Hidovell Burke v. Zurich American Insurance Co.

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Hidovell Burke v. Zurich American Insurance Co.

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Case: 09-31086

Document: 00511184992

Page: 1

Date Filed: 07/26/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
July 26, 2010 N o . 09-31086 S u m m a r y Calendar Lyle W. Cayce Clerk

H I D O V E L L BURKE, P la in t iff - Appellant v. Z U R I C H AMERICAN INSURANCE COMPANY, D e fe n d a n t - Appellee

A p p e a l from the United States District Court fo r the Eastern District of Louisiana U S D C No. 2:08-CV-4268

B e fo r e BENAVIDES, PRADO, AND SOUTHWICK, Circuit Judges. P E R CURIAM:* P la in tiff-A p p e llan t Hidovell Burke (Burke) appeals the jury verdict arising o u t of his personal injury lawsuit. The jury found Burke to be 25% at fault for t h e automobile accident and determined that no compensable damages resulted fr o m this accident. For the reasons set forth below, we affirm. O n July 3, 2007, Burke and a friend were traveling on a one-way street in N e w Orleans. A truck owned by Advanced Broadband Systems Services, Inc.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Case: 09-31086

Document: 00511184992

Page: 2

Date Filed: 07/26/2010

No. 09-31086 (A d v a n c e d ) and operated by Joel Sayre (Sayre), was parked on one side of the s t r e e t to service cable equipment. After activating his truck's flashers and s t r o b e lights and checking his rear view mirror for traffic, Sayre opened his t r u c k 's door which was instantly struck by the mirror of Burke's van as Burke p a s s e d Sayre's truck. The van's mirror shattered but the cable truck sustained n o damage. Burke filed suit in state court against Advanced, Sayre, and Zurich A m e r ic a n Insurance Company (Zurich) alleging medical expenses from the a c c id e n t. Service was not administered on Advanced or Sayre, and Zurich r e m o v e d the matter to federal court. On October 5, 2009, the case was tried b e fo r e a jury who found Sayre to be 75% at fault for the accident and Burke to b e 25% at fault. In addition, the jury determined Burke failed to meet his b u r d e n of proof on damages by failing to show that his injuries were a result of t h is car accident. Following the jury verdict, Burke moved for judgment

n o tw it h s t a n d in g the verdict, which was denied by the district court. The court e n te r e d the jury verdict and awarded no damages to Burke. Burke appeals. O n motions for directed verdict and for judgment notwithstanding the v e r d ic t, we consider all evidence in the light most favorable to the party opposed t o the motion and review the reasonableness of the jury's verdict. Fed. R. Civ. P . 50; see also Guilbeau v. W.W. Henry Co., 85 F.3d 1149, 1161 (5th Cir. 1996) (c it a t io n s omitted). Granting the motion is proper if the facts and inferences p o in t so strongly in favor of one party that reasonable men could not arrive at a contrary verdict. See Guilbeau, 85 F.3d at 1161 (citations omitted). In this d iv e r s i t y case, Louisiana state law applies to the negligence issues. In a

p e r s o n a l injury suit under Louisiana law, a plaintiff must show that the medical e x p e n s e s he seeks to recover more probably than not were a result of the trauma s u ffe r e d from the accident at issue. See Angelle v. Delery, 833 So.2d 469, 476

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Case: 09-31086

Document: 00511184992

Page: 3

Date Filed: 07/26/2010

No. 09-31086 (L a . Ct. App. 2002) (citing White v. Longanecker, 637 So.2d 1213, 1218 (La. Ct. A p p . 1994)). B u r k e contends that the jury erred in finding him partially at fault for the a c c id e n t occurring and that the undisputed medical evidence linking his lower b a c k injuries and medical expenses to this automobile accident should have r e s u lt e d in an award for his medical expenses. Burke argues that his driving d o w n the middle of the one-way street in the lane normally driven when cars are p a r k e d on both sides of the street by definition means he was not at fault. On t h e issue of damages, Burke argues that the medical records of Dr. McKenna, D r . Howard, Dr. Stephenson, and Dr. Meyers provides legally sufficient proof to t ie his complained about injuries to the accident with Sayre such that the jury e r r e d for failing to award damages for his medical expenses, pain, and suffering. We disagree. T h e evidence and facts support the jury's apportionment of fault. Burke's t e s t im o n y and the video-deposition testimony of Syare established that no cars w e r e parked on the left side of the street during the accident nor any cars on the r ig h t side of the street in proximity to where the accident occurred. Burke stated t h a t he saw the big utility truck as he was driving 20 to 25 mph down the 25 m p h residential street. Nonetheless, Burke asserted it was reasonable to

c o n t i n u e driving in the middle of the street instead of further away from the fla s h in g utility truck. Sayre described in detail the normal repair procedures, t h e size of the truck, the utility bins hanging over each side of the truck in the b a c k , and the mounted boom and tool boxes. Sayre testified that the four way fla s h e r s and the strobe lights were continually left on during their repairs and t h a t he parked the truck right alongside the street as one would a normal v e h ic le . Sayre stated that he checked his rear view mirror first, and then opened h is door approximately 10 inches when the impact occurred. Zurich contended t h a t Burke was partially at fault for his van's mirror colliding with Sayre's door 3

Case: 09-31086

Document: 00511184992

Page: 4

Date Filed: 07/26/2010

No. 09-31086 b y driving so close to the utility truck when no cars were parked on the left side o f the street when Burke could easily have steered left or slowed down when p a s s in g the utility truck. Zurich suggested that Burke was not driving in the m id d le of the road but closer to the right hand side of the street for Burke's m ir r o r to collide with Sayre's door, especially since the door had only been o p e n e d a few inches. Under the evidence presented, we cannot say the jury was u n r e a s o n a b le in holding Burke 25% at fault for the accident in light of his' and S a y r e 's testimony that established no cars were parked on either side of the s t r e e t and that when Burke saw the parked utility truck with its flashers on, he n e ith e r slowed down nor moved to the left when approaching and passing S a y r e 's truck. More significantly and fatal to Burke's appeal, the evidence and facts also s u p p o r t the jury's decision to award no damages. At the trial, the jury heard fr o m a variety of Burke's doctors that had treated him during the time following t h e accident. Burke admitted that he had previously suffered a work-related b a c k injury in 1996 and that he was involved in a different automobile accident in 2001. Zurich asked the jury to focus on the testimony by Burke's medical e x p e r t that the current injury area was without "medical significance," that the o n ly "clinically significant" area was the back area from previous injuries, and t h a t the lack of references to Burke's prior back injuries in his and Burke's other d o c t o r s ' examinations seriously questioned the claim that a causal relationship e x is te d . Applying the standards set forth in this opinion and considering all the e v id e n c e in the record, we hold that the district court properly denied Burke's m o t io n for judgment notwithstanding the verdict. Accordingly, the judgment of the district court is AFFIRMED.

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