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Leday v. Safeway Ins. Co. of LA.11/17/2004
REVERSED AND RENDERED.
In this personal injury case involving an underinsured motorist claim, appellant, Safeway Insurance Company (Safeway), asserts that the trial court should have granted its Motion for Involuntary Dismissal following the close of plaintiff's case. Safeway argues that plaintiff, Leslie Leday, did not carry her burden of proving that the underlying insurance company had paid her to the fullest extent of its policy limits, thereby requiring Safeway to pay the balance of her damages under the Uninsured/Underinsured Motorist (UM) provision in her policy with Safeway. We reverse the trial court's decision not to dismiss the claim.
I. ISSUES
Safeway's appeal sets forth three issues for our review. First, Safeway argues that the trial court erred in denying its Motion for Involuntary Dismissal based on its assertion that Leslie Leday failed to prove adequately the tortfeasor's uninsured or underinsured status. Second, Safeway asserts that the trial court abused its discretion in awarding Leday $10,000.00 in general damages, maintaining that her injuries did not warrant this additional award. Third, Safeway requests credit for the $1,000.00 payment it made to Leday for medical expenses.
Additionally, Safeway filed a Motion to Strike certain documents appended by Leday to her appellate brief.
II. FACTS
Leday was in a car accident on December 17, 2001. Ricky Savant, driving a car that belonged to Wayne Meyer and insured by Imperial Fire and Casualty Insurance Company (Imperial), struck Leday's car, injuring her. She settled with Imperial and released the car's owner and driver. Leday then sued her insurance provider, Safeway, for excess damages. Leday argued that Imperial, the car owner's liability insurer, had paid its full policy limits to her; thus, she was entitled to further damages under the UM portion of her policy with Safeway because her damages exceeded the amount paid under Imperial's policy limits. Safeway paid Leday $1,000.00 under the medical payments clause of her policy, but denied that it was obligated to pay anything more than what Leday had already received through Imperial.
In the meantime, Leday had visited a doctor nine times between December 21, 2001 and September 16, 2002, incurring medical expenses in the amount of $2,776.76. Her doctor diagnosed various injuries and prescribed several medications and therapeutic treatments, including physical therapy. She was fitted with and continues to wear a wrist brace. Although her original doctor placed a cast on her right wrist to treat a compression fracture, her orthopedist did not believe she had suffered an actual fracture of her wrist. Regardless of the difference of opinion between the two doctors regarding the existence of a fracture, Safeway conceded in court that the treatment would have been identical for both injuries. Leday testified at trial that she still suffers pain, frequent headaches, and difficulties with her right shoulder and wrist, and that her impaired mobility restricts her ability to perform everyday tasks, including caring for her young daughter, driving, and cleaning. Leday is employed as a bus driver, and she testified that the injury made it difficult for her to perform her job .
At trial, Safeway argued that Leday had proved neither the tortfeasor's uninsured or underinsured status. She offered no evidence that the Imperial policy held by the car's owner was capped at $10,000.00, and no evidence that there was no other source of insurance available to pay her claim, either through additional insurance held by the car owner, or insurance held by the tortfeasor. Safeway moved for an involuntary dismissal of
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