Terrell v. Joshua
| Docket Number | SC-2022-0937 |
| Decision Date | 01 September 2023 |
| Parties | Brenda Jackson Terrell v. Alfonza Joshua |
| Court | Alabama Supreme Court |
Appeal from Jefferson Circuit Court (CV-17-904420)
In this appeal, Brenda Jackson Terrell asserts that the Jefferson Circuit Court erred by denying her motion for new trial following the entry of a judgment on a jury verdict against her and in favor of Alfonza Joshua that awarded Joshua $675,000 in compensatory damages. We reverse and remand.
In 2005, Joshua was run off the road by a sleeping driver Joshua injured his neck and back. In November 2013, Joshua was rear-ended at the junction of Interstate 459 and Highway 31 in Birmingham by a vehicle that was -- according to Joshua -- traveling at 55 to 60 miles per hour. Joshua again sustained injuries "to his neck and low back." On November 6, 2014, Joshua was a passenger in a vehicle that was T-boned by another vehicle traveling at a high rate of speed that ran a red light and hit Joshua's side of the vehicle. Joshua was not wearing a seat belt at that time, and he landed in the driver's lap after hitting his head on the ceiling of the vehicle. Joshua reported sustaining neck and back injuries after the 2014 accident, and he received treatment from a chiropractor and from physical therapists following that accident. The foregoing three accidents are not the immediate reason for this appeal, but those accidents -- particularly the November 2014 accident -- are the ultimate reason this case is before us.
The event that immediately precipitated this lawsuit occurred on November 3, 2015. On that date, Joshua was driving his pickup truck on 14th Street South in Birmingham, and he stopped behind other vehicles at a red light at the intersection of 14th Street and 6th Street. As his truck was sitting at the intersection, a vehicle driven by Terrell came up from behind and hit the rear end of Joshua's truck. Terrell's vehicle sustained the most damage in the accident, which was caused by the front of her car hitting the trailer hitch on Joshua's truck. Joshua was able to drive away from the accident and to continue using his trailer hitch after the accident.
Joshua did not seek medical attention immediately after the November 3, 2015, accident. However, on November 11, 2015, Joshua had an appointment with Dr. Scott A. Duca, a chiropractor, during which Joshua complained about having neck pain and back pain. Joshua told Dr. Duca that "he had been doing fine and did not have any of these symptoms until the accident." Joshua visited Dr. Duca several more times over the next few months for treatment. During a visit on November 23, 2015 Joshua told Dr. Duca that his neck pain was "affect[ing] him less than 25 percent of the time he [was] awake." At an appointment on November 25, 2015, Joshua told Dr. Duca that his "neck is not bothering him and his lower back pain is reducing." On November 30, 2015, Joshua told Dr. Duca that his "lower back pain has vastly improved," and he did not mention any neck pain. In Dr. Duca's medical records for three appointments in December 2015, there was no mention of treating Joshua for neck pain. Joshua next visited Dr. Duca on February 16, 2016, and he reported feeling "some worsening since his last visit" of "[h]is left neck pain," that "[h]is mid back pain has slightly worsened," and that his "upper back pain has worsened to a small degree." Dr. Duca assessed Joshua's prognosis as "good at this time" because "[h]e has been responding to treatments and his symptoms have reduced in frequency, intensity, and duration."
On February 28, 2016, Joshua went to the University of Alabama at Birmingham Hospital ("UAB Hospital") emergency room because he felt "like [he] was having a heart attack or something," but Joshua also complained to UAB Hospital medical personnel about intermittent pain in his neck, his back, and his arms. Joshua testified that UAB Hospital personnel told him that he "need[ed] to see an orthopedic doctor." On April 9, 2016, Joshua went to the emergency room at Lafayette General Medical Center in Louisiana because he had "an episode again where [he] felt like [he] was -- had been like shot in the chest."[1] Joshua also complained of "left lateral neck[,] upper back and shoulder pain." As part of his medical history, Joshua told medical personnel at Lafayette General Medical Center that he had been involved in a "very minor rear speed motor vehicle collision."
On April 13, 2016, Joshua went to see Dr. Jose Louis Ferrer, an orthopedic surgeon in Monroe, Louisiana. Joshua told Dr. Ferrer that he had been in an automobile accident in late 2015 and that he had been feeling neck pain, left-arm pain, and tingling in his hands since October 2015. Dr. Ferrer ordered an MRI for Joshua's neck, which was performed on April 15, 2016; on April 19, 2016, a report from a radiologist based on the MRI images was generated. The results of the MRI indicated that Joshua had a herniated disk in his neck. Based on that finding, on April 19, 2016, Dr. Ferrer had Joshua receive epidural injections into his neck. Joshua felt better after receiving those injections.
However, a couple of months later, Joshua again started feeling pain in his neck, and so Dr. Ferrer -- who had retired from medical practice -- referred Joshua to Dr. Damon Patterson, an interventional neurologist located in Lafayette, for further treatment. Joshua's first appointment with Dr. Patterson was on June 16, 2016. Joshua told Dr. Patterson that he had started feeling pain in his neck in October 2015. Dr. Patterson ordered Joshua to undergo guided physical therapy. Joshua told the physical therapist that he had started having pain in his neck in October 2015. After some physical-therapy treatments, Joshua returned to Dr. Patterson in September 2016 and reported that his neck pain had improved to the point that Joshua only took Tylenol as needed for pain. On March 15, 2017, Joshua saw Dr. Patterson, and Joshua again reported that his neck discomfort had improved. Joshua then had an appointment with Dr. Patterson on June 26, 2017, at which Dr. Patterson noted that Joshua's "'neck pain [has] improved, [and] neck pain overall [is] controlled since the epidural steroid injection.'" Joshua did not report feeling back pain during his visits with Dr. Patterson in 2016 and 2017.
Nearly two years later, on March 29, 2019, Joshua returned to Dr. Patterson because Joshua reported feeling neck and intermittent lower back pain. At that point, Dr. Patterson ordered an MRI for Joshua's lower back. Dr. Patterson testified that the MRI indicated that Joshua had a herniated disk in the L4-5 region. Dr. Patterson stated that Joshua's condition was exacerbated by the fact that he had degenerative disk disease. In an appointment on August 14, 2019, Dr. Patterson administered a lumbar epidural injection to Joshua. Joshua's last appointment with Dr. Patterson was on October 3, 2019.
On October 20, 2017, Joshua commenced this action in the Jefferson Circuit Court against Terrell and against Joshua's automobileinsurance carrier, State Farm Mutual Automobile Insurance Company ("State Farm"). Joshua asserted claims of negligence and wantonness against Terrell and a claim for underinsured/uninsured-motorist coverage against State Farm. On December 4, 2017, State Farm answered Joshua's complaint, admitting that it had issued an insurance policy to Joshua that provided underinsured/uninsured-motorist coverage, but denying all other allegations. On January 19, 2018, Terrell answered Joshua's complaint, admitting that she had been involved in a collision with Joshua's vehicle on November 3, 2015, but denying all other allegations.[2] On April 28, 2020, State Farm filed a motion to opt out of the litigation pursuant to Lowe v. Nationwide Insurance Co., 521 So.2d 1309 (Ala. 1988); the trial court granted that motion the following day.
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