David L. Lance and Shelley W. Lance v. USAA Insurance Company--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-95-202-CV

DAVID L. LANCE AND SHELLEY W. LANCE,

Appellants

v.

USAA INSURANCE COMPANY,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 52024

DISSENTING OPINION

I dissent because I believe that the jury's failure to find damages for past physical pain is so against the great weight and preponderance of the evidence that it clearly demonstrates bias. See Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).

The jury determined that each party was 50% responsible for the collision of the vehicles. The jury then found that (1) Lance suffered no damages for physical pain and mental anguish or for lost earnings and (2) Shelly Lance suffered no damages for lost consortium. The jury was instructed in each question to consider both past and future damages. Without examining whether the jury acted within its authority in failing to find damages for physical pain in the future, for past or future mental anguish, for any lost earnings, or for past or future lost consortium, I believe that the evidence overwhelmingly shows that Lance suffered past physical pain, and thus the jury's failure to award any such damages demonstrates its bias against him. Id.

Lance testified without contradiction that as a result of the accident his left hand was bleeding and that glass had to be removed from it. He said that he hit the air bag, which was "not soft," and that his seat was "torqued totally out of kilter, twisting me from the front left down on impact, twisted, apparently my spinal area." The ambulance driver told him there was not enough room in the ambulance for him, so he asked the DPS officer at the scene to take him to the hospital. He said that during the ride to the hospital he "almost blacked out. I was not physically with it at the time." At the hospital, medical personnel removed the glass from his hand, gave him medication, ice packs, and a sling for his shoulder. He said that he wanted to be admitted to the hospital because he "was having problems in focusing and I was having problems with [a] headache at that time from my head." Nevertheless, he was treated and released.

Two days later Shelly took Lance to Darnell Medical Center, a military hospital at Fort Hood. There, they were told that he would not be treated because of the limited number of doctors available, all others having been assigned to the war in Iraq. He said that he was "losing consciousness." The next day Shelly took him to the Troop Medical Clinic at Fort Hood, where he was given "general medications for pain." On his second trip to the clinic, he was "given a temporary profile at that time to go home and rest."

He testified that he was treated by Dr. Guttikonda for a period of six months, but had to discontinue that after the personal injury protection allowance under his automobile insurance policy was exhausted. He said that he continued to take "a lot of Motrin, a lot of other over-the-counter pain relievers." He continued to take pain medication for at least nine more months, when the Veteran's Administration did a "series of tests to see about spinal injury and what was going on."

He said that the pain he was experiencing at the time of trial, which he attributed to the accident, included a burning in his lower back, pain in his neck, numbness in his left hand, burning in his right fingers and thumb, and a sciatic problem in his left leg. He said that he had "good days and bad days," but the pain had been "pretty consistent."

Lance further testified that his condition resulted in his eventual release from the Army, even though he wanted to stay on active duty.

Jerry Simmons, a vocational rehabilitation specialist who did an evaluation of Lance in 1995, testified that he reviewed Lance's medical records and that the series of tests that he ran yielded results that were consistent with those records. He said that Lance had an orthopedic disability that was causing him pain when he performed tasks like pushing, pulling, lifting, and carrying. On cross-examination, Simmons said that Dr. Guttikonda had not recorded any complaints of pain by Lance as early as June of 1991.

Shelly Lance testified that her husband had not complained of back pain or neck pain prior to the accident. She said that when she saw him in the emergency room in Waxahachie he had ice packs, blue marks and cuts on his hands, and that his face was swollen. She said that over the next two days he was very stiff, could not get his legs to straighten out completely, was very bruised, and his neck and face remained swollen. After visiting the Troop Clinic, he continued to have physical limitations. She said "he could not move around well. He had a very hard time walking. He was limping. He could not stand up straight. He could not sit down in a chair for any length of time. He had a hard time laying down. He could not sleep." During "several" return visits to the Troop Clinic, he continued to complain of pain. He received physical therapy during the six months he was treated by Dr. Guttikonda. At the end of that course of treatment, he was still having pain, she said. She also said that he "has never had a time where he was completely, totally out of pain," but it became "more manageable."

USAA's evidence about problems that Lance had had with his back and knee raised doubts about whether the injuries he received in the accident were the cause of his release from the military. Some evidence indicated that he stopped complaining of pain in June of 1991. No evidence, however, contradicted Lance's or Shelly's testimony about the amount of pain he had suffered as a result of the accident between the date of the accident and June of 1991. Thus, I conclude that the jury's refusal to award any sum for damages for past physical pain was contrary to the great weight and preponderance of the evidence and clearly demonstrates bias against Lance's claim. See id.; Hammett v. Zimmerman, 804 S.W.2d 663, 664 (Tex. App. Fort Worth 1991, no writ).

I would reverse the judgment and remand the cause for another trial. //

BILL VANCE

Justice

Opinion delivered and filed November 20, 1996

Publish