Hidovell Burke v. Zurich American Insurance Co.

Case: 09-31086 Document: 00511184992 Page: 1 Date Filed: 07/26/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
July 26, 2010

No. 09-31086 Lyle W. Cayce
Summary Calendar Clerk

HIDOVELL BURKE,

Plaintiff - Appellant
v.

ZURICH AMERICAN INSURANCE COMPANY,

Defendant - Appellee

Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:08-CV-4268

Before BENAVIDES, PRADO, AND SOUTHWICK, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Hidovell Burke (Burke) appeals the jury verdict arising
out of his personal injury lawsuit. The jury found Burke to be 25% at fault for
the automobile accident and determined that no compensable damages resulted
from this accident. For the reasons set forth below, we affirm.
On July 3, 2007, Burke and a friend were traveling on a one-way street in
New 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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No. 09-31086

(Advanced) and operated by Joel Sayre (Sayre), was parked on one side of the
street to service cable equipment. After activating his truck’s flashers and
strobe lights and checking his rear view mirror for traffic, Sayre opened his
truck’s door which was instantly struck by the mirror of Burke’s van as Burke
passed Sayre’s truck. The van’s mirror shattered but the cable truck sustained
no damage.
Burke filed suit in state court against Advanced, Sayre, and Zurich
American Insurance Company (Zurich) alleging medical expenses from the
accident. Service was not administered on Advanced or Sayre, and Zurich
removed the matter to federal court. On October 5, 2009, the case was tried
before a jury who found Sayre to be 75% at fault for the accident and Burke to
be 25% at fault. In addition, the jury determined Burke failed to meet his
burden of proof on damages by failing to show that his injuries were a result of
this car accident. Following the jury verdict, Burke moved for judgment
notwithstanding the verdict, which was denied by the district court. The court
entered the jury verdict and awarded no damages to Burke. Burke appeals.
On motions for directed verdict and for judgment notwithstanding the
verdict, we consider all evidence in the light most favorable to the party opposed
to 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)
(citations omitted). Granting the motion is proper if the facts and inferences
point 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
diversity case, Louisiana state law applies to the negligence issues. In a
personal injury suit under Louisiana law, a plaintiff must show that the medical
expenses he seeks to recover more probably than not were a result of the trauma
suffered from the accident at issue. See Angelle v. Delery, 833 So.2d 469, 476

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No. 09-31086

(La. Ct. App. 2002) (citing White v. Longanecker, 637 So.2d 1213, 1218 (La. Ct.
App. 1994)).
Burke contends that the jury erred in finding him partially at fault for the
accident occurring and that the undisputed medical evidence linking his lower
back injuries and medical expenses to this automobile accident should have
resulted in an award for his medical expenses. Burke argues that his driving
down the middle of the one-way street in the lane normally driven when cars are
parked on both sides of the street by definition means he was not at fault. On
the issue of damages, Burke argues that the medical records of Dr. McKenna,
Dr. Howard, Dr. Stephenson, and Dr. Meyers provides legally sufficient proof to
tie his complained about injuries to the accident with Sayre such that the jury
erred for failing to award damages for his medical expenses, pain, and suffering.
We disagree.
The evidence and facts support the jury’s apportionment of fault. Burke’s
testimony and the video-deposition testimony of Syare established that no cars
were parked on the left side of the street during the accident nor any cars on the
right side of the street in proximity to where the accident occurred. Burke stated
that he saw the big utility truck as he was driving 20 to 25 mph down the 25
mph residential street. Nonetheless, Burke asserted it was reasonable to
continue driving in the middle of the street instead of further away from the
flashing utility truck. Sayre described in detail the normal repair procedures,
the size of the truck, the utility bins hanging over each side of the truck in the
back, and the mounted boom and tool boxes. Sayre testified that the four way
flashers and the strobe lights were continually left on during their repairs and
that he parked the truck right alongside the street as one would a normal
vehicle. Sayre stated that he checked his rear view mirror first, and then opened
his door approximately 10 inches when the impact occurred. Zurich contended
that Burke was partially at fault for his van’s mirror colliding with Sayre’s door

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No. 09-31086

by driving so close to the utility truck when no cars were parked on the left side
of the street when Burke could easily have steered left or slowed down when
passing the utility truck. Zurich suggested that Burke was not driving in the
middle of the road but closer to the right hand side of the street for Burke’s
mirror to collide with Sayre’s door, especially since the door had only been
opened a few inches. Under the evidence presented, we cannot say the jury was
unreasonable in holding Burke 25% at fault for the accident in light of his’ and
Sayre’s testimony that established no cars were parked on either side of the
street and that when Burke saw the parked utility truck with its flashers on, he
neither slowed down nor moved to the left when approaching and passing
Sayre’s truck.
More significantly and fatal to Burke’s appeal, the evidence and facts also
support the jury’s decision to award no damages. At the trial, the jury heard
from a variety of Burke’s doctors that had treated him during the time following
the accident. Burke admitted that he had previously suffered a work-related
back 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
expert that the current injury area was without “medical significance,” that the
only “clinically significant” area was the back area from previous injuries, and
that the lack of references to Burke’s prior back injuries in his and Burke’s other
doctors’ examinations seriously questioned the claim that a causal relationship
existed.
Applying the standards set forth in this opinion and considering all the
evidence in the record, we hold that the district court properly denied Burke’s
motion for judgment notwithstanding the verdict.
Accordingly, the judgment of the district court is AFFIRMED.

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