Adams v. Security Ins. Co. of Hartford

• Decision Date: 01 May 1989
• Docket Number: No. 88-C-2762,88-C-2762
• Citation: Adams v. Security Ins. Co. of Hartford, 543 So.2d 480 (La. 1989)
• Parties: Angela Rester, wife of/and Richard F. ADAMS v. SECURITY INSURANCE COMPANY OF HARTFORD and James E. Mohon. 543 So.2d 480
• Court: Louisiana Supreme Court

Page 480

543 So.2d 480

Angela Rester, wife of/and Richard F. ADAMS v.SECURITY INSURANCE COMPANY OF HARTFORD and James E. Mohon.

No. 88-C-2762.

543 So.2d 480

Supreme Court of Louisiana.

May 1, 1989.

William M. Magee, Covington, for applicant.

Timothy G. Schafer, New Orleans, Anthony J. Celesi, Jr., John N. Gallaspy, Bogalusa, James E. Mohon, for respondent.

WATSON, Justice.

In this personal injury suit, Richard Adams and his wife, Angela Rester, seek damages for injuries sustained by Adams in a one-car accident on January 18, 1985.Adams was a guest passenger in a vehicle driven by defendant, James Emile Mohon.The trial jury concluded that Security Insurance Company of Hartford was the insurer of the vehicle and that Mohon and Security were liable for $72,000 in damages to Adams and $5,000 in damages to Angela Rester Adams.¹The jury decided that Adams was thirty percent at fault, and the damages were reduced by that percentage of comparative negligence.²The result was an award of $3,500 to Angela Adams and $45,000 to her husband.

On plaintiffs' motion for judgment notwithstanding the verdict, ³ the trial judge increased Adams' award to $150,000 and Angela's to $15,000 ⁴ but did not disturb the allocation of fault between the guest passenger and the driver.The result was an award of $105,000 to Richard Adams and $10,500 to Angela Adams.The court of appeal reversed the judgment notwithstanding the verdict and reinstated the jury's determination.⁵However, the jury verdict was amended to delete awards of medical expenses to Dr. Robert D. Voogt, a rehabilitation specialist, and Bobby Spencer Roberts, a vocational evaluation specialist, on the ground that these expenses were incurred in preparation for litigation.A writ was granted to review the judgment of the court of appeal.⁶The issues are: (1) fault of guest passenger Adams; and (2) damages.

FACTS

James Emile Mohon was driving a 1984 Datsun 300 ZX Turbo sports car that had been presented to him and his wife at their wedding six days before the accident.Although the automobile was designated as a wedding present, title to the car had remained in the name of West Esplanade Shell Service Station, Inc. d/b/a America's Largest Shell, Inc., the business owned by Mohon's father-in-law, Harlan Ray Lloyd.The business had made the down payment on the car, and the automobile was listed under Lloyd's Security Insurance Company business policy with five other vehicles.Mohon had been added to the policy's list of insured drivers.Apparently, Lloyd intended to pay the insurance and car notes ⁷ through his company while donating the use to his daughter and her husband.After the accident, Security paid the property damage to the automobile but disputed liability coverage.The business paid the $250 deductible.Title was transferred to the Mohons on April 20, 1985.

The Mohons had just returned from a Florida honeymoon when the accident occurred.Richard F. "Ricky" Adams, a good friend, went for a ride with Mohon in the new car.After picking up Ricky at his restaurant, Wild Bill's Southern Fried Chicken House, Mohon drove down the main street of Varnado, Louisiana, and then on to Military Highway, ⁸ which forms a T-intersection with Main Street.During their drive, Mohon exhibited various features of the car to Adams.After the stop at the T-intersection, Mohon accelerated.According to Mohon, he achieved a speed of about 50 miles per hour.

The car gauge could be adjusted to register either miles or kilometers.Although he was not positive, Mohon thought his speedometer was set on kilometers when Ricky Adams observed it registering 93.A speed of 93 kilometers per hour would equal only 57.66 miles per hour.According to Adams, the car did not seem to be going "that fast," i.e., 93 miles per hour.⁹Thus, the speedometer was probably registering kilometers.¹⁰Mohon said he had slowed down to 25 miles per hour and then accelerated before he reached the curve where the accident occurred.The curve was signed for 50 miles per hour.According to Mohon's account, he was going 45 to 50 miles per hour when gravel on the road caused him to spin out of the curve backwards through a muddy clay ditch and into an impact with several trees.Adams estimated the car's speed in the curve at 60 miles per hour.The car's rear axle was broken, and the passenger's side panel was damaged.The repairs cost $10,836.06.

At trial, Adams said he did not protest about the car's speed because he did not feel endangered.In deposition, Adams had testified that he did not object because he was in shock from seeing 93 on the speedometer.The jury apparently discounted Adams' excuses because of the discrepancy in his testimony.

Dr. Glynn Hebert, Adams' family physician, treated Adams after the accident.Adams' back and right shoulder were injured.X-rays revealed fractures of the right transverse processes of L-2, L-3 and L-4 along with multiple bruises and contusions.The fractures indicated a severe blow.Adams was hospitalized for two weeks, and given conservative treatment.Dr. Hebert's diagnosis when Adams was discharged from the hospital on February 1, 1985, was: fractures with bruises and contusions of the right kidney, the liver and trunk of his body.On October 4, 1985, when Dr. Hebert last saw Adams, his prognosis was still "guarded."¹¹

Adams also sustained a transverse process fracture at L-1.In addition to his fractures, Adams' soft tissue injuries, which did not show up on his X-rays, contributed to his pain and suffering.He was in a back brace for approximately nine months.In the summer of 1985, Adams developed headaches which were associated with increasing pain and spasm in his lower back.Adams attributed these problems to intense physical therapy, and discontinued the therapy.He continues to have headaches once or twice a month which are associated with pain and spasm in his cervical and low back muscles.The pain in his paraspinous muscles has improved considerably, but it is exacerbated by changes in the weather and standing or walking for a prolonged period.Although Adams continues to feel sore and stiff when he first wakes up in the morning, this generally improves with exercise and walking.

Angela Rester Adams testified about additional household expenses and stresses and strains on the marriage caused by the accident.Whereas Adams formerly jumped out of bed, he now gets up very slowly and then takes a long soaking bath.

Dr. Daniel Sterling Sinclair, a board-certified orthopedic surgeon, saw Adams on January 28, 1985, on referral from Dr. Glynn Hebert.According to Dr. Sinclair, Adams' fractures were comminuted, fragmented and displaced: only the fracture at L-1 was non-displaced.

On July 29, 1985 Adams had ulnar neuritis of his left arm and a fibrous mass in his left elbow area.On March 25, 1986, Dr. Sinclair removed the mass and the ulnar nerve was transplanted to correct the ulnar neuritis.The operation was beneficial, although it left a scar.In Dr. Sinclair's opinion, the elbow problem might have been a secondary result of the automobile accident which, by injuring the back, created a strain on the arms.¹²Dr. Sinclair said the auto accident was "the most logical explanation" of the elbow problem.¹³

In Dr. Sinclair's opinion, Adams had not reached his full potential for improvement at the time of trial, and he anticipated seeing Adams three or four more times.Dr. Sinclair found Adams' persistent pattern of pain consistent with his physical findings and did not believe Adams to be a malingerer.In his opinion, Adams has a permanent physical loss of function of 10% of the body as a whole.The limitation of motion that Adams experienced is typical, the natural result of any fracture.Joint restriction is not unusual after fractures.The joints stiffen with disuse and there are some soft tissue injuries with adhesions and scarring which limit the elasticity of the tissues around the joints.

Dr. George Randolph Rice, a professor of economics at L.S.U., calculated Adams' past loss of earnings at $22,357.Adams had a life expectancy of 44.7 years, and future lost wages were estimated at $53,805.

Dr. Evan Park Howell, a neurologist, and an examiner for the American Board of Psychiatry and Neurology, testified as an expert who saw Adams over a long period of time, treating him for chronic pain.Dr. Howell prescribed Elavil, a drug used in treating chronic pain because it is analgesic, anti-depressant and non-addictive.He also recommended a TENS unit and prescribed Valium, Wygesic and Tylox.On October 1, 1985, Dr. Howell suggested that Adams receive psychological counseling and recommended Dr. William Blum, a psychiatrist.Dr. Howell last saw Adams on August 14, 1986.During the course of his treatment, Dr. Howell recommended that Adams close his restaurant business because it involved a lot of lifting.Also, because of Adams' pain, irritability and depression, Dr. Howell felt Adams did not need the additional stress of his own business.The business was closed in June of 1985.

In February of 1986, Dr. Howell began to notice an improvement in Adams' condition.Dr. Howell had strongly recommended vocational rehabilitation to Adams.In Dr. Howell's opinion, Adams has a permanent residual back disability, a chronic paraspinous muscle strain, and Adams should avoid frequent lifting of more than twenty pounds.¹⁴Dr. Howell thought Adams will eventually be pain-free if he avoids heavy lifting.

Dr. Howell recommended the surgery to remove the nodule in Adams' left arm and correct his ulnar nerve problem.Dr. Howell thought that the accident was the direct or indirect cause of Adams' difficulty with his elbow.It could be the result of direct trauma to the elbow in the accident or pressure on the left elbow while Adams was immobilized.It was more likely due to the confinement rather than a direct blow in the accident, but, in Dr. Howell's...