Dunwoodie McDuffie, Jr. and Cheryl McDuffie Versus State Farm Mutual Automobile Company, Jacob A. Mullins, Heidi King and Lieren Gros ( 2019 )

DUNWOODIE MCDUFFIE, JR. AND CHERYL NO. 19-CA-344
MCDUFFIE
FIFTH CIRCUIT
VERSUS
COURT OF APPEAL
STATE FARM MUTUAL AUTOMOBILE
COMPANY, JACOB A. MULLINS, HEIDI STATE OF LOUISIANA
KING AND LIEREN GROS
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 762-955, DIVISION "M"
HONORABLE HENRY G. SULLIVAN, JR., JUDGE PRESIDING
December 30, 2019
ROBERT A. CHAISSON
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Robert A. Chaisson, and John J. Molaison, Jr.
AFFIRMED
RAC
FHW
JJM
COUNSEL FOR PLAINTIFF/APPELLANT,
DUNWOODIE MCDUFFIE, JR. AND CHERYL MCDUFFIE
Wayne M. LeBlanc
COUNSEL FOR DEFENDANT/APPELLEE,
STATE FARM MUTUAL AUTOMOBILE COMPANY AND JACOB A.
MULLINS
Stephen C. Resor
Amy Dunn Hotard
Stephannie M. England
CHAISSON, J.
In this personal injury case arising out of an automobile accident,
Dunwoodie McDuffie, Jr. and his wife, Cheryl McDuffie, appeal a judgment of the
trial court that awarded Mr. McDuffie $5,210 against Jacob Mullins and State
Farm Mutual Automobile Insurance Company (“State Farm”), and dismissed Mrs.
McDuffie’s claim for loss of consortium with prejudice.1 In his appeal, Mr.
McDuffie raises issues regarding the trial court’s findings regarding the extent of
his injuries and the alleged inadequacy of the damage award for his injuries. For
the reasons that follow, we affirm the judgment of the trial court.
FACTS AND PROCEDURAL HISTORY
On August 3, 2015, while stopped in traffic on I-10 in East Baton Rouge
Parish, Mr. McDuffie’s Ford F-150 was rear-ended by a Nissan Xterra SUV driven
by Jacob Mullins and insured by State Farm. On July 15, 2016, the McDuffies
filed a suit for damages against Mr. Mullins and State Farm for injuries allegedly
sustained by Mr. McDuffie in the accident.2,3
In their lawsuit, the McDuffies alleged that the sole and proximate cause of
the accident was the negligence of the defendants. They also alleged that Mr.
McDuffie sustained injuries in the accident “to his shoulders, neck and back
causing him pain, interference with his normal activities in addition to medical
expenses, loss wages and general damages in excess of $50,000.” They further
1
Mrs. McDuffie did not appear at the trial of this matter to pursue her claim. Although an appeal was
filed on her behalf in the trial court, no brief has been filed on her behalf in this Court and no alleged
errors regarding the trial court’s dismissal of her claim for loss of consortium have been assigned before
this Court. This opinion therefore does not discuss or analyze that part of the trial court’s judgment that
dismisses her claim.
2
The McDuffies’ suit also named Heidi King and Lieren Gros, the owners of the Nissan Xterra SUV, as
defendants; however, at the commencement of trial, the McDuffies dismissed their claims against Ms.
King and Ms. Gros with prejudice.
3
State Farm was named as a defendant in this suit both as the insurer of the vehicle driven by Mr. Mullins
and as the underinsured motorist insurer on a personal liability policy carried by Mr. McDuffie.
19-CA-344 1
alleged that as a result of the injuries to Mr. McDuffie, his wife Cheryl suffered “a
loss of companionship and consortium.”
After the McDuffies stipulated that their damages in this matter did not
exceed $50,000, the matter proceeded to a judge trial on February 27, 2019. At
trial, Mr. McDuffie asserted that, although he had pre-existing injuries to his right
shoulder, as a result of this accident he sustained a tear to his right rotator cuff
involving the supraspinatus tendon, which was an acute, new injury. In response,
defendants maintained that this was a slow speed, low-impact collision in which
Mr. McDuffie either suffered no injuries or in which he merely aggravated a pre-
existing injury to his right shoulder with treatment for that injury over a two month
period.
After the receipt of post-trial memorandum from both parties, the trial court
rendered judgment on April 8, 2019, in favor of Mr. McDuffie for $210 in special
damages and $5,000 in general damages, plus court costs and interest from the date
of judicial demand until paid. Because Mrs. McDuffie failed to appear at trial to
pursue her claim, the trial court also dismissed her loss of consortium claim.
In response to a request for written reason, the trial judge issued reasons for
judgment indicating that “[l]iability was not disputed” and that the “evidence and
testimony at trial indicated a relatively minor low-impact accident.” The trial
judge further found that as a result of the accident Mr. McDuffie sustained an
“aggravation of a pre-existing condition which increased Plaintiff’s pain and
discomfort for a limited period of time.” He therefore awarded Mr. McDuffie
$210 in special damages, “half the cost of two visits to Dr. Cazale in which he
complained of right should pain, although his primary concern was recorded as left
ankle pain,” and further awarded him “approximately two months of pain and
suffering, even though he reported only minor pain and a subsequent fall on
September 21, 2015.”
19-CA-344 2
It is from the April 8, 2019 judgment that the McDuffies now appeal. In his
appeal, Mr. McDuffie raises three assignments of error:
1. The Trial Court erred in finding the injury suffered by
Dunwoodie McDuffie to his right shoulder was an “aggravation of
a pre-existing condition which increased Plaintiffs (sic) pain and
discomfort for a limited period of time,” that period being a
duration of two months.
2. The Trial Court erred in finding Dunwoodie McDuffie, Jr.
suffered from a “subsequent fall” on September 21, 2015.
3. The Trial Court erred in awarding only $210.00 in special
damages, the cost of one half of two office visits to Dr. Cazale,
and only $5,000.00 in general damages which represents
“approximately two months of pain and suffering.”
DISCUSSION
On appeal, the conclusions of the factfinder may not be disturbed by the
reviewing court unless they are manifestly erroneous or clearly wrong. Estes v.
Wal-Mart Stores, Inc., 01-289 (La. App. 5 Cir. 10/17/01), 800 So.2d 1018, 1022.
The issue to be resolved on review is not whether the factfinder was right or
wrong, but whether the conclusion was a reasonable one. Id. Where there is a
conflict in the testimony, reasonable evaluations of credibility and reasonable
inferences of fact should not be disturbed upon review, even though the appellate
court may feel that its own evaluations and inferences are as reasonable. Simmons
v. Jackson, 18-141 (La. App. 5 Cir. 12/19/18), 262 So.3d 995, 998. Where there
are two views of the evidence, the factfinder’s choice between them cannot be
manifestly erroneous or clearly wrong. Id. When findings are based on
determinations regarding the credibility of witnesses, the manifest error – clearly
wrong standard demands great deference to the trier of fact’s findings; for only the
factfinder can be aware of the variations of demeanor and tone of voice that bear so
heavily on the listener’s understanding and belief in what is said. Id.In his first assignment of error, Mr. McDuffie argues that the trial court
manifestly erred in finding the injury he suffered was an “aggravation of a pre-
19-CA-344 3
existing condition which increased Plaintiffs (sic) pain and discomfort for a limited
period of time,” that period being a duration of two months. At trial, the court
heard testimony about the accident from Mr. McDuffie, Mr. Mullins, and Brice
McDuffie, who claims to have been a passenger in the truck at the time of the
accident, though he is not listed as a passenger in the accident report and Mr.
Mullins claims to have never seen him there. Mr. McDuffie testified that he did
not seek immediate medical treatment following the accident. The court also saw
photographs of the two vehicles involved in the accident which show only minor
damage to the vehicles.
With regard to medical evidence, the court considered the deposition
testimony of Mr. McDuffie’s two treating physicians, Dr. Felix Savoie and Dr.
John Cazale, the latter by selected excerpts from discovery in another lawsuit filed
by Mr. McDuffie, Dunwoodie McDuffie, Jr. et al v. Hillstone Restaurant Group,
Inc. et al., USDC Case No. 2:16-cv-06733, wherein Mr. McDuffie claims he
sustained injuries to his ankle, shoulder, neck, back, and head as a result of a slip-
and-fall at Houston’s restaurant on May 27, 2015. Both doctors testified regarding
Mr. McDuffie’s treatment and injuries to his shoulders both before and after the
August 3, 2015 automobile accident. Mr. McDuffie was treated on June 8, 2015,
for shoulder pain relating to a purported slip-and-fall as well as a sprained ankle.
He was evaluated again by Dr. Cazale on August 4 at an appointment scheduled
prior to the occurrence of the automobile accident. At that time, Mr. McDuffie
reported continued ankle pain and pain in his right shoulder following a vehicle
collision. On August 28, 2015, Mr. McDuffie continued to treat with Dr. Cazale
for his ankle pain, and an MRI taken of his shoulders on August 21, 2015, was
reviewed which revealed a tendon tear in his right shoulder. On September 21,
2015, Mr. McDuffie met with Dr. Savoie for left and right shoulder pain. At that
time, he rated his pain as a 1 out of 10 on the pain scale and claimed that he injured
19-CA-344 4
his shoulder when he slipped and fell at Houston’s. Mr. McDuffie made no
reference to the automobile accident, and Dr. Savoie testified that he was unaware
Mr. McDuffie had been in an automobile accident until his trial deposition in
February of 2019. Following the September 21, 2015 office visit with Dr. Savoie,
Mr. McDuffie did not seek medical attention for his right shoulder until a
February 1, 2016 visit with Dr. Cazale. He continued to treat with Dr. Cazale for
four months for other orthopedic issues but without any complaints of right
shoulder pain.
In addition to Mr. McDuffie’s own testimony regarding his May of 2015
slip-and-fall at Houston’s restaurant, the court also considered the deposition
testimony and evidence of Mr. McDuffie’s long history of injury and shoulder
treatments going back to 2010.
Upon review of the evidence in the record, we find that the trial court was
not manifestly erroneous in its determination that Mr. McDuffie’s injury was an
aggravation of a pre-existing condition which increased Mr. McDuffie’s pain and
discomfort for a limited period of time.
We turn next to appellant’s second assignment of error: that the trial court
erred in its written reasons for judgment in finding that Mr. McDuffie suffered a
“subsequent fall” on September 21, 2015.
A judgment and reasons for judgment are two separate and distinct
documents. La. C.C.P. art. 1918; Dufresne v. Dufresne, 10-963 (La. App. 5 Cir.
5/10/11), 65 So.3d 749, 754. Appeals are taken from the trial court’s final
judgment, not the written reasons for judgment. Knight v. Magri, 15-543 (La. App.
5 Cir. 2/24/16), 188 So.3d 311, 314, citing Aderholt v. Metro Sec., Inc., 14-880
(La. App. 5 Cir. 3/25/15), 169 So.3d 635, 643. Reasons for judgment set forth the
basis for the court’s holding and are not binding. Metairie Carnival Club, Inc. v.
Lundgren, 12-246 (La. App. 5 Cir. 10/20/12), 102 So.3d 999, 1002. Where the
19-CA-344 5
trial court’s reasons for judgment are flawed, but the judgment is correct, the
judgment controls. Dileo v. Horn, 15-684 (La. App. 5 Cir. 3/16/16), 189 So.3d
1189, 1208.
Upon review, we find no evidence in the record to support the trial court’s
statement in the written reasons for judgment regarding a “subsequent fall” on
September 21, 2015. As mentioned, the record does include deposition testimony
from one of Mr. McDuffie’s treating orthopedic surgeons, Dr. Savoie, who stated
that he evaluated Mr. McDuffie on September 21, 2015, a few weeks following the
automobile accident, and at that time, Mr. McDuffie stated that his shoulder pain
was 1 out of 10 and claimed that he felt acute pain in his shoulder following a trip
and fall at Houston’s restaurant weeks prior to the September 21, 2015 visit. At
that time, Mr. McDuffie made no reference whatsoever to the August 3, 2015
automobile accident. To the extent that the trial court’s reasons for judgment may
be read as postulating a “subsequent fall” which may have occurred after the
August 3, 2015 automobile accident, there is no evidentiary support for such a fall
in the record. However, to the extent the trial court relied on the doctor’s
testimony of the September 21, 2015 evaluation and the information relayed by
Mr. McDuffie at that time concerning the fall as the source of his pain, rather than
the automobile accident, the trial court’s reasonable assumption and reliance on Dr.
Savoie’s testimony is not manifestly erroneous. Regardless, we find that the
evidence in the record provides ample support for the trial court’s determination
regarding the nature of the injury to Mr. McDuffie’s right shoulder and the extent
of that injury.
We therefore turn our attention to Mr. McDuffie’s third and final assignment
of error, which questions the adequacy of the trial court’s determinations regarding
the damages awarded.
19-CA-344 6
On appellate review of general damage awards, the court must accord much
discretion to the trial court judge. Augillard v. Gaspard, 01-1333 (La. App. 5 Cir.
5/30/02), 820 So.2d 1177, 1181. The role of an appellate court in reviewing
awards of general damages is not to decide what it considers to be an appropriate
award, but rather to review the exercise of discretion by the trial court. Id.Because discretion vested in the trial court is “great,” and even vast, an appellate
court should rarely disturb an award of general damages. Id. 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. Id.As discussed above, the trial court reasonably concluded from the evidence
presented that the August 3, 2015 automobile accident caused Mr. McDuffie an
aggravation of a pre-existing condition resulting in an increase in pain and
discomfort for a limited period of time. Accordingly, we find no abuse of the trial
court’s vast discretion regarding the awards of $210 in special damages and $5,000
in general damages to Mr. McDuffie.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court awarding
Mr. McDuffie $210 in special damages and $5,000 in general damages, plus court
costs and interest from the date of judicial demand until paid. Each party shall
bear his/its own costs of this appeal.
AFFIRMED
19-CA-344 7
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 30, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-CA-344
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE HENRY G. SULLIVAN, JR. (DISTRICT JUDGE)
WAYNE M. LEBLANC (APPELLANT) STEPHANNIE M. ENGLAND (APPELLEE)
MAILED
STEPHEN C. RESOR (APPELLEE)
AMY DUNN HOTARD (APPELLEE)
MARCELLE P. MOULEDOUX (APPELLEE)
ATTORNEYS AT LAW
365 CANAL STREET
SUITE 1710
NEW ORLEANS, LA 70130