94-161 La.App. 3 Cir. 12/28/94, Andrus v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 28 December 1994
• Citation: 94-161 La.App. 3 Cir. 12/28/94, Andrus v. State Farm Mut. Auto. Ins. Co., 650 So.2d 275 (La. App. 1994)
• Parties: 94-161 La.App. 3 Cir
• Court: Court of Appeal of Louisiana

Page 275

650 So.2d 275

94-161 La.App. 3 Cir. 12/28/94

Rumae Nell ANDRUS, et al., Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.

No. 94-161.

Court of Appeal of Louisiana Third Circuit.

Dec. 28, 1994.

Order Granting Rehearing for

Limited Purpose, but Otherwise

Denying Rehearing March 1, 1995.

Writ Granted May 12, 1995.

Kenneth Pitre, Eunice, for Rumae Nell Andrus et al.

Terry L. Rowe, Lafayette, for State Farm.

Joseph L. Ferguson, New Iberia, for LIGA.

Michael St. Marc Caffery, New Orleans, for Evangeline Parish School Bd.

Before DOUCET, KNOLL, THIBODEAUX, SAUNDERS and WOODARD, JJ.

[94-161 La.App. 3 Cir. 1] SAUNDERS, Judge.

Plaintiffs-appellants, Rumae Nell Andrus and J.B. Andrus, appeal the jury's award of quantum for injuries and damages arising out of a multiple vehicle accident. Defendant, State Farm Mutual Automobile Insurance Company, answered plaintiffs' appeal complaining of errors in the form and content of the judgment rendered and in the assessment of costs. Intervenor, Evangeline Parish School Board, also appeals adopting the brief filed by plaintiff, Rumae Nell Andrus, as its own. Intervenor makes no independent demand. We affirm the judgment as amended; reform the judgment to conform with the verdict; and affirm the judgement as to costs.

FACTS

On Thursday, May 23, 1991, at approximately 5:15 p.m., plaintiff, Rumae Nell Andrus (hereinafter ANDRUS), was involved in a four car collision on Johnston Street in Lafayette. ANDRUS was returning home from a meeting she had attended in connection with her job as an evaluating teacher, i.e., Master Teacher under the now defunct LaTip-LaTep Program. It was raining as she stopped behind a 1980 Buick Regal operated by Jennifer Angelle, who was waiting to make a left hand turn. Suddenly, ANDRUS'S vehicle was struck from the rear by a 1983 Chevrolet Silverado pickup truck owned by E.W. Castille and operated by Mary Castille. The force of the collision propelled the ANDRUS vehicle into the rear of the Buick, resulting in her Pontiac being declared a complete loss. ANDRUS was transported to Our Lady of Lourdes Regional Medical [94-161 La.App. 3 Cir. 2] Center (hereinafter OLOL) with head and mid to upper back pain. The involvement of the fourth vehicle is not revealed in the record.

Between the time of the accident and the point at which the case went to trial, all parties involved had settled or had been dismissed except for the plaintiffs, Rumae Nell Andrus, her husband, J.B. ANDRUS, and the defendant, State Farm Mutual Automobile Insurance Company (hereinafter STATE FARM INSURANCE), as the uninsured/underinsured motorist carrier for ANDRUS' employer, the Evangeline Parish School Board. Further, it was stipulated by and between those parties that the ANDRUS'S had received $110,000.00 from third parties involved in the accident, and that STATE FARM INSURANCE'S liability, if any, would only be for any damages sustained by the plaintiffs in excess of $110,000.00.

Although STATE FARM INSURANCE'S liability was not specifically admitted by stipulation, that question was not litigated at trial nor was it raised on appeal, therefore, we will assume that if the plaintiffs' damages were found to exceed $110,000.00, STATE FARM INSURANCE would be liable for same. The only issues raised are insufficient quantum argued by plaintiffs, and incorrect form of the final judgment and assessment of court costs argued by defendant, STATE FARM INSURANCE.

The jury in this case reached the following verdict:

"What is the amount of damages, if any, which you feel would adequately compensate petitioner, Rumae Nell Andrus, for any injuries which she may have sustained as a result of the accident of May 23, 1991?

A.)  Past and future physical pain and suffering                     $15,000.00
                B.)  Past medical expenses                                           $25,000.00
                C.)  Future medical expenses                                         $20,000.00
                D.)  Past loss earnings                                              $27,160.95
                E.)  Future loss earnings and lost earnings capacity                      $ "0"
                F.)  Past and future mental pain and suffering, loss of physical     $10,000.00
                       function and loss of capacity for enjoyment of life
                                                                              Total  $98,160.95
                

What is the amount, if any, which would adequately compensate petitioner, J.B. Andrus, for any damages which he may have sustained as a result of the accident of May 23, 1991?

A.) Loss of consortium $ "0""

On appeal, appellants argue the awards for (a) past and future physical pain and suffering, and [94-161 La.App. 3 Cir. 3] (b) past and future loss of physical function and loss of capacity for enjoyment of life, are inadequate. Plaintiffs also argue that the trial court abused its discretion in making no award to ANDRUS for future loss of earnings and/or earning capacity and to J.B. ANDRUS for loss of consortium.

It was established at trial that ANDRUS had three physical injuries or conditions which were related or attributable to her May 1991 accident: (1) a compression fracture of her T-11 vertebra; (2) a herniated disc at C- 3/4; and (3) TMJ ¹ arthralgia. All of the three conditions required extensive treatment for a period of more than two years. Both the compression fracture and the TMJ problems were treated with splints and braces, and the herniated disc required surgery.

Dr. John Cobb treated ANDRUS for her compression fracture at T-11. He first treated her at OLOL on the day of the accident. He fitted and treated her with a Jewit brace. The brace fit from the pelvis to the upper chest area and prevented her from bending. According to Dr. Cobb, ANDRUS wore the brace for approximately six months: the first three to four months during her pain hours, and intermittently for the next two to three months. At a follow-up visit on June 5, 1991, ANDRUS continued to experience problems with her neck and back, but was even more troubled with headaches and facial pain.

Dr. Cobb communicated his suspicions of TMJ disorder to ANDRUS, and she soon consulted with her dentist, Dr. Philip Vidrine. He, too, suspected TMJ problems and referred ANDRUS to Dr. Mark Coreil, an orthodontist. Dr. Coreil confirmed the suspicions of Drs. Cobb and Vidrine and fitted ANDRUS with a jaw splint. ANDRUS began wearing the splint on June 28, 1991. According to Dr. Coreil's notes of her July 8th visit, she responded well to the appliance, and on her September visit, ANDRUS reported that upon her initiative, she was wearing the splint only at night.

On July 17, 1991, ANDRUS returned to see Dr. Cobb at which time he found the compression fracture healing. But in September of that year, ANDRUS was still experiencing neck and back pain. This prompted Dr. Cobb to order an MRI. The MRI was done in early October, and on the plaintiffs' subsequent visit, Dr. Cobb told her he found some spondylosis in the cervical spine, particularly at C- 3/4, but he was not sure if that was the basis of her neck pain. This was the last time he treated ANDRUS until June 1992, when ANDRUS returned again experiencing neck pain and back pain upon prolonged standing or sitting.

During the period June 1991 through December 1991, ANDRUS was also treated by Dr. [94-161 La.App. 3 Cir. 4] Oscar Rodriguez, her family internist. Dr. Rodriguez either treated or referred her to other physicians for a number of complaints: a stomach ulcer, depression and stress, and her continuing complaints of neck pain. Dr. Rodriguez had treated ANDRUS for a stomach ulcer, stress, and depression in the early 1980's, however, her medical records from this time period were unavailable. He found that the reoccurrence of the mental problems and her ulcer flare-up were attributable, in part, to the accident, and in part, to the numerous medications, analgesics and anti-inflammatories, necessary to control her pain and inflammation from the auto accident. It was Dr. Rodriguez who referred ANDRUS to Dr. Robert Rivet for the neck pain.

Dr. Rivet first saw ANDRUS on December 20, 1991. Much like Dr. Cobb, he strongly suspected a disc problem at C- 3/4 and ordered a myelogram to confirm his suspicions. Dr. Domange did the myelogram on December 31, 1991, and based on its result--"cervical spondylosis with nerve root fracture at 5 C- 3/4"--Dr. Rivet did a fusion of the involved area on January 8, 1992. After discharge from the hospital, medical treatment required that she wear a hard collar to support her neck during her day hours and a soft collar at night. Dr. Rivet informed her she could discontinue wearing of the collars at her March 30, 1992, follow-up visit.

ANDRUS had worked the fall semester of the 1991-1992 school year, but missed the spring semester due to the cervical surgery. She returned to teaching in the fall of 1992, but was only able to work about six weeks due to the extreme pain and discomfort associated with her back and neck problems. She returned to her teaching duties in February 1993 after a course of treatment by Dr. Robert Franklin, a specialist in physical medicine and rehabilitation.

Dr. Franklin saw ANDRUS on referral from Dr. Rivet. He noted ANDRUS' complaints of soft pain throughout the whole cervical range of motion. He diagnosed her with myofacial pain syndrome. He prescribed a posture bra, a TENS unit, home physical therapy (i.e., exercises plaintiff could do herself at home), and he encouraged her to diet.

In February 1993, Dr. Franklin released her to light duty, i.e. not lifting more than 20-25 pounds periodically and not more than ten pounds repetitive lifting and carrying. At that point, she returned to her teaching duties. At trial, Dr. Franklin stated that, in his opinion, ANDRUS should stay on light duty indefinitely as a precautionary measure to avoid further injury, but that he considered teaching to be well within that status.

Medical evidence...