding, and

whether the finding is manifestly erroneous or clearly wrong. Id. Reasonable persons

frequently can and do disagree regarding causation in particular cases. Id But where

there are two permissible views of the evidence, the factfinder's choice between them

cannot be manifestly erroneous or clearly wrong. Id. at 1080. Further, when findings

are based on determinations regarding witness credibility, the manifest error standard

demands great deference to the factfinder's findings; for only the factfinder can be aware

of the variations in demeanor and tone of voice that bear so heavily on the listener's

understanding and belief in what is said. Id. at 1081. Accordingly, for the reviewing

court, the issue to be resolved is not whether the factfinder was wrong, but whether the

factfinder's conclusions were reasonable in light of the record viewed in its entirety.

Mcinnis v. Bonton, 2017-0088 (La. App. 1 Cir. 9/21/17), 232 So.3d 22, 25.

DISCUSSION

In this case, the defendants introduced evidence showing Mr. Moore and Ms. Miller

were in a previous automobile accident in October 2014, approximately nine months

before the subject July 2015 accident. After the October 2014 accident, Ms. Miller

presented to a chiropractic clinic with complaints of headaches, blurred vision, right-side

facial tingling, and pain in her neck, shoulders, arms, right hip, and back. Dr. Matthew

Shelly, a chiropractor, treated her through mid-May 2015 for her injuries. On May 13,

2015, Ms. Miller's last visit with Dr. Shelly, she complained of severe back pain at least

90% of the time, daily intermittent right-side facial numbness and tingling, and

sometimes vertigo.

The accident at issue here occurred on July 3, 2015, approximately seven weeks

after Ms. Miller's last appointment with Dr. Shelly. Ms. Miller and Mr. Moore both

described the accident during their trial testimony - they stated that, when Mr. Maxey's

boat trailer struck Mr. Moore's vehicle, it drug the vehicle a certain distance, and then

forced it off of the road and into a concrete barrier. Ms. Miller described the accident as

involving "[ a] lot of jolting and jerking," and both Ms. Miller and Mr. Moore testified that

Ms. Miller struck her head on the windshield during the accident.

When seen at North Oaks Medical Center emergency room immediately after the

accident, Ms. Miller was diagnosed with a cervical strain and a back contusion, given pain

medication, and released. Although Ms. Miller testified that she told the North Oaks staff

that she hit her head, the North Oaks medical record is silent regarding any examination

or treatment for a head injury.

On July 15, 2015, twelve days after the accident, Ms. Miller began seeing Dr.

Morteza Shamsnia, a neurologist, with complaints including headaches, dizziness, blurred

vision, confusion, memory loss, neck pain, low back pain, and radiating pain to the right

extremity. At her next appointment, on August 28, 2015, she additionally complained of

facial numbness. Dr. Shamsnia diagnosed Ms. Miller with a concussion and referred her

for a brain MRI, which showed a left-sided abnormality supportive of his concussion

diagnosis. He treated Ms. Miller with pain medications through early 2016 and then did

not see her again until September 2017, about 20 months later. After that gap, Dr.

Shamsnia continued to treat Ms. Miller, from September 2017 through December 2022,

for complaints consistent with those for which he had treated her since the 2015 accident.

During Ms. Miller's gap in treatment with Dr. Shamsnia, she saw a second

neurologist, Dr. Troy Beaucoudray, on six occasions between October 2016 and August

2017. Dr. Beaucoudray prescribed medications to treat Ms. Miller's complaints of

headaches, neck pain, and back pain. Also during that period, on May 5, 2017, Ms. Miller

was involved in a third automobile accident, where a vehicle in which she was a passenger

was rear-ended. According to Ms. Miller, the 2017 accident aggravated her neck, back,

and head conditions. She treated with Dr. Anthony Zuppardo, a chiropractor, on four

occasions after the 2017 accident, and reported to him that her neck pain and headaches

were much worse than before the accident. Ms. Miller discontinued treatment with Dr.

Zuppardo as of June 6, 2017, finding it was " hurting more than helping." At trial, she

testified that the 2017 accident's aggravation of her pre-existing conditions did not persist

and her pain level eventually returned to the " baseline" level she had experienced since

the 2015 accident. She returned to treating with Dr. Shamsnia in September 2017 and

that treatment continued through the time of trial in October 2022.

In his deposition ( taken in February 2022), Dr. Shamsnia opined that Ms. Miller's

concussion symptoms, as well as her neck and low back pain, were caused by the July

2015 accident. However, at his deposition, Dr. Shamsnia was unaware that Ms. Miller

had been involved in the 2014 accident or in the 2017 accident. He admitted that some

of Ms. Miller's symptoms following the 2014 accident, particularly blurred vision and

vertigo, may have been indicative of a concussion. And, without reference to her post-

2017 accident medical records, Dr. Shamsnia could not opine on the effect the 2017

accident had on her conditions.

In the following written reasons for judgment, the trial court discussed Ms. Miller's

2014, 2015, and 2017 accidents and made certain factual findings regarding the causal

connection between the accidents and Ms. Miller's injuries and medical expenses:

The records show that Crystal Miller experienced right sided facial numbness and tingling, vertigo, left sided neck pain, headaches, and lumbar pain prior to the [July 2015] accident at issue as a result of a prior [October 2014] accident. She was experiencing those symptoms two months before the subject [July 2015] accident. However, Dr. Shamsnia, Crystal [ Miller's] treating neurologist, testified that the subject [ July 2015] accident caused her to experience right sided neck pain, and a brain injury due to concussion. He could not definitively state that the [ July] 2015 accident caused or exacerbated her low back pain. Both plaintiffs testified that Crystal Miller hit her head on the windshield as a result of the impact with the concrete barrier.

The court finds that the subject [ July 2015] accident exacerbated Crystal Miller's preexisting brain injury/post-concussion symptoms and neck condition.

In reference to special damages, ... Crystal Miller submitted medical bills totaling $ 23,171.00. In reviewing [ those bills], numerous dates of service occurred after a May 5, 2017 auto accident that Crystal Miller was involved in and sought treatment for with similar complaints. Therefore, the court cannot relate these expenses more [ probably] than not [ to] the July 2015] accident in question. Additionally, Crystal Miller was suffering with similar preexisting pain at the time of this [ July 2015] accident in question. The court awards special damages to Crystal Miller in the amount of $6,000.00 ( North Oaks -$ 623.00 and Dr. Shamsnia ( prior to 5/5/17 - 7,450.00[)] for a total of $8,073.00 reduced to account for plaintiff's preexisting injuries)[.] No proof of additional special damages was offered or admitted.

The last element to address is general damages. Based upon all of the evidence submitted[,] the court finds that the injuries sustained by ...

Crystal Miller were exacerbations of preexisting conditions. It is difficult to ascertain more [ probably] than not how long [ Crystal Miller] treated specifically for these exacerbations. Again, there is a history of multiple accidents with injury ... and Crystal Miller was involved in a subsequent motor vehicle accident in 2017 with similar complaints .... The court awards general damages to Crystal Miller in the amount of $10,000.00.

The total award to Crystal Miller is $ 16,000.00 plus court costs and legal interest from the date of judicial demand.

The trial court was presented with conflicting and unclear evidence regarding the

nature, extent, and cause of Ms. Miller's medical conditions. The trial court apparently

determined that, in light of injuries she suffered in the 2014 and 2017 accidents, Ms.

Miller did not meet her burden of proving that the July 2015 accident caused all of the

injuries for which she treated with Dr. Shamsnia through the date of the October 2022

trial. Rather, the trial court found Ms. Miller only proved the July 2015 accident

aggravated pre-existing medical conditions she already had and did not prove the extent

of that aggravation. Our review of the trial testimony, depositions, and medical records

introduced at trial reveals that the record supports the trial court's conclusion that Ms.

Miller did not carry her burden of proof as to causation.

Although Dr. Shamsnia testified that some of Ms. Miller's injuries were caused by

the July 2015 accident, the trial court also reviewed medical records from Dr. Shelly, Dr.

Beaucoudray, and Dr. Zuppardo showing that her head, neck, and back had been

previously injured in the October 2014 accident and again injured in the May 2017

accident. As the factfinder, the trial court was free to accept or reject any medical expert's

opinion after weighing and evaluating other medical evidence. See Mcinnis, 232 So.3d

at 27. Further, the trial court is not bound to accept a plaintiff's perception, or any other

witness's perception, of the nature and the extent of the plaintiff's injuries. Id. The trial

court apparently weighed Ms. Miller's testimony and credibility and rejected her

perception of the extent of the injuries caused by the July 2015 accident. See Id. at 27;

Faul, 316 So.3d at 1085-86.

In sum, the record demonstrates a reasonable factual basis for the trial court's

determinations that the October 2014 accident caused Ms. Miller to have " brain

injury/post-concussion symptoms and neck condition"; the July 2015 accident

exacerbated those pre-existing conditions; Ms. Miller sustained similar injuries in the May

2017 accident; and, Ms. Miller failed to prove her injuries and continuing treatment with

Dr. Shamsnia after the May 2017 accident were caused and necessitated by the July 2015

accident. Thus, we will not disturb these permissible factual conclusions drawn by the

trial court.

As earlier noted, a defendant whose negligence aggravates a pre-existing

condition must compensate the victim for the full extent of that aggravation. Faul, 316

So.3d at 1080. We find no manifest error in the trial court's factual determination that

Mr. Maxey's negligence in causing the July 2015 accident further caused Ms. Miller to

incur $6,000 in medical expenses ( the North Oaks bill for $623 plus Dr. Shamsnia's bill

through May 5, 2017 totaling $ 7,450, less a $ 2,073 reduction for pre-existing injuries)

and entitled her to $10,000 in general damages. Ms. Miller's sole assignment of error is

without merit.

CONCLUSION

For the above reasons, we amend the December 1, 2023 amended judgment to

identify the named defendant as " David Maxey." As amended, we affirm the trial court's

amended December 1, 2023 judgment rendered in favor of Crystal Miller and against

David Maxey and Germania Select Insurance Company for $16,000 -$ 6,000 in special

damages and $ 10,000 in general damages. We assess costs of the appeal to Crystal

Miller.

AMENDED; AFFIRMED AS AMENDED.