92-17 La.App. 3 Cir. 5/4/94, Richard v. Teague

• Decision Date: 04 May 1994
• Citation: 92-17 La.App. 3 Cir. 5/4/94, Richard v. Teague, 636 So.2d 1160 (La. App. 1994)
• Court: Court of Appeal of Louisiana — District of US
• Parties: 92-17 La.App. 3 Cir

Page 1160

636 So.2d 1160

92-17 La.App. 3 Cir. 5/4/94, 91 Ed. Law Rep. 754

James Ray RICHARD, et al, Plaintiffs-Appellants, v.Gerald TEAGUE, et al, Defendants-Appellees.

No. 92-17.

Court of Appeal of Louisiana Third Circuit.

May 4, 1994.

Rehearing Denied June 20, 1994.

Robert C. McCall, for James Ray Richard, et al.

Alfred Veazie Pavy Boudreaux, for St. Landry Parish School Bd.

Andrew Anthony Lemeshewsky Jr., for Hartford Ins.

Edmond Hasse, for Comm'r of Ins.

Todd M. Ammons and Joe Hubbard, for LIGA.

Before GUIDRY, C.J., and DOUCET and COOKS, JJ.

[92-17 La.App. 3 Cir. 1] GUIDRY, Chief Judge.

Plaintiff, James Richard, an employee of L & L Sandblasting of Eunice, Louisiana, was injured on August 27, 1987 while assisting in the unloading of football stadium bleachers at Eunice High School.The bleachers were purchased by the St. Landry Parish School Board from the Southern Bleacher Company of Texas.The bleachers were transported to Eunice High School on a flatbed tractor-trailer rig owned by N.L. Jones and leased to Triangle Trucking Company.Gerald Teague drove the truck from Texas to Eunice.

At the request of Eunice High School Principal Raymond Fontenot, L & L voluntarily provided a forklift and two employees, Richard and Richard Latiolais, to assist School Board personnel.After cutting the metal bands securing the bleacher risers to the trailer, Richard jumped off of the trailer and onto the ground.A bundle of risers, which had become unstable, fell on Richard.He suffered a fractured left leg, a compression fracture of the L3 vertebra, a concussion, and a six inch scalp [92-17 La.App. 3 Cir. 2] laceration, along with numerous bruises.He eventually underwent a laminectomy and decompression fusion at L2-L4 in April of 1989.

PROCEDURAL BACKGROUND

Richard, his wife, Debra, and his two children, Kimberly and Johnathan, sued the School Board, its liability insurer, Pelican State Mutual Insurance Company(PSMIC), N.L. Jones, Triangle Trucking, and the truck driver, Teague.Hartford Accident and Indemnity Company(Hartford), L & L Sandblasting's worker's compensation insurer, intervened in the suit to recover weekly benefits and medical expenses paid to and on behalf of Richard.Prior to trial, on plaintiffs' motion, all defendants except the School Board and PSMIC were dismissed from the suit.

Pursuant to La.R.S. 13:5105, which prohibits suits against the State or a political subdivision from being tried to a jury, the trial was bifurcated.The jury determined liability and damages with respect to PSMIC while the judge determined liability and damages with respect to the School Board.Both triers of fact concluded that Richard was neither a statutory employee nor a borrowed servant of the School Board.The opposite result would have bestowed tort immunity upon the School Board.Additionally, both determined that the School Board and Richard were at fault in causing the accident and resulting injuries.They apportioned fault and awarded damages as follows:

[92-17 La.App. 3 Cir. 3]

a) Apportionment of fault                                 Jury        Judge
                   1) School Board                                           65.5%          80%
                   2) Plaintiff                                              34.5%          20%
                b) Damages
                   1) James Richard
                      a)  Physical and mental pain and anguish, past   $ 30,000.00  $ 75,000.00
                            and future, and any permanent disability
                      b)  Medical Expenses
                          (i)    Past                                    63,000.00    62,304.14
                          (ii)   Future                                  12,000.00    15,000.00
                      c)  Past loss of earnings                          20,000.00    30,000.00
                      d)  Future loss of earnings capacity               50,000.00    70,000.00
                       e) Loss of enjoyment of life                       1,000.00    35,000.00
                   2) Debra Richard (loss of consortium)                    750.00    15,000.00
                   3) Kimberly Richard (loss of consortium)                 750.00     5,000.00
                   4) Johnathan Richard (loss of consortium)                750.00     2,000.00
                                                                      ------------ ------------
                      TOTAL DAMAGES                                    $178,250.00  $309,304.14
                ----------
                

The trial judge signed a judgment incorporating both verdicts.The court did not decree the status of Hartford's intervention rights.Thereafter, defendants, PSMIC and the School Board, suspensively appealed.The plaintiffs and Hartford appealed devolutively.

Defendants contend the trial court erred in the following particulars 1.Finding that plaintiff was not the statutory employee of the St. Landry Parish School Board.

2.Referring to the activity taking place as "unloading of bleachers" as the work being performed by the School Board was much broader than merely unloading the bleachers and should have been referred to in a more appropriate general term.

3.Finding that plaintiff was not a borrowed servant of the St. Landry Parish School Board.

4.Failing to amend the jury verdict to include specific findings on the issue of borrowed servant, resulting in confusion of the jury.

5.Finding that plaintiff was not an independent contractor of St. Landry Parish School Board to whom no duty is owed.

6.Denying defendants' motion for a directed verdict on the independent contractor issue.

7.Failing to admit into evidence the records of plaintiff's previous criminal activity for impeachment purposes.

8.Allowing a separate award for loss of enjoyment of life without specifically defining for the jury this element of damages and that it should not be duplicated in general damages.

9.Allowing reference to subsequent remedial measures taken after the accident to unload the truck.

10.Awarding damages to Johnathan Richard which were not proven by a preponderance of the evidence.

11.Allowing testimony concerning the total amount of medicals incurred by the plaintiff as all medical expenses incurred were not related to this accident.

12.Allowing unsubstantiated testimony concerning [92-17 La.App. 3 Cir. 4] money received by plaintiff for cutting grass and yard work.A motion to strike was denied on this issue which was also error.

Plaintiffs assign three errors to the trial court's judgment, to-wit:

1.Allowing the jury to apportion the fault of the School Board.

2.Awarding inadequate amounts of general damages.

3.Alternatively, the trial judge's apportionment of fault and award of damages are more reasonable than that of the jury.

On July 9, 1992, PSMIC was placed in conservation under the direction and control of the Insurance Commissioner by order of the Nineteenth Judicial District Court.On motion of the School Board and PSMIC, this court stayed all appellate proceedings on September 30, 1992.On February 26, 1993, the Nineteenth Judicial District Court ordered the liquidation of PSMIC and stayed all proceedings against PSMIC for 90 days.The stay was later extended an additional 60 days.On October 8, 1993, plaintiffs filed a motion to substitute parties, to lift the stay order, and to require defendants to post a new appeal bond.In response, this court lifted the September 30, 1992 stay order and substituted the Louisiana Insurance Guaranty Association(LIGA) for PSMIC in these proceedings.

Thereafter, LIGA filed a brief with this court in which it adopted PSMIC's assignments of error and asserted the following statutory defenses:

1.LIGA's entitlement to a credit pursuant to La.R.S. 22:1386(A) for medical benefits and compensation payments made to Richard by Hartford.

2.LIGA and the School Board are not obligated to pay the subrogation claim of Hartford pursuant to La.R.S. 22:1379(3)(b).

3.Pursuant to La.R.S. 22:1382(A), LIGA's per claim liability is $150,000, subject to a $100 deductible.

4.Retroactively applying Act 958 of 1993, LIGA cannot be held responsible for court costs.

5.Pursuant to La.R.S. 22:1379(3)(d), LIGA is not responsible for payment of any pre-insolvency accrued interest.

[92-17 La.App. 3 Cir. 5] 6.If LIGA is cast in judgment for the maximum allowed liability of $150,000, it is not responsible for legal interest accruing thereon.La.R.S. 22:1382(A)(1)(b).

We shall address these issues raised by LIGA after we address the assignments of error.

FACTUAL BACKGROUND

The bleachers and bleacher risers were purchased for the School Board by James Prados, the supervisor of athletics and physical education.He had no prior notice that the bleachers were arriving on August 27, 1987 until he arrived for work at the School Board office that morning.When told of the arrival of the bleachers, Eli Cortez, the School Board's maintenance foreman, contacted three employees working in the Eunice area and instructed them to unload the truck.Herbert Prudhomme, a paint foreman, Ignace Cummings, a carpenter, and Floyd Trahan, a maintenance man, reported to the site.Harold Arceneaux, another maintenance man, was also present.When the School Board personnel realized that the equipment could not be unloaded manually, Prudhomme called Cortez who, according to Prudhomme, told him to try to locate a forklift in the Eunice area.In testimony, Cortez could not recall speaking to Prudhomme.

Principal Fontenot then contacted Richard Latiolais with L & L Sandblasting and asked for their help and a forklift to unload the bleachers.After getting approval from his boss, Richard LeDoux, Latiolais and Richard departed for the school with an 18,000 pound capacity Hyster forklift owned by L & L Sandblasting.Fontenot testified that L & L agreed to "volunteer" their manpower and forklift to help the school and that no formal agreement was entered into.

When they arrived at the school, the L & L employees helped School Board personnel unload small items by hand from the rear of the trailer.Thereafter, with Latiolais operating the forklift, they began to unload the risers from the front of the...