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Burse v. Allstate Insurance Co.3/28/2001
REVERSED
In this matter, Appellant Burse complains of a judgment in which the trial court denied her claim for damages, after a trial on the merits, having found that Burse did not prove the damages by a preponderance of the evidence. We disagree, and find that Burse has proved damages with legal sufficiency, and therefore award her an amount for such damages.
STATEMENT OF THE CASE
The matter was instituted with Burse's petition for damages, filed on December 1, 1998. Defendant timely answered the suit, and a bench trial was held on August 29, 2000. The trial court ruled orally at the conclusion of the trial, and a written judgment was signed September 12, 2000, dismissing the suit. Burse's motion for appeal was filed October 18, 2000.
FACTS
The matter arises out of an automobile accident which occurred on December 12, 1997. Burse was injured when the car in which she was a guest passenger rear-ended another vehicle which was stopped at a red light. There does not seem to be any question that Chikako Nishimura, a permissive driver of Appellee Allstate Insurance Company's named insured, and the driver of the vehicle in which Burse was riding, was totally at fault; liability and policy coverage were admitted by Allstate.
The record also contains an admission regarding the medical treatment Burse was given as a result of the injuries she received in the accident. At the commencement of trial, the following stipulations were entered:
With respect to the medical side of the case, Your Honor, in lieu of calling Dr. William C. Batherson [D.C.] of - - let's see - -Total Rehab and Sports Performance and Mind Care Plus - - it's two different clinics - - in lieu of calling him live, the parties also will introduce the medical bills and medical reports from Dr. Batherson.
Further, the stipulation is that Dr. Batherson, in lieu of his testimony, if he were called here to testify, he would testify in accordance with those reports, and that assuming the history to be correct as related to him by the plaintiff, that he would relate his treatment for the injuries and the injuries to the automobile accident forming the basis of this lawsuit of December 12th, `97, which we've described, as it relates to coverage and liability.
Dr. Batherson's narrative reveals the following. Burse was first seen by him on January 14, 1998. Dr. Batherson reported Burse's description of the accident, and noted a negative history of any loss consciousness or other indications of head trauma. In addition, he found no previously existing conditions which might have contributed to Burse's immediate complaints. On examination, Dr. Batherson found various positive symptoms of injury , diagnosed a soft tissue injury to Burse's neck, and noted that her "prognosis was good."
Dr. Batherson placed Burse on a program of conservative treatment, consisting of various types of passive therapy. Over the course of roughly one month's therapy, with the last treatment taken on February 19, 1998, Burse had only the one office visit with Dr. Batherson himself. However, Dr. Batherson saw Burse for one last visit on October 21, 1999, and even with the gap in treatment, he noted that she had "persisted with neck pain. . . throughout our course of treatment."
Burse herself testified at trial, and her testimony was as follows. She stated that the impact of the collision had "jerked" her forward in her seat. She stated that she didn't remember experiencing pain immediately after the accident, but instead remembered being "shocked." However, on the morning after the accident, she woke up "in pain," and went for treatment to a Dr.
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