Allen v. Briggs

• Decision Date: 15 October 2010
• Docket Number: 2090289.
• Citation: 60 So.3d 899
• Parties: Carl ALLENv.Gerald Thomas BRIGGS and Ed Briggs Mechanical Contractors, Inc.
• Court: Alabama Court of Civil Appeals

60 So.3d 899

Carl ALLEN

v.Gerald Thomas BRIGGS and Ed Briggs Mechanical Contractors, Inc.

2090289.

Court of Civil Appeals of Alabama.

Aug. 13, 2010.Rehearing Denied Oct. 15, 2010.

Robert M. Hill, Jr., Florence; and Steven D. Tipler of Tipler Law Office, Birmingham, for appellant.Preston S. Trousdale, Jr., of Jones & Trousdale, P.C., Florence, for appellee Gerald Thomas Briggs.THOMAS, Judge.

Carl Allen appeals from a judgment entered on a jury verdict against Gerald Thomas Briggs in the amount of $30,000. Among other things, Allen argues on appeal that the jury's damages award was inadequate.

On July 12, 2006, Allen was involved in a motor-vehicle accident with a vehicle driven by Briggs. Allen's vehicle, a pickup truck, rolled down a 12–foot embankment, coming to rest on its top. The rescue team dispatched to the accident scene had to extricate Allen from the vehicle by using what is commonly referred to as “the jaws of life” and by cutting him from his seat-belt harness. Allen was then placed on a backboard with his neck in a brace and placed in a basket that was pulled up the embankment. An ambulance transported Allen to ECM Hospital, where he was admitted to the hospital for a two-day stay.

While at ECM Hospital, Allen was treated first in the emergency room by Dr. Carl Spangler and then by Dr. Gary Hester. Allen had suffered a fractured sternum, and he was evaluated by Dr. William Heaton, a cardiologist, to be sure that his heart had not been injured. When he was released from ECM Hospital, Allen was wearing a neck brace.

Two weeks after he was released from the hospital, Allen returned to Dr. Hester for a follow-up visit. Based on Allen's complaints of neck pain and numbness and tingling in his arms, Dr. Hester referred Allen to Dr. Gerry Adderholt. Allen was not satisfied with Dr. Adderholt's opinion, so he requested that he be referred to another physician. Dr. Hester then referred Allen to Dr. Franklin Sammons.

Dr. Sammons first saw Allen on August 23, 2006. Dr. Sammons's deposition testimony indicates that his notes reflect that Allen complained of neck pain when he moved his head or neck and numbness and tingling in his left arm; Dr. Sammons's notes also reflected that Allen reported not having suffered those symptoms before the accident. Dr. Sammons said that an MRI that Allen had had taken earlier revealed a possible disk herniation at C5–6; showed evidence of bone spurs at C3–4, C4–5, and C6–7; and indicated degenerative changes in Allen's neck. Based on his examination and review of Allen's MRI, Dr. Sammons diagnosed Allen with a central herniated disk at C5–6, multilevel disk disease with left cervical radicular syndrome, and possible carpal tunnel syndrome.

Dr. Sammons first attempted to use a cervical epidural block to treat Allen's symptoms; however, Allen reported only slight relief from the epidural block. According to Dr. Sammons, Allen had positive Tinel's and Phelen's signs, indicating compression of his median nerve. Based on that information, Dr. Sammons scheduled Allen for nerve-conduction studies; those studies indicated that Allen suffered from mild upper-extremity carpal-tunnel-syndrome. Dr. Sammons then scheduled Allen for a carpal-tunnel-release surgery.

Allen underwent carpal-tunnel-release surgery on October 12, 2006. At his follow-up visits in December 2006 and January 2007, Allen reported that about half of his pain had resolved after the surgery. When his pain did not further improve, Allen returned to Dr. Sammons on May 14, 2007, still complaining of neck pain and numbness in his arm. Dr. Sammons then ordered that Allen undergo a myelogram, which revealed that Allen's nerves were being compressed at the C4–5 level by bone spurs and at the C5–6 level as a result of the herniated disk. Based on this information, Dr. Sammons recommended cervical-fusion surgery to Allen.

On July 29, 2007, Allen underwent cervical-fusion surgery. Dr. Sammons removed some of Allen's bone spurs and the herniated disk, placed a bone plug at C5–6, and placed a metal brace over the area. The surgery was successful; Allen's symptoms were resolved by the procedure. After being released by Dr. Sammons in December 2007 with instructions that he return if the symptoms returned, Allen had not returned to Dr. Sammons as of May 2009, when Dr. Sammons was deposed.

Because Allen had developed Alzheimer's disease by the time of the July 31, 2009, trial, most of the trial testimony concerning Allen's injuries and his reactions to the various treatments came from his wife, Marajuan Allen. Marajuan also related Allen's employment history, which, she said, had not ever required repetitive use of the wrists or hands. Marajuan testified that Allen had never had any significant complaints of neck pain before the accident; she further denied that he had ever injured his neck before. She also denied that he had suffered numbness or tingling in his arms before the accident.

According to Marajuan, the epidural block did not resolve any of Allen's symptoms, and even the carpal-tunnel-release surgery did not afford relief from the pain and tingling, although it did, she said, afford a modicum of relief from the numbness. The cervical-fusion surgery, however, explained Marajuan, resolved the pain, numbness, and tingling. She said that Allen had stiffness in his neck following the fusion, which, she said, he described as having a permanent crick in his neck. She noted that he also had more limited movement of his neck as a result of the surgery.

On direct examination, Marajuan admitted that Medicare had paid most of Allen's bills, but she said that it had not paid “the hospital bill.” On cross-examination, Marajuan testified that she and Allen had paid none of the $127,689.42 in medical bills “out of their pocket.” She then agreed that Medicare had paid the largest portion of those bills. Marajuan then said that “the Orthopedic Center [of which Dr. Sammons is a member physician] and Crestwood Hospital” had turned over bills that had gone unpaid to collection agencies. She did not testify regarding the amounts of those unpaid bills.

David Davis, the patient-accounts manager at ECM Hospital, testified that the hospital had charged Allen $13,211.20 for his two-day hospital stay in July 2006. In addition, a total of $800 in X-ray charges had been incurred by Allen in July and August 2006. Those charges, said Davis, remained unpaid at the time of trial. Davis explained that the hospital had taken out a hospital lien to secure payment of those charges.

In May 2008, Allen sued Briggs; Ed Briggs Mechanical Contractors, Inc. (“EBMC”), Briggs's employer; State Farm Mutual Automobile Insurance Company (“State Farm”), Allen's insurer; and several fictitiously named parties, alleging that Briggs had negligently and wantonly operated his vehicle and had struck Allen's vehicle, resulting in injury to Allen. State Farm filed a “Motion for Nonparticipation” in the case, and it agreed in that motion to be bound by the jury's verdict as to damages; the trial court granted that motion. EBMC moved for a summary judgment, which was granted in its favor on July 31, 2009. The summary-judgment order concluded: “There being no just cause for delay of entry of judgment, this judgment is hereby made final.” After a trial on August 4, 2009, the trial court entered a judgment as a matter of law in favor of Allen and against Briggs on the issue of liability. After its deliberations, the jury returned a verdict awarding Allen $30,000 in damages; the trial court subsequently entered a judgment on that verdict. After his motion for a new trial was denied, Allen appealed.¹

Allen first attempts to challenge the summary judgment in favor of EBMC. However, the summary judgment in favor of EBMC was expressly made a final judgment pursuant to Rule 54(b), Ala. R. Civ. P., by the inclusion of some of the language contained in that rule in the summary-judgment order. See Sho–Me Motor Lodges, Inc. v. Jehle–Slauson Constr. Co., 466 So.2d 83, 87 (Ala.1985) (concluding that the statement “[t]he Court further finds there is no just reason for delay in the entry of said final judgment” was sufficient to make a judgment final pursuant to Rule 54(b)); see also Schneider Nat'l Carriers, Inc. v. Tinney, 776 So.2d 753, 755 (Ala.2000) (noting that “if it is clear and obvious from the language used by the trial court in its order that the court intended to enter a final order pursuant to Rule 54(b), then we will treat the order as a final judgment” even though the order may not contain all the language indicating that it is, in fact, an order directing the entry of a final judgment). Although Allen argues on appeal that a Rule 54(b) certification was not proper in this case, we have held that he is precluded from raising that issue now, because, insofar as his appeal is from the summary-judgment order, his appeal comes too late, having been filed more than 42 days after the entry of the summary-judgment order on July 31, 2009. See Lary v. Gardener, 908 So.2d 955, 957 n. 1 (Ala.Civ.App.2005) (citing Bagley v. Mazda Motor Corp., 864 So.2d 301, 316–17 (Ala.2003)); see also Ex parte King, 776 So.2d 31, 38 (Ala.2000) (Lyons, J., concurring specially) (indicating that, in Justice Lyons's opinion, the remedy for a party who believes that a Rule 54(b) certification is defective is to “timely fil [e] a petition for a writ of mandamus directing the trial judge to set aside the Rule 54(b) certification, possibly as an alternative remedy sought at the same time as an appeal is taken from the order purportedly made final by the Rule 54(b) certification”).

Despite our holding in Lary, the dissent argues that a party should be permitted to raise a challenge to a Rule 54(b) certification on appeal from a subsequently entered judgment. 60 So.3d at 908. The dissent attempts to distinguish Lary on the basis that the plaintiff in Lary did not have a valid challenge to the...