93-1566 La.App. 4 Cir. 1/27/94, Owens v. Anderson

• Decision Date: 27 January 1994
• Citation: 631 So.2d 1313
• Parties: 93-1566 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1313

631 So.2d 1313

93-1566 La.App. 4 Cir. 1/27/94

Theron G. OWENS v. Brad E. ANDERSON, Government Employees Insurance Company and State Farm Insurance Company.

No. 93-CA-1566.

Court of Appeal of Louisiana Fourth Circuit.

Jan. 27, 1994.

Writ Denied April 7, 1994.

Edward J. Rivera, Sessions & Fishman, New Orleans, for defendants/appellants.

Joseph W. Thomas, New Orleans, for plaintiff/appellee.

Before BARRY, WARD and WALTZER, JJ.

WALTZER, Judge.

Plaintiff's uninsured motorist carrier appeals from a judgment in accordance with a jury verdict granting plaintiff general and special damages in the amount of $50,000.00 and punitive and exemplary damages under C.C. Art. 2315.4 in the amount of $50,000.00.

Because defendant Brad Anderson settled with plaintiff for $10,000 prior to trial, the only witnesses presented at trial were plaintiff Theron Owens, his mother Joyce Owens, his treating physician Dr. Raul Diaz, private investigator Michael Breaux and alleged witness Eric Pounds.

At 2 a.m. on May 7, 1988, plaintiff Theron Owens, who was receiving worker's compensation, was returning from a late night snack at Denny's Restaurant when he was rear-ended by a vehicle driven by Brad Anderson. Owens testified he walked to the back of his vehicle to examine the damages. According to Mr. Owens, Mr. Anderson also got out of his vehicle to inspect the damage, said that he did not want to call the police, said that he would get his registration and license, returned to his vehicle and drove off. Plaintiff also testified that he had observed the defendant's vehicle weaving shortly before impact, that he observed the defendant drinking from an open can of beer immediately after the accident, and that the defendant smelled of beer.

Eric Pounds testified to three versions of his participation in the accident. Pounds testified that he saw the entire accident from behind and thus saw defendant's vehicle weaving and observed defendant drinking beer. He also testified that he did not come upon the scene until after the collision but before defendant drove away, thus not seeing the weaving or impact, but observing defendant drinking beer and driving off. Lastly, Pounds testified that he did not observe the weaving, impact, beer drinking or driving off, but arrived on the scene after defendant had already driven off at which time plaintiff asked him to follow the car and get the license plate number. It is uncontroverted that Eric Pounds followed the car and obtained the license number, returning to the accident site therewith after the police had arrived. Although Mr. Pounds testified that he did not know the plaintiff prior to the accident, he later testified that he knew plaintiff's cousin as they attended Delgado together. The police report did not indicate Eric Pounds as a witness, but rather an Eric Marvin.

The only medical testimony presented was by plaintiff's own treating physician who testified he saw Mr. Owens on May 11, 1988, four days after the accident. At that time plaintiff exhibited neck muscle spasm that had not been there before the accident. Dr. Diaz testified that muscle spasm is an objective sign of injury which cannot be faked by a patient. He concluded that plaintiff suffered a neck strain. He further testified that the neck spasm was no longer evident at the June 28, 1988 office visit and that the neck strain resolved in 6 weeks at the most.

Dr. Diaz and his former partner, Dr. Elmorshiddy, had been treating Theron Owens since May of 1987 for back injuries resulting from an auto accident which occurred within the course and scope of his employment as a maintenance man with Temple Sinai. As a result of the worker's comp injury plaintiff had already undergone extensive back surgery. At the May 11, 1988 office visit, plaintiff also complained that as a result of the second auto accident, he suffered from back pain. Dr. Diaz testified that unlike the muscle spasms in the neck injury there were no objective signs of injury to the back. Mr. Owens did exhibit subjective signs of injury which Dr. Diaz believed could be and in this case were faked, especially in the straight leg raising test during which plaintiff exhibited 20% mobility on the left leg. Dr. Diaz testified that Mr. Owens probably suffered a strain to the lower back area, although his back symptoms before and after the accident were the same. Plaintiff continued returning to Dr. Diaz with complaints of back pain until December 22, 1988, when Dr. Diaz refused to treat him any longer. The day before, a private investigator hired by the worker's comp insurer showed Dr. Diaz a surveillance tape of Theron Owens. Although Theron Owens had been indicating to Dr. Diaz that he could only lift his leg 20% on the straight leg raising test, the tape indicated Mr. Owens doing 90% movements while washing his car. Normal is 70% or over. Dr. Diaz testified that plaintiff's movements in the tape were inconsistent with the clinical picture that plaintiff presented to him during office visits and that he felt the plaintiff was faking and trying to "put one over" on him. He also mentioned that throughout this period plaintiff had been consistently complaining of pain and consistently receiving prescriptions for Percodan, a controlled substance. Dr. Diaz testified that complaints of pain are inconsistent with the ability to move as shown on the tape. Dr. Diaz, plaintiff's own treating physician, refused to treat plaintiff any longer on the grounds that he believed that plaintiff was exaggerating his injury and faking his straight leg raising test.

Michael Breaux was the private investigator for the worker's comp insurer who had filmed the videotape. He testified as to his eyewitness observations of Mr. Owens' condition and as to the tape which was admitted into evidence.

Joyce Owens is the plaintiff's mother. Plaintiff alternatively resides with his mother or his girlfriend and child. When he resides with his mother, he financially contributes to her household. Joyce Owens testified as to her son's pain.

Appellant raises four specifications of error:

1. The trial court erred in admitting plaintiff's entire deposition which contained prejudicial and inadmissible evidence.

2. The trier of fact abused its discretion in awarding $50,000.00 for a short term soft tissue injury.

3. The trier of fact erred as a matter of law in holding the plaintiff's UM carrier liable for exemplary damages under C.C. Art. 2315.4 for the defendant's driving while intoxicated.

4. The trial court erred as a matter of law when it failed to limit the judgment to the policy limits.

Turning to the second specification of error, initially, we agree with appellants that the jury abused its discretion in awarding $50,000 for a 6-week neck strain. There is no evidence in the record of a 7-month neck injury and there is no objective evidence of a back injury. Plaintiff's treating physician's testified that plaintiff was faking.

The scope of appellate review of damage awards is limited. See: Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Rosell v. ESCO, 549 So.2d 840 (La.1989); Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993); Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993). In Youn, the Louisiana Supreme Court stated:

[T]he discretion vested in the trier of fact is "great", and even vast, so that an appellate court should rarely disturb an award of general damages.

Before a court of appeal can disturb an award made by a trial court, the record must clearly reveal that the trier of fact abused its discretion in making its award. Coco v. Winston Industries, Inc., supra. It is only after analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reasons be considered excessive or insufficient. Reck v. Stevens, 373 So.2d 498, 501 (La.1979). The appellate court can disturb the award "only to the extent of lowering it (or raising it) to the highest (or lowest) amount which is reasonably within the discretion afforded that court." Coco, supra at 335.

Mindful of the Supreme Court's standards discussed above, we find that plaintiff failed to carry his burden of proving that he suffered a back injury and failed to carry his burden of proof that his neck injury was longer than 6 weeks. Because plaintiff failed to carry his burden, the award of $50,000.00 was a clear abuse of discretion. In order to determine the proper amount to be awarded, we have reviewed the particular facts of this particular case as applied to this particular plaintiff as well as reviewed the damage awards in similar cases including the following: Turcich v. Baker, 594 So.2d 505 (La.App. 5th Cir., 1992), $7,000.00 for complaints of neck pain for one and a half years for aggravation of a preexisting arthritic condition, though two months post-accident, there were no objective findings of injury; Francis v. Commercial Union Ins. Co., 594 So.2d 1025 (La.App. 3rd Cir., 1992), $10,000.00 for six-month cervical and lumbar strain; Howard v. City of Alexandria, 581 So.2d 321 (La.App. 3rd Cir., 1991), $10,000.00 for one year intermittent lumbar and cervical soft tissue injury; Blankenship v. Champion Ins. Co., 599 So.2d 505 (La.App. 3rd Cir., 1992), $7,500.00 for one year aggravation of preexisting neck injury; Marshall v. A & P Food Co., 587 So.2d 103 (La.App. 2nd Cir., 1991), $10,000.00 for six-month cervical and lumbosacral strain; Ducote v. State, 583 So.2d 590 (La.App. 5th Cir., 1991), $50,000.00 reduced to $10,000.00 for one year mild back and neck strain; McConnell v. Schwegmann Bros. Giant Supermarkets, Inc., 600 So.2d 778 (La.App. 5th Cir., 1992), $5,000.00 for ten-month headaches, neck, lower back and shoulder pain. Based upon our review of the facts of this particular case and this particular plaintiff and the jurisprudence, we conclude that the maximum plai...