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Kottle v. Provident Life And Accident Insurance Co.12/15/2000
hat Dr. Islam was Dr. Kottle's treating psychiatrist, and that Dr. Kottle underwent at least two unsuccessful attempts at pharmacological therapy, choosing not to undergo further drug therapy due to health risks. Furthermore, the trial court found that in March, 1996, Dr. Kottle's "panic attacks became so severe and debilitating that he was virtually unable to effectively treat patients. Compelled to act in the best interest of his patients, Dr. Kottle left the practice of nephrology. . . ."
Based on these findings of fact, the trial court concluded that Dr. Kottle was "unable to perform the substantial and material duties of his occupation at the time he left his practice on March 26, 1996, at the time he filed the claim for disability on March 13, 1997, and at the time of trial." In conjunction with this finding, the trial court also concluded that on each of the above dates, Dr. Kottle was "receiving care by a physician which was appropriate for the condition causing the disability."
Discussion
I.
Four of Provident's assignments of error concern the trial court's interpretation of the insurance contract, and its factual conclusions regarding Dr. Kottle's disability and the appropriateness of the medical care that he has received. Provident does not assert that its policy is ambiguous on these issues. We agree and will construe the policy which represents the law between these parties. Otherwise, as an appellate court, we must review Provident's assignments of error under the manifest error standard.
An appellate court may not set aside a trial court's finding of fact in the absence of manifest error. Stobart v. State, through D.O.T.D., 617 So.2d 880 (La. 1993); Rosell v. ESCO, 549 So.2d 840 (La. 1989). The relevant question on appeal is not whether the trial court was right or wrong, but whether the factfinder's conclusion was a reasonable one. Stobart, supra. Where there is 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 its own evaluations and inferences are as reasonable. Rosell, supra. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Rosell, supra. If the trial court's findings are reasonable when the record is reviewed in its entirety then the appellate court will not reverse. Fowler v. Wal-Mart Stores, Inc., 30,843 (La. App. 2d Cir. 8/19/98), 716 So.2d 511; Hancock v. Safeway Insurance Co., 31,870 (La. App. 2d Cir. 6/16/99), 741 So.2d 155.
La. C.E. art. 702 provides that if the scientific knowledge of an expert will assist the trier of fact to understand the evidence or to determine a fact in issue, the experts may testify thereto in the form of an opinion. The trier of fact is entitled to assess the credibility and accept the opinion of an expert just as it does with respect to other witnesses, unless the stated reasons of the expert are patently unsound. Lirette v. State Farm Ins. Co., 563 So.2d 850, 853 (La. 1990); Townsend v. Westinghouse Elevator Corp., 25,966 (La. App. 2d Cir. 8/17/94), 641 So.2d 1022, writ denied, 94-2371 (La. 11/29/94), 646 So.2d 403; Hickman v. Exide, Inc., 28,495 (La. App. 2d Cir. 8/21/96), 679 So.2d 527, 537.
As stated by this court in the past, " e are fully cognizant of and have striven to take into proper consideration the dangers of abuse that are implicit in the acceptance of mental and nervous disorders and affections as constituting disability." Miller v. United States Fidelity and Guaranty Co., 99 So.2d 511 (La. App. 2d Cir. 1957). Reviewing courts must analyze clai
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