Brenda Jean Barber and Joseph Barber VS Holly S. Sequin, Farm Bureau Insurance Companies and Progressive Insurance
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 1370 BRENDA JEAN BARBER AND JOSEPH BARBER VERSUS HOLLY S SEQUIN FARM BUREAU INSURANCE COMPANIES PROGRESSIVE INSURANCE COMPANY Judgment Rendered On FES 2 2010 Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket No 504 073 Honorable Timothy E Kelley Judge Presiding Appellants AJ Paul Fredrickson II Counsel for Plaintiffs Robert W Williams III Brenda Jean Barber and Baton Joseph Barber Rouge LA Counsel for Defendants Appellees Holly Sequin and Louisiana Farm Bureau Casualty Insurance Company Stacey Moak Christopher A Mason Baton Rouge LA n BEFORE DOWNING GAIDRY AND McCLENDON JJ f McCLENDON J This on litigation arises out of end motor vehicle collision that occurred a rear February 6 2002 in Baton Rouge Louisiana involving Brenda Jean Barber and husband a filed Petition for a on Damages vehicle operated by Mrs Barber and her operated by Holly Sequin vehicle Barber Joseph a 2003 January 31 naming Holly Sequin and her insurer Louisiana Farm Bureau Casualty Insurance Company to as defendants 2 Mrs Barber claimed she sustained several parts of her body disorder that she suffered including an result of as a a exacerbation of injuries numerous a pre existing TMJ prior automobile accident in 1989 or 1990 sought treatment with Michael J Kadair D D S Mrs Barber 20 2002 were Dr Kadair noted that Mrs Barber consistent with TMJ including occipital headaches and pain Kadair also noted that Mrs Dr wherein she suffered Mrs Barber a Barber had been involved in TMJ disorder and had been treated reported that she was pre a ear prior accident DD S J B Smith experienced any pain relative to her TMJ condition until the motor vehicle accident at issue February 6 2002 accident did not behind her symptom free following the prior treatment Smith and that she had not with Dr by February symptoms that several presented on cause Kadair opined that the Dr Mrs Barber s TMJ but exacerbated her existing condition to the point where it needed to be treated and managed again Dr Kadair diagnosed Mrs Barber with having with condition with accident month 1 2 the court found Sequin The trial court found that Mrs injury and awarded Louisiana Farm Bureau Insurance derangement Company Mrs Casualty Barber Insurance in the Petition for was Kadair treated TMJ acute and splint therapy for approximately thirteen months trial Dr chronic episode TMJ Following internal a solely Mrs at fault in Barber had suffered is incorrectly named a one as s causing the 4 288 58 for medical expenses Company Barber to two 1 500 Farm Bureau Damages Plaintiffs also named Mrs Barber s uninsuredjunderinsured motorist carrier Progressive Company as a defendant Progressive subsequently tendered its policy limits of 25 000 and was released from the litigation Insurance 2 4 000 for for loss of enjoyment of life and her husband have filed the instant failing to award discretion in pain and suffering 3 Mrs Barber and appeal asserting that the trial court abused its Barber Mrs damages for the splint costs of the therapy treatment and further general damages related to her TMJ condition Plaintiffs assert that symptoms associated the with Mrs Barber s exacerbation of her TMJ disorder did not manifest themselves until the accident at issue plaintiffs Moreover assert that Dr Kadair never vacillated with regard opinion that the accident exacerbated Mrs Barber s pre existing TMJ to his Plaintiffs conclude that the trial court condition general and failure to award Mrs Barber s special damages for the thirteen month exacerbation and treatment of her TMJ disorder was clearly wrong and inconsistent with the law and the evidence Kadair Dr Barber reported to him however Peters 162 the preexisting TMJ condition s Barber belief that s can It is 2003 1296 p lack s 8 La was was the Mrs 86 000 injuries Barber also plus an general damages clear that the was done factual a issues physician 879 So 2d 157 a credible damage Mrs Barber by something other than Barber had been involved in Mrs alleged unspecified as a In addition to damages related to her TMJ that she incurred medical amount of lost wages result of this accident entirety of the medical records the for her other specials totaling specials future medical Nevertheless after reviewing court found that Mrs Barber was treating injuries prior to the accident and that the problems associated with this accident are a 3 Barber awarded Mr Also following Mrs other accidents both before and after the accident at issue wherein she sustained various and on apparent that the trial court did not find Mrs Barber to be the automobile that over credibility App 1 Cir 4 2 04 alleged her vehicle sustained in the accident condition of veracity of her complaints to First the trial court noted that it numerous accident exacerbated based largely upon the history Mrs was A claimant to diminish the Harmsen v witness serve motor vehicle was minor pain and inconvenience 1 500 for loss of consortium 3 Accordingly the trial court damages could reasonably question the veracity of Mrs Barber with regard to the acknowledged trial court s apparent Ivy 28 V v accept s or Holding rejection of Co In we of the applies or in s part p 6 La opinion an misaligned as to causation opinion expressed by App 1 Cir 7 2 03 expert 2007 2312 p 12 to the evaluation of are patently unsound seven bite that The trial an expert 859 So 2d 22 questions of credibility are expert testimony unless the Ryan v Zurich American 988 So 2d 214 222 La 7 1 08 light of the foregoing and after considering the entirety of the record was factual basis exists in the record Weatherford 763 v not to clearly Accordingly and that wrong support the trial court Commercial Union Ins 765 66 memorandum 2 16 1 B Kadair Further the rule that Id conclude that the trial court So 2d in a Barber had weight to be given expert testimony is within the broad for the trier of fact also Ins Co Dr 2002 1927 discretion of the trial court reasons to Dr Kadair This may also have contributed to the problems reject in whole The effect and stated that Mrs prior to the accident which resulted could have contributed to her court may complaints history she reported and the onset of her symptoms We also note that Dr Kadair teeth extracted s we 94 1793 affirm p the trial 5 s La court s a reasonable finding See 2 20 95 650 judgment by opinion in accordance with Uniform Rules Courts of Appeal Rule Costs of this appeal are assessed against the plaintiffs AFFIRMED 4
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