Burse v. Allstate Ins. Co.

Citations: 783 So. 2d 548; 2001 WL 300484Docket: 00-CA-1895

Court: Louisiana Court of Appeal; March 27, 2001; Louisiana; State Appellate Court

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In the case of Dana Burse v. Allstate Insurance Company and Chikako Nishimura, the Louisiana Court of Appeal reviewed a trial court's judgment that denied Burse's claim for damages following an automobile accident on December 12, 1997, where she was a passenger in a vehicle that rear-ended another car. The trial court concluded that Burse failed to prove her damages by a preponderance of the evidence, a finding the appellate court disagreed with, asserting that Burse sufficiently established her claim for damages.

The appeal stemmed from Burse's petition for damages filed on December 1, 1998, with a bench trial conducted on August 29, 2000. The trial court's dismissal of the suit was formalized in a written judgment on September 12, 2000, and Burse filed a motion for appeal on October 18, 2000.

The facts indicate that Chikako Nishimura, a driver covered by Allstate, was found to be entirely at fault for the accident, with Allstate admitting liability and policy coverage. Medical evidence included stipulations regarding Burse's treatment, notably from Dr. William C. Batherson, who treated Burse for a soft tissue injury to her neck following the accident. Dr. Batherson, who did not testify live but provided written reports, noted no pre-existing conditions and a good prognosis after a conservative treatment plan. Burse testified that she experienced no immediate pain post-accident but awoke in pain the following day, prompting her to seek medical attention. The appellate court ultimately awarded damages to Burse based on the evidence presented.

Burse was advised by Dr. Kilpatrick to use a heating pad for her injury, but after experiencing no relief, she began treatment with Dr. Batherson, noting immediate improvement. Despite this, she continued to experience stiffness intermittently until the trial, along with lingering aches requiring Advil. Burse attended physical therapy eight times between January and February 1998, and Dr. Batherson's bill amounted to $435.00. She lacked records from Mercy Care Medical Center and stated that Dr. Kilpatrick had no documentation of her treatment due to it being pro bono. At trial's end, the judge found that Burse failed to prove her case and ruled in favor of the defendant, particularly regarding damages. 

On appeal, Burse challenged the trial judge's ruling on damages, asserting that the judge erred. To recover damages, a plaintiff must prove all elements of their claim by a preponderance of the evidence. A stipulation made at trial confirmed that Dr. Batherson's treatment was related to the automobile accident, binding the court to this causation. The trial judge was also obligated to accept Burse's bill from Dr. Batherson as valid, confirming her special damages. Furthermore, Burse provided unrefuted testimony linking her pain to the accident, asserting no pre-existing condition contributed to her injuries. Thus, the evidence presented supported a claim for damages.

Burse is entitled to damages for her injury after the trial judge awarded none. The appellate court is responsible for determining a fair and just amount based on the evidence, without being constrained by the highest or lowest potential awards. Key factors in assessing damages include the severity and duration of the injury. Burse experienced shock immediately following the accident and sustained a soft tissue injury to her shoulder, which required treatment for about a month. Her physician noted ongoing suffering for over a year, and Burse reported ongoing occasional pain at the time of trial. The court awarded Burse $2,500.00 in general damages, along with $435.00 in stipulated medical expenses, totaling $2,935.00, plus interest from the date of the judicial demand and all trial court costs. The previous judgment is reversed, and the appellee will cover the costs of the appeal.