94-453 La.App. 3 Cir. 11/2/94, Strawder v. Zapata Haynie Corp.

Decision Date02 November 1994
Parties94-453 La.App. 3 Cir
CourtCourt of Appeal of Louisiana — District of US

John Peter Napolitano Jr., New Orleans, Jack W. Caskey, Nicholas Pizzolatto Jr., Lake Charles, Deborah DeRoche Kuchler, New Orleans, for Ivy Renee Strawder.

David William Leefe, Donald R. Abaunza, James Augustus Burton, Sherman Gene Fendler, Thomas John Fischer, New Orleans, Jennifer J. Bercier, J.B. Jones Jr., Cameron, Frank J. Peragine, Don Keller Haycraft, New Orleans, Dennis M. Dylewski, John L. Verner, Houston, TX, for Natural Gas Pipeline of America, Inc.

Kevin Richard Tully, Michael Mossy Christovich, New Orleans, Jennifer J. Bercier, J.B. Jones Jr., Cameron, for Hall-Houston Offshore, Etc.

John Peter Napolitano Jr., New Orleans, Jack W. Caskey, Nicholas Pizzolatto Jr., Lake Charles, Gano D. Lemoine Jr., Lafayette, Deborah DeRoche Kuchler, New Orleans, for Rosalie Bartie Vital et al.

Before LABORDE, YELVERTON and DECUIR, JJ.

[94-453 La.App. 3 Cir. 1] LABORDE, Judge.

The families of two crew members who died aboard a fishing vessel that exploded after the boat struck a submerged pipeline filed suit for wrongful death. Defendant pipeline company appeals a judgment rendered against it, claiming that the damage award is excessive. After reviewing the record, we affirm the damage award, [94-453 La.App. 3 Cir. 2] finding no abuse of discretion. The plaintiffs answered the appeal, asking us to find that the trial court erred in not allowing them to present a claim for punitive damages. We agree that this was error, and remand for a trial of that element of damages.

FACTS

On October 3, 1989, the F/V NORTHUMBERLAND, a fishing vessel operating in the Gulf of Mexico off the coast of Sabine Pass, Texas, struck an unmarked natural gas pipeline owned and operated by Natural Gas Pipeline Company of America. The natural gas from the ruptured pipeline ignited, causing an explosion and fire aboard the ship. Only three of the fourteen crew members survived. Timmy Thomas and John Bartie did not survive, but drowned in the Gulf of Mexico approximately 20 to 30 minutes after the explosion.

Decedents' minor children filed suit against Natural Gas Pipeline (NGP), Zapata Haynie, the Jones Act employer of decedents, and Captain Darryl Gough, the master of the NORTHUMBERLAND, for wrongful death of their fathers. Bartie's common law wife and his mother also filed claims for loss of support and services. Prior to trial, plaintiffs entered into settlements with Zapata and Gough. Bartie's family settled for $700,000 and Thomas' family received $650,000. These settlements provided that Zapata would receive 50% of any settlement received in plaintiffs' lawsuit against NGP, but the payment to Zapata was not to exceed the actual settlement amount.

The two cases were consolidated for trial. Pre-trial, the court dismissed plaintiffs' claims for punitive damages, damages for nonpecuniary losses and Latia Clark's claim, finding she was not the common law spouse of decedent Bartie.

Because NGP agreed not to contest its liability, a trial on damages was conducted on May 17-19, 1994. A jury awarded each decedent $500,000 for pain and [94-453 La.App. 3 Cir. 3] suffering, $250,000 for loss of support for each minor child and $10,000 for loss of support to Rosalie Bartie Vital, Bartie's mother.

Defendant NGP appeals, asserting five assignments of error. Specifically, defendant claims the trial court erred:

1. in failing to reduce the excessive awards for pain and suffering;

2. in failing to reduce the excessive awards for loss of support, services, nurture and guidance;

3. in admitting gruesome evidence that was more prejudicial than probative;

4. in allowing a non-medical witness to give expert medical testimony contrary to evidence; and

5. in failing to reduce the awards against NGP to reflect the earlier settlements by other defendants.

LAW
Standard of Review

In Daigle v. Coastal Marine, Inc., 488 So.2d 679 (La.1986), the Supreme Court noted that "state courts are not required to apply Rule 52(a)--a rule of federal civil procedure [the clearly erroneous standard of review]--to their own appellate system for reviewing factual determinations of trial courts," citing Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 106 S.Ct. 1527, 89 L.Ed.2d 739 (1986). Therefore, the standard of review with respect to general damage awards is the abuse of discretion rule enunciated in Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993). Only when the award of damages is beyond that which a reasonable trier of fact could assess for the effects of the particular plaintiff under the particular circumstances should the appellate court increase or reduce the award. See Cormier v. Cliff's Drilling Company, 640 So.2d 552 (La.App. 3 Cir.1994).

Assignment of Error Number One

In its first assigned error, defendant alleges that the awards of $500,000 for [94-453 La.App. 3 Cir. 4] Bartie's pain and suffering and $500,000 for Thomas' pain and suffering are excessive and should be reduced.

The survival action in a suit resulting from the death of a tort victim includes recovery for pain and suffering, loss of earnings and other damages sustained by the victim up to the moment of death; damages for pain and suffering are properly awarded if there is a scintilla of evidence of any pre-death pain or suffering by the victim. Mathieu v. State, DOTD, 598 So.2d 676 (La.App. 3 Cir.), writ denied, 600 So.2d 665 (La.1992); Lantier v. Aetna Cas. & Sur. Co., 614 So.2d 1346 (La.App. 3 Cir.1993).

An appellate court's initial inquiry in a claim of excessive damages is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the wide discretion of the trier of fact. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993). Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

We find no abuse of discretion by the finder of fact in this case. Before the deaths of the decedents, both Bartie and Thomas experienced a horrifying explosion and fire on the ship. Although they managed to escape death by fire on the boat itself, they both had blistered skin, indicating that they were exposed to the intense heat generated by the fire. Dennis Brooks, who rescued the only three survivors of the accident, testified about the intense heat he experienced over 500 yards from the burning boat. Brooks, who first viewed the fire by helicopter, testified that the helicopter could not fly too close to the fire because the heat from the ship caused the [94-453 La.App. 3 Cir. 5] paint on the skin of the helicopter to bubble. Similarly, when Brooks inflated a rubber raft to use in his rescue efforts, the plastic raft became tacky from the heat.

Brooks stated that when he first approached the scene in the helicopter, he saw a black man in the water by the bow of the ship on the port side. However, the heat from the fire was so intense that Brooks could not attempt to rescue this man. Arthur Jackson, also a crew member on the ship, testified that after the accident he saw Thomas in the water off of the port bow.

Further, the coroner testified that, although it was not the cause of death, both men suffered blistering on their skin before their death caused by their sudden exposure to the intense heat created by the natural gas fire. The coroner also stated that Bartie had seashells and other underwater particles in his lungs, indicating that he survived for a period of time in the water, breathing in water and other particles before he actually drowned. Halter also stated that Thomas had some food particles in his lungs, indicating that the contents of his stomach came up and were drawn back down into his lungs along with other fluids during his struggle in the water.

Therefore, we find the damage award is not excessive in light of the facts presented and affirm the award for decedents' pre-death pain and suffering.

Assignment of Error Number Two

In its second assigned error, defendant claims that the awards to decedents' minor children for loss of support, services, nurture and guidance, $250,000 to each of the two children, were excessive. Defendant argues that since Bartie never grossed more than $8,505 in any year, he would only have been able to contribute a small portion of that figure to the financial support of his son, Byron, who was ten years old at the time of Bartie's death. Defendant claims that Bartie only sporadically bought items or gave money to Byron for his support. Defendant further claims that the [94-453 La.App. 3 Cir. 6] award is excessive because Byron only had eight years remaining until majority, and loss of support damages only apply while a child is a minor. Therefore, the award should be based on actual loss of pecuniary support, not speculative or sympathetic damages.

Defendant makes a similar argument for the award to Timmy Tyrell Strawder, the son of Timmy Thomas. Defendant claims that Thomas made even less money than Bartie, and contributed no support for the last two years of his life. Timmy Tyrell also only had eight years left before majority, and the award should only be attributable to that time period. Defendant claims that both of the awards should be reduced from $250,000 to $25,000.

Although Thomas and Bartie did not earn substantial incomes before their deaths, income is not the only factor in determining loss of support. Recovery for loss of support includes all the financial contributions that...

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