Vincent Gleber and Douglas Rayburn VS Patricia Mayfield, and American Alternative Insurance Company

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 CA 1209 VINCENT GLEBER AND DOUGLAS RAYBURN VERSUS PATRICIA MAYFIELD AND AMERICAN ALTERNATIVE INSURANCE COMPANY Judgment Rendered February 10 2012 On Appeal from the 22nd Judicial District Court In and For the Parish of St Tammany Trial Court No 2009 10232 The Honorable William J Knight Judge Presiding Stephen P Bruno New Orleans Louisiana Harry P Pastuszek Jr Counsel for PlaintiffsAppellees Vincent Gleber and Douglas Rayburn David S Pittman Counsel for DefendantsAppellants Patricia Mayfield and St Tammany Faith E Richard Parish School Board Covington Louisiana Patrick H Patrick Counsel for IntervenorAppellee Jennifer S Edwards Louisiana Commerce New Orleans Louisiana Association Trade Self Insurers Fund BEFORE GAIDRY McDONALD AND HUGHES JJ HUGHES J This is an appeal of a finding of one hundred percent fault on the part of the driver of a school bus in causing the automobile accident at issue and of the damage awards rendered For the reasons that follow we amend the judgment affirm as amended and remand FACTS AND PROCEDURAL HISTORY On October 2 2008 at approximately 6 a Patricia Mayfield 50 m was driving a St Tammany Parish school bus and had stopped at a stop sign on North Tranquility Road at its intersection with Highway 190 near Lacombe Louisiana waiting to turn left onto Highway 190 At the same time another motorist Stephen Benz was stopped at a stop sign on South Tranquility Road on the opposite side of Highway 190 from Ms Mayfield As Mr Benz was successfully negotiating a left hand turn westbound onto 90 Highway 1 Ms Mayfield also made a left hand turn through the intersection but in the eastbound direction onto Highway 190 While Ms Mayfield was turning Douglas Rayburn who was driving a Ford F 150 truck eastbound on La Highway 190 rapidly approached the school bus which had pulled out in front of his vehicle In order to avoid hitting the bus Mr Rayburn took evasive action lost control of the vehicle upon hitting gravel and landed in a ditch but a collision with the school bus was avoided Vincent Gleber was a passenger in Mr Rayburn svehicle at the time of the accident and both Mr Rayburn and Mr Gleber were injured No one on the bus was injured Mr Benz reported to the investigating officer on the scene of the accident Louisiana State Trooper Jason Boyet that Mr Rayburn vehicle s was too close to the intersection for the school bus to have made the turn and K that the school bus turned into the path of the truck Ms Mayfield told Trooper Boyet immediately after the accident that she did not see the Rayburn vehicle coming so she proceeded to make her turn Vincent Gleber and Douglas Rayburn filed the instant suit on January 12 2009 naming as defendants Patricia Mayfield and her insurer American Alternative Insurance Corporation AAIC The petition was later amended to add as plaintiffs for their loss of consortium the plaintiffs spouses Robbie Gleber and Melanie Rayburn and to add as a defendant the St Tammany Parish School Board Association Self Insurers The Louisiana Commerce Fund LCTA Trade intervened in the action seeking reimbursement of workers compensation benefits paid to Mr Rayburn who was in the course and scope of his work with Superior Air Conditioning and Heating LLC at the time of the accident Following a bench trial on August 16 2010 judgment was rendered in favor of the plaintiffs and against Ms Mayfield and the St Tammany Parish School Board finding Ms Mayfield solely at fault in causing the accident Mr Gleber was awarded a total of 25 in damages 65 999 00 000 20 in general damages 750 in lost wages and 5 in past 00 65 249 Both accident reconstructionists who testified at the trial of this matter Wayne Winkler and Jeremy Hoffpauir agreed that because Mr Benz first crossed Mr Rayburn lane of travel the s eastbound lane of Highway 190 to move into the westbound lane of Highway 190 as compared to Ms Mayfield who first crossed the westbound lane ofHighway 190 and then moved into Mr slane of travel tile eastbound lane of Highway 190 Mr Benz would have cleared Mr Rayburn slane of travel more quickly than Ms Mayfield who was only beginning to enter the Rayburn eastbound lane upon Mr Benz leaving it 2 Although the plaintiffs named AAIC as American Alternative Insurance Company in their petition AAIC in its answer indicated its correct name was American Alternative Insurance Corporation We note that the loss of consortium claims were dismissed on the day oftrial 3 medical expenses Mr Rayburn was awarded a total of 319 in 82 100 damages 150 in general damages 51 in past lost wages 00 000 00 326 00 000 56 in future lost earnings and 61 in past medical expenses 82 774 Out of the amounts awarded to Mr Rayburn the court found LCTA entitled to a total reimbursement of 65 42 for indemnity benefits 82 26 192 588 paid and 22 for medical benefits paid 56 604 reduced by onethird for the attorney fees incurred by Mr Rayburn in pursuing this claim s The net intervention amount awarded to LCTA was 43 Ms Mayfield 53 457 and the St Tammany Parish School Board were further taxed with 00 760 5 in costs which included 1 for the testimony of Wayne 00 500 Winkler 3 for the testimony of Dr Thomas Lyons and 1 00 000 00 260 in court costs From this judgment Patricia Mayfield and the St Tammany Parish School Board have suspensively appealed asserting the trial court erred in finding Ms Mayfield solely at fault and failing to assess fault to Mr Rayburn in the amount of general damages past lost wages and future lost earnings awarded to Mr Rayburn and in the amount of general damages awarded to Mr Gleber LCTA has filed an answer to the appeal asserting it has continued to provide indemnity and medical benefits to Mr Rayburn owing to the fact that the defendants suspensively appealed and have not paid the judgment amounts Therefore LCTA asks this court to modify the judgment in its favor to award full reimbursement of indemnity and medical benefits paid to or on behalf of Mr Rayburn less one third for the attorney fees he has incurred in pursuing his claim to be paid out of the judgment rendered in Mr s Rayburn 4 The parties stipulated to the correctness of these figures 4 favor Further LCTA suggests that a remand to the trial court would be appropriate for a determination of the exact amount of the reimbursement to which it is entitled DISCUSSION Fault of Patricia Mayfield In finding that Ms Mayfield was solely at fault in causing this accident the trial court stated in his reasons for judgment that Ms Mayfield failed to properly stop and check for the clearing of traffic on the favored roadway of Highway 190 before entering the highway further reasoning as follows The testimony ofMr Benz is of particular significance to the Court since he has no interest whatsoever in the outcome of this litigation Mr Benz who was traveling northbound on Tranquility Road testified very clearly that he knew he had time to enter Highway 190 since all he had to do was clear the oncoming traffic lane Benz stated that he had plenty of time to go without impeding Rayburn vehicle which was a couple s of hundred feet away in fact Benz stated that he traveled two to three seconds down Highway 190 before passing Rayburn s vehicle Benz further testified that he knew an accident was going to happen when he saw the bus turning onto the roadway in front of the truck operated by Mr Rayburn While the testimony of the accident reconstruction i st for both sides was interesting that testimony was not necessary in order to decide this case In fact the usage by Mr Hoffpauir of the same acceleration factor for both the school bus and Mr Benz truck is symptomatic of the lack of utility of that information to the Court What was very clear was the testimony of Mr Rayburn and Mr Gleber that there was no time to do anything except take evasive action This testimony is corroborated by the testimony of accident reconstructionist Wayne Winkler that the natural reaction of Mr Rayburn to turn to the right in an avoidance technique was totally predictable and by the testimony of Mr Benz that as soon as he looked in That cloud was clearly his rearview mirror he saw a cloud caused by Mr Rayburn truck entering the shoulder of the s roadway and stirring up the cloud of dust that Mr Benz described It is also telling that Ms Boutwell was not sure what the traffic conditions were on Highway 190 until after they had pulled onto the roadway While Ms Mayfield clearly testified 5 Carolyn Boutwell was a bus attendant on the school bus at the time of the accident 5 that she had ample time to pull onto the roadway and proceed in a safe fashion without interference from Mr Rayburn struck the only logical conclusion from the evidence is that she simply did not see the truck as she stated to Trooper Boyet on the date of the accident For the reasons set forth above the Court finds plaintiffs have carried their burden of proving that the accident was the sole fault of Patricia Mayfield and she is responsible for the damages which flow therefrom A court of appeal may not set aside a trial court finding of fact in the s absence of manifest error or unless it is clearly wrong Rosell v ESCO 549 So 840 844 La 1989 The supreme court has announced a two 2d part test for the reversal of a factfinder determinations s 1 the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and 2 the appellate court must further determine that the record establishes that the finding is clearly wrong manifestly erroneous Stobart v State Department of Transportation and Development 617 So 880 882 La 1993 See also Mart v Hill 2d 505 So 1120 11 La 1987 2d 27 Thus the issue to be resolved by a reviewing court is not whether the trier of was right or wrong but fact whether the factfinder conclusion was a reasonable one Stobart v State s Department of Transportation and Development 617 So at 882 2d Where factual findings are based on determinations regarding the credibility of witnesses the trierof fact s findings demand great deference Boudreaux v Jeff 2003 1932 p 9 La App 1 Cir 9 884 So 04 17 2d 665 671 Secret Cove L v Thomas 2002 2498 p 6 La App 1 Cir C 03 7 11 862 So 1010 1 writ denied 20040447 La 4 869 2d 016 04 2 2d So 889 The trierof fact is empowered to accept or reject in whole or in part the testimony of any witness deemed lacking in credibility Verges v Verges 2001 0208 p 10 La App 1 Cir 3 815 So 356 363 02 28 2d writ denied 20021528 La 9 825 So 1179 02 20 2d 6 Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder reasonable evaluations of credibility and s reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony Rosell v ESC4 549 So at 844 Where 2d there are two permissible views of the evidence the factfinder choice s between them cannot be manifestly erroneous or clearly wrong Stobart v State Department of Transportation and Development 61 So at 7 2d 883 Wright v Bennett 20041944 p 25 La App 1 Cir 9 924 05 28 2d So 178 193 The manifest error standard of review is applied to a s factfinder allocation of fault Toston v Pardon 2003 1747 p 17 La 04 23 4874 So 791 803 2d Preferential right of way at an intersection may be indicated by stop signs LSAR 32 A driver and operator of a vehicle approaching S1 A 23 an intersection controlled by a stop sign is required to stop before entering the intersection and the driver must yield the right of way to all vehicles approaching on the favored highway See LSAR 32 Toston v S 123 B Pardon 2003 1 at p 16 874 So at 802 747 2d The supreme court has recognized that a motorist has a duty in such a circumstances not to proceed until determining that the way is clear Further the supreme court has declared that a left turn is one of the most dangerous maneuvers a motorist can execute and before attempting same a motorist must ascertain whether it can be completed safely See Toston v Pardon 2003 1747 at p 15 874 So at 802 2d After reviewing the record presented on appeal we are unable to say the trial court committed reversible error in finding Ms Mayfield solely at fault in causing the accident at issue In so doing the trial court made credibility determinations as indicated in the quoted trial court reasons for V s judgment Since there was a reasonable basis in the record for the court finding that Ms Mayfield failed to ascertain that her way was clear to enter the favored highway we are unable to disturb the apportionment of fault on appeal Damage Awards In the assessment of damages in cases of offenses quasi offenses and quasi contracts much discretion must be left to the judge or jury LSA C art 2324 1 On appellate review damage awards will be disturbed only when there has been a clear abuse of that discretion The initial inquiry must always be directed at whether the trial court award for the particular s injuries and their effects upon this particular injured person is a clear abuse of the trier of fact much discretion Cole v State Dept of Public Safety s and Corrections 2003 2269 p 5 La App 1 Cir 6 886 So 463 04 25 2d 465 writ denied 20041836 La 10 885 So 589 04 29 2d The discretion vested in the trier of fact is great and even vast so that an appellate court should rarely disturb an award of general damages Reasonable persons frequently disagree about the measure of general damages in a particular case It is only when the award is in either direction beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award Youn v Maritime Overseas Corp 623 So 1257 1261 La 1 cert 2d 993 denied 510 U 1114 114 S 1059 127 L 379 S Ct 2d Ed 1994 Only after making a finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award and then only to the extent of lowering it or raising it to the highest or lowest point which 8 is reasonably within the discretion afforded that court Coco v Winston Industries Inc 341 So 332 335 La 1977 2d With respect to Mr Gleber damages the trial court found as s follows Gleber Vincent testified that after the accident he experienced neck pain which radiated into his right shoulder pain in his right jaw and headache On October 6 2008 Gleber was examined by Dr Kennedy who diagnosed Gleber with a cervical and shoulder sprain along with muscle spasms strain Gleber underwent a course of physical therapy until November 25 2008 Dr Dyess offered a second opinion on November 12 2008 and he indicates that Gleber sustained an acute right sternocleidomastoid muscle strain an acute bilateral cervical paraspinous and trapezius muscle strain a possible C45 plus or minus C5 6 disc injury along with a possible rotator cuff injury of the right shoulder At trial Gleber testified that his shoulder and neck still bother him and that his physical therapy treatment was discontinued due to his wife mental health issues Gleber s stated that his family had to come first at that time and he suspended physical therapy treatment on November 25 2008 so that he could care for his three children further treatment after that date Gleber received no The Court finds that Vincent Gleber offered credible testimony describing both the injuries he suffered and his present physical state Taking into consideration the nature of s Gleber injuries the duration and extent of his treatment and his young age the Court finds that a general damage award of 00 000 20 is appropriate This determination is based on the general damage awards given in the following cases which concerned injuries similar to those suffered by Mr Gleber Mayeux v Selle 99498 La App 5 Cir H 747 So 99 10 2d 500 22 a fifteen month shoulder injury with residual problems McCraney v Beckman 97288 La App 5 Cir 1174 97 30 9 700 So 2d 1120 6 shoulder impact injury 250 cervical trapezius strain five months treatment Millican v Ponds 991052 La App 1 Cir 6 762 So 1188 00 23 2d 500 37 soft tissue injuries of six months lacerated arm headaches Williams v State 95 2456 La App 1 Cir 96 20 11 684 So 1 writ denied 963069 La 3 2d 018 97 7 689 So 1372 2d back right syndrome 000 25 soft tissue injuries to neck and low muscular injuries snapping scapula left Lucas v Bellsouth shoulder shoulder in Telecommunications Inc 2009 90 La App 3 Cir 5 09 6 10 So 887 3d 500 17 elderly woman treated for neck strain with physical therapy for just over three months I Based upon the record presented on appeal we are unable to say the trial court abused his much discretion in the general damage award to Vincent Gleber With respect to Vincent Rayburn sdamages the trial court found as follows According to the testimony and evidence introduced at trial Douglas Rayburn experienced pain in his face neck and shoulders following the accident Rayburn was examined by Dr Texada on October 8 2008 at which time xrays of the shoulder and elbow were ordered and injections were given in the shoulder and elbow Texada ordered physical therapy and a cervical MRI Later MRIs were performed on the cervical spine and the right shoulder The cervical spine MRI revealed a bulging of the C2 3 disc posteriorly in the right paracentral region The right shoulder MRI revealed a degenerative inflammatory change of the acromioclavicular joint and fluid in the glenohumeral joint and about the proximal biceps tendon Texada diagnosed Rayburn as having suffered shoulder impingement surgery was performed on February 13 2009 and Rayburn thereafter began physical therapy On September 17 2009 Dr Kevin Jackson examined Rayburn and diagnosed him as having suffered mild right L5 radiculopathy right ulnar neuropathy right C7 radiculopathy and bilateral carpal tunnel syndrome Most recently Dr Thomas Lyons examined Douglas Rayburn and diagnosed him as having suffered a right shoulder injury right shoulder mild adhesive capsulitis right shoulder subacromial bursitis right shoulder possible recurrent superior labium tear possible recurrent rotator cuff right shoulder symptomatic acromioclavicular joint and a right upper extremity ulnar neuropathy On February 26 2010 Lyons performed a right shoulder arthroscopy bursectomy and completed the dissection of the distal clavicle At trial Dr Lyons testified that overall Rayburn has progressed well since the surgery but that Rayburn will have difficulty with repetitive overhead usage of his upper extremities especially with significant weight Lyons explained that Rayburn scondition is such that the heavy parts of his job may still be a problem for him Lyons further assessed Rayburn anatomical disability s impairment as follows 610 impairment of the extremity and 5 6 of the whole body upper At trial Douglas Rayburn testified as to his physical injuries and the manner in which those injuries have affected all aspects of his life Most striking to the Court was the sincerity with which Rayburn described the feeling of importance his job at Superior AC gave him Having worked for Superior AC for two years prior to the accident Rayburn testified that his job gave him meaning and that he was the 10 solutions guy for both his boss and his coworkers Rayburn testified that he can no longer do the type of work he did before and that he plans to go back to school in order to learn a new trade Rayburn also described how his physical limitations prevent him from playing baseball with his daughter and going fishing and bow hunting Because the accident affected his right hand he has had to learn to compensate with his left hand Rayburn testified that the surgery Lyons performed did help him and it appears that he has better range of motion than he did before the surgery Rayburn further testified that he never experienced any serious prior injuries with the exception of hyper extending his knee when he slipped in his attic at home Other than occasional muscle strains associated with the physical aspects of his occupation Rayburn stated that he had no significant prior injuries Rayburn also stated that he did attempt to go back to work with Superior AC a week after the accident but he was not able to perform those tasks he performed previously His employer did attempt to modify his duties for a period ot time but ultimately was not able to pay Rayburn his regular salary as compensation for the work Rayburn was able physically to perform Before the accident Rayburn testified that he earned 00 000 1 each week plus 25 of the gross profits quarterly The agreement concerning the percentage of profits had according to Rayburn just been made prior to the accident Rayburn submitted complete tax returns for 2007 and 2008 The 2007 return shows an adjusted gross income of 20 00 031 car and truck expenses in the amount of 6 Gross 00 739 income was 39 The 2008 return shows an adjusted 00 688 gross income of 19 car and truck expenses in the 00 598 amount of 9 Gross income was 44 Based on 490 00 817 the reported earnings and the testimony presented at trial the Court finds that s Rayburn loss of income average is 00 000 28 annually for a period of 22 months and the amount of 51 is appropriate for plaintiff Rayburn lost wages 00 326 s through trial and further awards the amount of 56 for 00 000 future lost earnings The annual income loss is based on s Rayburn adjusted gross income plus his vehicle expenses since this was clearly a prerequisite to him while employed that he no longer enjoys The award for future lost earnings is based on the s Court finding that Rayburn will need approximately two years to complete vocational training in a trade where he is not required to lift and the Court expects that it will take him approximately one year to find employment thereafter With regard to a general damage award to Douglas Rayburn the Court finds the following cases instructive Ibrahim v Hawkins 2002 La App 1 Cir 2 845 0350 03 14 2d So 471 00 000 75 arthroscopic shoulder surgery fractured rib soft tissue injuries physical and psychological therapy Quinn v WalMart Stores Inc 34 La App 2 280 Cir 1 774 So 1093 writ denied 2001 0026 La 00 6 2 2d 01 9 3 786 So 7351 2d 000 150 shoulder labral tear arthroscopic surgery major rotator cuff tear probable future surgery Maeder v Williams 940754 La App 4 Cir 94 30 11 652 So 1005 writ denied 9431 La 3 2d 50 95 10 650 So 1177 2d 000 195 shoulder surgeries and another suggested fractured forearm surgery dislocated elbow and thumb residual shoulder and arm pain Burgess v C F Bean Corp 983072 La App 4 Cir 8 743 So 251 writ 99 1 2d denied 992728 La 11 750 So 9911 100 99 24 2d 000 arthroscopic shoulder and shoulder decompression surgery degenerative disc disease cervical radiculopathy chronic pain syndrome depression Accordingly the Court finds that a general damage award in the amount of 150 is 00 000 appropriate as to Douglas Rayburn Our review of the record presented on appeal leads us to conclude that the record supports the damage awards made by the trial court therefore we are unable to say the trial court abused his much discretion in the general damage award and awards for past and future lost earnings made to Douglas Rayburn s Intervenor Answer to the Appeal LCTA answered this appeal contending that it has had to continue paying indemnity and medical benefits on behalf of andor to Mr Rayburn because the judgment debtors Patricia Mayfield and the St Tammany Parish School Board suspensively appealed and have not paid the amounts owed to Mr Rayburn under the judgment Thus LCTA asserts additional amounts are owed under its intervention as the judgment amounts were for specific amounts paid prior to the date of trial LCTA further argues on appeal that this court should modify the judgment in its favor to award a full reimbursement of indemnity and medical benefits that is has paid on behalf of andor to Mr Rayburn less onethird for the attorney fees he has incurred in pursuing his claim to be paid out of the judgment rendered in Mr Rayburn favor Furthermore LCTA suggests that a remand to the trial s court would be appropriate for a determination of the exact amount of the 12 reimbursement to which it is entitled We agree and do hereby modify the trial court judgment to state in addition to the specific amounts awarded that LCTA is entitled to a reimbursement of indemnity and medical benefits that it has paid on behalf of andor to Mr Rayburn since the date of trial less one third for attorney fees Mr Rayburn has incurred subsequent to trial in connection with the appeal of the matter to be paid out of the judgment rendered in Mr Rayburn favor Furthermore we remand the matter to the s trial court for a determination of the exact amount of this additional reimbursement CONCLUSION For the reasons stated herein the judgment of the trial court is amended to award additional reimbursement to the Louisiana Commerce Trade Association Self Insurers Fund as stated herein and we remand the matter to the trial court for a determination of the reimbursement the judgment is affirmed as amended amount of this All costs of this appeal in the amount of 1 are to borne by Patricia Mayfield and the 94 874 St Tammany Parish School Board JUDGMENT AMENDED AFFIRMED AS AMENDED AND REMANDED 13