96-1261 La.App. 3 Cir. 4/9/97, Dauzat v. Canal Ins. Co.

• Decision Date: 09 April 1997
• Citation: 692 So.2d 739
• Parties: 96-1261 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 739

692 So.2d 739

96-1261 La.App. 3 Cir. 4/9/97

Raymond DAUZAT, et al., Plaintiff--Appellant--Appellee, v. CANAL INSURANCE COMPANY, et al., Defendant--Appellee--Appellant.

No. 96-1261.

Court of Appeal of Louisiana Third Circuit.

April 9, 1997.

Rehearing Denied May 13, 1997.

Chris J. Roy, Jr., Alexandria, for Raymond Dauzat, et al.

Patrick J. Briney, M. Candice Hattan, Lafayette, for Canal Insurance Company, et al.

Sheila Moore Gordon, Baton Rouge, for State of Louisiana.

Before YELVERTON, THIBODEAUX and SAUNDERS, JJ.

[96-1261 La.App. 3 Cir. 1] SAUNDERS, Judge.

Both parties appeal the trial court's quantum awards, which were rendered in accordance with a jury's findings. Additionally, plaintiff complains procedurally of the trial court's alleged refusal to allow proper cross-examination of Dr. James McDaniel and, substantively, of the trial court's failure to instruct the jury as he would have liked with respect to reimbursement of certain medical expenses.

After reviewing the record evidence, we conclude that the jury awarded plaintiff damages for cervical injuries which it related to this accident, but not for plaintiff's other ailments, and amend the award for plaintiff's general damages related to [96-1261 La.App. 3 Cir. 2] plaintiff's cervical fusion to $100,000.00, the minimum award that is reasonable under the particular circumstances of this case.

FACTS

The facts are essentially uncontradicted. This lawsuit arises from an automobile accident which occurred on December 11, 1992, at approximately 2:00 p.m. on the southeast Evangeline Thruway in Lafayette, Louisiana. A truck driven by defendant, Arthur Anderson, an employee of A & A Trucking and insured by Canal Insurance Company, changed lanes from left to right, and struck plaintiff's vehicle, which then slid into the median of the Thruway. At the time of the accident, plaintiff was returning to his home in Hessmer in Avoyelles Parish from a trip to south Louisiana, where he had taken his son, Troy, for a job interview.

Defendants' liability is uncontested. What is at issue is quantum. Between the date of the accident and the trial held November 7, 1995, plaintiff incurred medical expenses totaling $216,322.54 for physical medical treatments, including surgeries for disc herniations in his cervical and lumbar spine, and for inpatient and outpatient psychiatric medical treatment. After the parties were unable to settle this matter amicably, it was tried to a jury, which awarded the following damages:

                    Physical pain and suffering, past and future  $25,000.00
                    Mental pain and suffering, past and future    $10,000.00
                    Past medical expenses                         $63,472.82
                    Future medical expenses                       $30,000.00
                    Past lost wages                               $35,000.00
                    Future lost wages                             $42,000.00
                

From a judgment rendered in accordance with these findings, both parties have appealed.

[96-1261 La.App. 3 Cir. 3] Plaintiff assigns as error alleged abuses of discretion in his awards for general damages, past medicals and lost future income. Part of plaintiff's argument for past medicals is that "the trial court legally erred in failing to charge the jury on the legal principle that all medical treatment is compensable unless it is incurred in bad faith by the plaintiff." Finally, plaintiff complains that the trial court procedurally erred in refusing to allow him to more thoroughly cross-examine Dr. James McDaniel.

Defendants also appeal certain aspects of the judgment. Specifically, they complain that the jury's award of past lost wages of $35,000.00 was excessive "because Mr. Dauzat was unemployed and retired at the time of the accident and further presented no evidence to substantiate his lost wage claim." Defendants also complain of the $42,000.00 award for future lost wages, arguing that plaintiff "did not present evidence to substantiate his claim that he intended to re-enter the labor force at anytime in the future and further presented no evidence of lost earning capacity."

OPINION

Our standard of review on the issue of damages was clearly set forth by our supreme court in Youn v. Maritime Overseas Corporation, 623 So.2d 1257 (La.1993) at 1260-61, cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994), where the court explained:

In Reck v. Stevens, 373 So.2d 498 (La.1979), this Court commented on appellate review of general damage awards and on the "much discretion" in fixing damages accorded to trial courts by La.Civ.Code art.1934(3) (1870). The decision pointed out that the role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances particular to the case under consideration.

In Reck, this court disapproved the appellate court's simply reviewing the medical evidence and then concluding that the award for those injuries was excessive, without taking into consideration the particular effect of the particular injuries on the particular plaintiff. This court further disapproved of the use of a scale of prior awards in [96-1261 La.App. 3 Cir. 4] cases with generically similar medical injuries to determine whether the particular trier of fact abused its discretion in the awards to the particular plaintiff under the facts and circumstances peculiar to the particular case. The initial inquiry 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 "much discretion" of the trier of fact. Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963); Ballard v. National Indem. Co. of Omaha, Neb., 246 La. 963, 169 So.2d 64 (1964); Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127 (1967). 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); Bitoun v. Landry, 302 So.2d 278 (La.1974); Spillers v. Montgomery Ward & Co., 294 So.2d 803 (La.1974).

Callihan v. Town of Vinton, 95-665, p. 5-6 (La.App. 3 Cir. 12/6/95); 668 So.2d 735, 740.

Having set forth the standard of appellate review applicable in this case, we address separately each of the assigned errors raised by the parties.

Medical Expenses

A plaintiff ordinarily may recover from the tortfeasor reasonable medical expenses, past and future, which he incurs as a result of an injury. White v. Longanecker, 93-1122 (La.App. 1 Cir.5/23/94); 637 So.2d 1213, 1218, writ denied, 94-1704 (La.10/7/94); 644 So.2d 640. When incurred in good faith, the victim is entitled to recover the full amount of medical expenses incurred as a result of the accident. Andres v. Liberty Mut. Ins. Co., 568 So.2d 651 (La.App. 3 Cir.1990).

Rowe v State Farm Mut. Auto. Ins. Co., 95-669, p. 19 (La.App. 3 Cir. 3/6/96); 670 So.2d 718, 729, writ denied, 96-0824 (La.5/17/96); 673 So.2d 611.

In this case, plaintiff complains that the jury's award of $63,472.82 for past medical expenses constituted a clear abuse of its discretion. At trial, the parties stipulated that Dauzat had incurred medical bills of $216,322.54 following the accident, and plaintiff now complains that the jury's failure to award $152,849.72 more constituted an abuse of its discretion, incorrectly premised upon the jury's finding "that [96-1261 La.App. 3 Cir. 5] Dauzat had failed to mitigate his damages or had undergone unnecessary treatment." Because the jury failed to award damages of an amount sufficient to reimburse him for all of the medical expenses ("with the possible exception of the surgery he had for his L5-S1 disc problem that pre-existed this accident") he argues that we should increase the award, no matter whether it was his expenses related to cervical injuries, lumbar injuries, or to his psychological treatments which the jury declined to award.

Defendants dispute plaintiff's view of the inferences to be drawn from the jury's findings. According to defendants, the jury properly denied plaintiff 100% reimbursement of his medical bills, and did so only after properly concluding that a significant portion of plaintiff's alleged medical conditions were neither related to the accident nor caused by it, notwithstanding his best efforts to characterize them differently. According to defendants, the medical evidence introduced at trial by both parties established that plaintiff's back and neck conditions were developmental, predated the present accident, and were neither caused by nor significantly aggravated by it. As to the L5-S1 disc, defendants remind us that Dr. McClellan testified that the herniation there "was the same herniation that preexisted the present accident and that was previously diagnosed by Dr. Drerup in 1989." Moreover, Dr. McClellan additionally testified that the herniated disc at L4-5 was degenerative and not caused by the present accident, the same conclusion offered by defendants' retained expert, Dr. James McDaniel.

In fact, according to defendants, what the jury might have elicited from the expert testimony is that "a medical consensus exists that Raymond Dauzat had an extraordinary spine." According to them, "Dauzat's case is unusual in that he has an extraordinary amount of degenerative disc disease throughout the complete length of the spine," a finding "confirmed by plaintiff's treating orthopedic surgeon, Dr. John Cobb, who confirmed that Dauzat had developmental degeneration throughout his [96-1261 La.App. 3 Cir. 6] spine, all of which predates the present accident." Specifically, in defendants' view "Dr. Cobb's test revealed that Dauzat had decreased disc spaces at all lumbar and...