Betty Jo Vaughn VS Liberty Mutual Insurance Company, et al
Annotate this Case
Download PDF
NOT DESIGNATED FOR PUBLICATION STATE UF LOUISIANA C` OURT OF APPBAL FI ST C' IRC, UIT NO. 2013 CA 0678 BETTY JO VAUGHN VERSUS I 4 n,' LIBERTY MUTUAL INSURANCE COMPANY, ET AL L Jud g ment Rendered: DEC 2 7 2013 t On Appeal from the 19th Judicial District Court, In and for the Parish of East Baton Rouge, Stata of Louisiana Trial Court No. 584,559 Honorable Todd Hernandez, Judge Presiding Willie G. Johnson, Jr. Attorneys for Plaintiftf-Appellant, Baton Rouge, LA Betty Jo Vaughn Chad A. Aguillard New Roads, LA Aaron J. Chaisson, Jr. Attorney for Defendant- Appellee, Baton Rouge, LA State Farnn Mutual Automobile Insurance Company x BEFORE: Ki. JHN, HIGGINBOTHAM, AND THERIOT, JJ. ffiGGINBOTHAM, J. Plaintiff, Betty 7o Vaughn, appeals the trial court' s dismissal of her uninsured/underinsured motorist claim against defendant, State Farm Mutual Automobile Insurance Company. For the following reasons, we affirm. BACKGROUND On July 7, 2009, Vaughn' s vehicle was hit from behind by a driver who was insured by Liberty Mutual Insurance Company. Because Vaughn suffered neck and back injuries in the accident, she brought suit far damages against Liberty Mutual, the other driver, and her own insurer, State Farm. Liberty Mutual did not dispute liability regarding its insured; thus a settlement was eventually reached where Vaughn received Liberty Mutual' s $ 50, 000. 00 policy limits. Liberty Mutual and its insured were dismissed from the lawsuit on October 3, 20ll. After settling with Liberty Mutual, Vaughn pursued her claim for additional damages under State Farm' s $ 25, 000. 00 iJN1 coverage, and for penalties and attorney fees due to State Farm' s alleged bad faith handling of her LJM claim pursuant to La. R.S. 22: 1892.i The current dispute between Vaughn and State Farm centers on causation and the extent of Vaughn' s injuries. Vaughn' s treating orthopedic surgeon, Dr. Joseph B. Boucree, Jr., reported four months after the accident that Vaughn had e austed reasonable conservative treatment for her neck pain associated with the accident, including physical therapy. Dr. Boucree recommended that Vaugl n undergo an anterior cervical discectomy and fusion surgical procedure for a herniated cervical disc at the CS- C6 level. At the time of the surgical recommendation on November 20, 2009, State Farm was not yet a party to the lawsuit; it was added as a defendant on January 27, 2010. Shortly after State Farm filed an answer to Vaughn' s lawsuit and propounded written discovery requests to Vaughn, State Farm learned about the surgical recommendation on April 26, 2010. State Farm tendered $ 1, 000. 00 to Vaughn under the medical payments coverage of its policy; consequently, medical payments are not at issue in this appeal. 2 At that time, Liberty Mutual had not been dismissed from the lawsuit. State Fann also discovered that Vaughn had been involved in a prior accident that had resulted in injuries to her neck and back. Before settling with Vaughn, Liberty Mutual requested that Vaughn submit to an independent medical exaznination on_ October 11, 2010, by orthopedic surgeon, Dr. Larry G, Ferachi. After evaluating Vaughn' s condition, Dr. Ferachi disagreed with Dr. Boucree' s recommendation. surgical Instead, Dr. Ferachi opined that Vaughn would benefit from cervical epidural steroid injections, a nerve conduction study, and three- to- five months of physical therapy to treat her cervical and lumbar strain that she had sustained in the accident. Dr. Ferachi also disagreed with Dr. Boucree' s conclusion that Vaughn' s cervical disc at CS- C6 was hemiated. Rather, Dr. Ferachi agreed with the conclusion of the neuroradiologist, Dr. Charles S. Greeson, that Vaughn' s CS- C6 cervical disc was bulging, and definitely was not herniated or causing any nerve impingement. Based on the conflicting medical reports regarding the extent of Vaughn' s injuries and her lack of inedical treatment for a five-month period after Dr. Boucree recommended surgery, State Farm' s adjuster determined that Vaughn was not entitled to UM benefits. including the approximate State Farm' s adjuster valued Vaughn' s entire claim, $ 6, OOOAO in medical expenses, to be within the underlying Liberty Mutual policy limits of$ 50, 000.00. As a result, State Farm did not tender any UM payments to Vaughn. Vaughn maintains that State Farm was in bad faith for not tendering the UM benefits. The issues of causation, the extent of Vaughn' s injuries, and whether additional damages were due, along with State Farm' s alleged bad faith handling of Vaughn s iJM claim proceeded to a bench trial on May 8, 2012. At the trial, State Farm objected to the admissibility of Dr. Boucree' s deposition in lieu of live testimony, arguing that the deposition was highly prejudicial to State Farm because 3 State Farm' s counsel was denied the opportunity to conduct a cross- examination of Dr. Boucree at the deposition ttha2 was inten ied to be used at triai. The trial court sustained State Farm' s objection, ruling that the deposition was not admissible. Vaughn objected to the trial court' s rulirig and proffered Dr. Boucree' s deposition. The trial court also ruled that the medical e idenee did not support Dr. Boucree' s recommendation f r surgery and future medical treatment, conclud'ang instead that the evidence showed Vaughn had a degenerarive condition in her neck that had been aggravated by the accident, but that there were no disc herniations or nerve root impingements requiring surgery. Based upon a totality of the evidence, the trial court found that Vaughn was justly and fairly compensated for her damages from Liberty Mutual' s underlying liability insurance coverage and that State Farm had not acted arbitrarily and capriciously when handling Vaughds UM claim. The trial court signed a judgznent in favor of State Farm on December 6, 2012, dismissing Vaughn' s LJM claim for damages, penalties, and attorney fees. Vaugl n appealed, assigning three errors: ( 1) the trial court erred in sustaining State Farm' s objection to admission of Dr. Boucree' s trial deposition; ( 2) the trial court ened in ruling that Vaughn had not met her burden of proving that State Farm failed to tender iJM payments within thirry days of receiving a satisfactory proof of loss; and ( 3) the trial court erred in faiiing to assess additional damages, reasonable attorney fees, and penalties due to State Fann' s bad faith and failure to tender i 1V1 payments. DISCUSSION Evidentiarp Rulin A ruling on the admissibility of evidence is a quesrion of law and is not subject to the manifest error standard of review. Trascher v. Territo, 2011- 2093 La. S/ 8/ 12), 89 So3d 357, 362. A party may not complain on appeal about an evidentiary ruling in the trial court unless the trial judge was given the opportunity 4 to avoid the perceived error, and the ruling " affected" a " substantial right" of the party. Id. The trial court has much discretion in determining whether to allow the use of deposition testimony at trial, and its decision will not be disturbed upon review in the absence of an abuse of discretion. that State Through Dept. of Social Serv ces Support Enforcement Services in Interest of Bord lon v. Guichard, 94- 1795 ( La. App. lst Cir. SI5195), 655 So.2d 1371, 1378, writ denied, 95- 1405 ( La. 9/ 15/ 95), 660 So.2d 454. Vaughn maintains that the trial court erred in refusing to admit the trial deposition of Dr. Boucree, because State Farm voluntarily waived its right to cross- examine the doctor when State Farm chose to not pay for the additional time required for the cross- examination. We have reviewed the proffered deposition testimony of Dr. Boucree, and we find that the trial court did not abuse its discretion in refusing to admit the deposition into evidence. Vaughn' s counsel halted Dr. Boucree' s deposition at the end of his direct examination, the cost of which had been prepaid by Vaughn. Vaughn' s counsel was unwilling to pay for more of Dr. Boucree' s time so that State Farm could cross- examine the witness. Because State Farm was not willing to pay for a continuation of a deposition that was conducted by the opposing party, the deposition abruptly ended without State Farm' s counsel accomplishing any cross- examination of Dr. Boucree. Where an opposing party necer has the opportunity to cross- examine the deponent, the opposing party' s fundarnental Trascher, 89 So3d at 362. right to cross- examination is violated. See Nevertheless, Vaughn claims that the deposition is admissible because the parties stipulated that the deposition was being taken in lieu of Dr. Boucree' s live expert testimony at trial. We disagree with Vaughn' s argtunent. Since State Farm did not have the opportunity to cross- examine and test the value of Dr. Boucree' s expert testimony, the deposition was not competent 5 evidence for use at trial. When Vaughn' s attomey stopped the deposition after completing his direct examination. but then refused to pay for any more of Dr. Boucree' s rime, counsel for State Farm objected as to the admissibility of the deposition testimony without the opportunity to cross- examine the witness. State Farm cannot be expected to pay fbr the right to cross- examine Vaughr' s expert witness in this case See La. Code Civ, P. art. 1634; Harry Bourg Corp. v. Punch, 625 So. 2d 735, 737 ( La. 809, 8ll (La. grounds, App. when App. 2d Cir. 1991). Vaughn offered lst Cir. 1993); Smith v. Scott, 577 So. 2d State Farm objected again at trial, on the same the deposition into evidence. The party against whom a deposition is sought to be used must have been afforded a meaningful opportunity to fully cross- examine the deponent. See La. Code Civ. P. art. 1450; Trascher, 89 So3d at 363. Clearly, if a witness provides testimony at trial but the opposing party never is given the opportunity to cross- examine the witness, there would be grounds to strike the testimony given. Id., 89 So. 3d at 364. Because State Farm would not have called Dr. Boucree as a witness at trial, and State Farm was effectively denied the opportunity for full cross- examination of Dr. Boucree during the trial deposition, the testimony is inadmissible. This assignment of error is without merit. Bad Faith - The determination of whether au insurer acted in bad faith turns on the facts and circumstances of each case. As this determination is largely factual, great deference must be accorded the fact finder. Richardson v. GEICO Indemnity Co., 2010- 0208 ( La. App, lst Cir. 9/ 10/ 10), 48 So e3d 3 07, 314, writ denied, 20102473 ( La. 12/ 17/ 10), 51 So. 3d 7. Whether an insurer' s handling of a claim is arbitrary and capricious is a factual determination that will not be disturbed in the absence of manifest error. Fontana v. Louisiana Sheriffs' Auto. Risk Program, 96- 2752 ( La. App. lst Cir. 6/ 20/ 97), 697 So. 2d 1037, 1039. 6 In Stobart v. State through Dept. of Transp. and Development, 617 So. 2d 880, 882 ( La. 1993), the Supreme Court set forth the now well- settled twopart test for the reversal of a fact finder' s determinations: ( 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). Id. On appeal, the issue to be resolved is not whether the trial court was right ar wrong, but whether the fact finder' s conclusion was a reasonable one. Id. Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed review upon where in the testimony. conflict exists See Rosell v. ESCO, 549 So. 2d 840, 844 ( La. 1989). Whether an insurer' s refusal to pay is arbitrary, capricious, or without probable cause depends on the facts known to the insurer at the time of its action. Reed v. State Farm Mut. Auto Ins. Co., 2003- 0107 ( La. 10/ 21/ 03), 857 So. 2d 1012, 1021. Statutory penalties are inappropriate when the insurer has a reasonable basis to defend the claim and acts in good- faith reliance on that defense, especially when there is a reasonable and legitimate question or disagreement as to the extent and causation of a claim. Id. When reasonable doubt exists, bad faith should not be infened from an insurer' s failure to pay within the statutory time limits. Id. The evidence in the record reasonably supports the trial court' s finding that State Farm had legitimate reasons for defending the UM claim without making a tender of the UM limits. The medical evidence revealed a substantial disagreement among the medical experts as to the extent of Vaughn' s injuries sustained in the accident and whether surgery, as opposed to more conservative treatment, was necessary to resolve Vaughn' s neck pain. As such, State Farm did not arbitrarily and capriciously handle Vaughn' s UM 7 claim. Considering the record in its entirety, we find the trial court reasonably concluded that State Farm was not presented with a satisfactory proof of loss that fully demonstrated that Vaughn' s claim would undisputedly exceed the value of the underlying coverage provided by Liberty Mutual. This assignment of error ia without mexite Dama es, Attornev Fees, and PenaYties = The medical evidence in the record reasonably supports the trial court' s factual determination that Vaughn was fairly compensated by the underlying insurer for an injury that did not require surgery and would have been resolved after three- to- five months of consistent conservative treatment. We find no manifest errar in the trial court' s reasonable inferences of fact and conclusions that the parties had a legitimate disagreement and there was conflict in the medical evidence as to the eXtent of Vaughn' s injuries. See Stobart, 617 So. 2d at 882. Thus, Vaughn is not entitled to additional damages, attorney fees, ar penalties. This assignment of error is without marit. CONCLUSION For the assigned reasons, we affirm the trial court' s judgment in favor of defendant- appellee, State Farm Mutual Automobile Insurance Company. All costs of this appeai are assessed to plaintiff-appellant, Betty Jo Vaughn. AFFIRMED. 8
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
