96 1579 La.App. 1 Cir. 6/20/97, Fontana v. Louisiana Sheriffs' Auto. Risk Program

• Decision Date: 20 June 1997
• Citation: 697 So.2d 1030
• Parties: 96 1579 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1030

697 So.2d 1030

96 1579 La.App. 1 Cir. 6/20/97

Steven A. FONTANA v. LOUISIANA SHERIFFS' AUTOMOBILE RISK PROGRAM.

No. 96 CA 1579.

Court of Appeal of Louisiana First Circuit.

June 20, 1997.

Rehearing Denied Aug. 20, 1997.

Danny J. Lirette, Houma, for Plaintiff-Appellee Steven A. Fontana.

James L. Selman, II, New Orleans, and Michele W. Crosby, Baton Rouge, for Defendant-Appellant Alliance General Insurance Co.

Before LOTTINGER, C.J., and FOIL and FOGG, JJ.

[96 1579 La.App. 1 Cir. 2] LOTTINGER, Chief Judge.

On January 3, 1993, at approximately three o'clock in the morning, plaintiff-appellee, Steven A. Fontana, a sergeant with the Terrebonne Parish Sheriff's Department, was patrolling East Tunnel Boulevard in Houma, Louisiana. Upon exiting the tunnel, Fontana observed a gray vehicle approaching from the opposite direction, apparently preparing to make an illegal u-turn. Fontana slowed his patrol car to approximately twenty-five miles per hour to observe the vehicle. After it aborted the attempted illegal u-turn, Fontana proceeded to resume his previous speed of approximately thirty-five miles per hour.

Micheal Bourgeois, who admitted to being intoxicated at the time, was traveling behind Fontana at a rate of approximately forty miles per hour. Bourgeois vaguely recalls seeing Fontana's taillights for the first time as he emerged from the tunnel. Without slowing down, Bourgeois swerved to the right but could not avoid striking the right rear of Fontana's vehicle.

After the accident, Fontana turned on his emergency strobe lights, checked on Bourgeois and called the sheriff's office. While waiting for assistance, Fontana took out his flashlight and directed traffic around the accident scene. When other units arrived and the scene was secured, he drove himself to the Terrebonne General Medical Center emergency room. Fontana was initially diagnosed with a cervical strain and left shoulder contusion. A few weeks after the accident, Fontana returned to light duty work as an assistant warden. Upon his return, Fontana received a promotion to lieutenant and a pay raise.

Fontana was treated conservatively for several months after the accident. However, with continued complaints of pain, severe headaches and a positive discogram, Fontana underwent a two level anterior cervical discectomy and fusion on November 17, 1993. Dr. Charles Billings, Fontana's orthopedic surgeon, testified that following the surgery Fontana had "substantial relief of his symptoms." On February 1, 1994, Fontana was released for restricted work and returned to his post as an assistant warden. Dr. Billings saw Fontana again in April of 1994. At that time, Dr. Billings noted a "satisfactory postoperative course" and that Fontana was working on a daily basis.

At trial Dr. Billings testified that, "[h]is clinical course was looking good, I think he was improving after his surgery, and then some episode happened." Dr. Billings' office notes of May 3, 1994, refer to this episode, "[Fontana] [r]eturned to the office, pain had improved until last [96 1579 La.App. 1 Cir. 3] week when grabbed by a defense instructor." Fontana also described this episode in detail on cross examination, "I was watching [a defensive tactics class] with my hands folded, leaning against a table, while [the instructor] was doing some defensive tactics, ... [the instructor] grabbed me by the hair, grabbed me by the chin and twisted my neck, made me turn a pale white, cold, and liked to pass out ... It was about May or June." On cross examination Dr. Billings stated that, "based on his clinical course, [I] would have anticipated that had he not have had that defense instructor episode, that he would have had substantially less pain at the present time. I think he would still had some but I think it would be substantially less."

At trial, Fontana also related a second post surgery incident. In October of 1995, Fontana was involved in an altercation in the parking lot of a restaurant. Fontana described being attacked by several individuals, pushed into a brick wall where he hit his head, and then beaten in the back of the head until he passed out. Although Dr. Billings had no record of this traumatic event, he stated that such an episode could be the cause for Fontana's continued pain.

As of the date of trial, Fontana had not been released by Dr. Billings or Dr. Paul Kantack, his psychiatrist. Neither doctor believes that Fontana is capable of returning to his position with the sheriff's department. Dr. Billings assigned a permanent anatomical impairment of 25% to Fontana and placed physical restrictions on lifting, overhead work and arm extension.

Fontana filed the instant lawsuit against several parties ¹ including defendant-appellant, Alliance General Insurance Company (Alliance), the uninsured motorist carrier for the sheriff's department. Prior to trial, Alliance filed a motion for summary judgment on the issue of punitive damages. The trial judge granted this motion effectively denying Fontana's request for punitive damages. After a three day trial, at which Alliance was the only remaining defendant, the jury returned a verdict for Fontana in the total amount of $268,750.00. Alliance's motion for new trial was denied. Alliance appeals asserting that:

1. The jury abused its discretion in awarding any damages for loss of future earning capacity related to this accident; alternatively, the award was excessive and must be reduced.

[96 1579 La.App. 1 Cir. 4] 2. The trial court abused its discretion when it refused to allow defense counsel to cross-exam Dr. Kantack regarding his biased disability findings.

3. The jury's award of $100,000.00 for general pain and suffering and $25,000.00 for disability was excessive and an abuse of discretion and should be reduced.

4. The trial judge erred by failing to properly instruct the jury regarding a following motorist's duties and the sudden emergency doctrine; this error led to the jury's erroneous conclusion that plaintiff Fontana was not at fault.

5. The trial court manifestly abused its discretion in denying Alliance's Motion for New Trial.

Fontana answered the appeal requesting an increase in the amount of damages and a reversal of the trial judge's grant of summary judgment on the issue of punitive damages.

ASSIGNMENT OF ERROR ONE

In its first assignment of error, Alliance contends that the jury abused its discretion in awarding any damages for loss of future earning capacity. Alliance notes that following the accident and surgery, Fontana returned to work at a higher rate of pay. He was working on a daily basis with substantial relief from his symptoms. Unfortunately, Fontana was re-injured during a defensive tactics class and experienced an increase in symptoms. Alliance asserts that this evidence overwhelmingly points to the conclusion that had Fontana not sustained the second injury in the defensive tactics class, he could have continued to work. Alliance asserts that the jury abused its discretion in failing to sort out the damage caused by the second work related injury from the damage caused by the automobile accident.

In a personal injury suit, the plaintiff bears the burden of proving the existence of the injury as well as the connection between the injury sustained and the accident which caused the injury. Lewis v. State Department of Transportation and Development, 94-2370, p. 3 (La.4/21/95); 654 So.2d 311, 313. To obtain an award for future loss of wages and/or loss of earning capacity, a plaintiff must present evidence which indicates with reasonable certainty that there exists a residual disability causally related to the accident. Aisole v. Dean, 574 So.2d 1248, 1252 (La.1991).

In the instant case, the evidence clearly established that Fontana sustained an injury in the automobile accident caused by the fault of Micheal Bourgeois. Fontana underwent an anterior cervical discectomy and fusion to repair the injury. As a result of the surgery, Dr. Billings [96 1579 La.App. 1 Cir. 5] assigned a permanent anatomical impairment of 25% and placed certain work restrictions on Fontana.

The evidence also clearly established that following the surgery, Fontana sustained a second work related injury. According to Dr. Billings' notations, this work related injury probably occurred during the last week of April. Following this incident, Fontana experienced an increase in pain. However, Dr. Billings also indicated that even without this incident Fontana would still be experiencing pain.

At trial, Fontana also testified that after surgery, in about April, May or June of 1994, he began working longer hours. He stated that the extended hours caused fatigue, increased headaches and neck pain. To relieve the pain associated with this change, Fontana began taking more medication and taking time off.

If the trial court or jury's finding are reasonable in light of the record reviewed in its entirety, those findings cannot be reversed on appeal, even if the appellate court would weigh the evidence differently. Martin v. East Jefferson General Hospital, 582 So.2d 1272, 1277 (La.1991). Where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Id.

Alliance asserts that the evidence points unerringly to the conclusion that had Fontana not sustained the second work related injury, he could have continued working in the same job. We note, however, that the evidence also reasonably supports the conclusion that because of the surgery and extended work hours, Fontana began experiencing increased pain and began missing work prior to the second injury. Based on the evidence presented, the jury could reasonably conclude that all or part of Fontana's loss of future earning capacity was attributable to the automobile accident. Because the jury chose between two permissible views of the evidence, it cannot be said that the jury abused its discretion...