Allen v. Ball

• Decision Date: 16 July 1982
• Docket Number: No. 12994,12994
• Citation: Allen v. Ball, 417 So.2d 1373 (La. App. 1982)
• Parties: Hilda ALLEN v. Alvin Thomas BALL, and Liberty Mutual Insurance Company.
• Court: Court of Appeal of Louisiana

Page 1373

417 So.2d 1373

Hilda ALLEN v.Alvin Thomas BALL, and Liberty Mutual Insurance Company.

No. 12994.

Court of Appeal of Louisiana Fourth Circuit.

July 16, 1982.

Alexander N. Breckinridge, IV, Montgomery, Barnett, Brown & Read, New Orleans, for defendant-appellant.

Marilyn A. Boothe, Law Office of Marvin C. Grodsky, New Orleans, for plaintiff-appellee.

Before REDMANN, SCHOTT and KLEES, JJ.

KLEES, Judge.

Plaintiff-appellee, Hilda Allen filed suit against Alvin Thomas Ball and his automobile liability insurance carrier alleging that she sustained personal injuries in an automobile accident that occurred on December 29, 1979.Thereafter, plaintiff supplemented her petition joining as a defendant, Casualty Reciprocal Exchange, her own automobile liability insurance carrier, alleging that Alvin Thomas Ball was an underinsured motorist.

Trial on the merits was had and a judgment was rendered in favor of the plaintiff and against defendants, Alvin Ball and Liberty Mutual Insurance in the sum of Ten Thousand and no/100 ($10,000.00) Dollars (Liberty's policy limits) and against defendant-appellant, Casualty Reciprocal Exchange, in the amount of Four Thousand Eight Hundred Fifty-Seven and 20/100 ($4,857.20) Dollars, together with interest and costs.

Following the rendition of judgment, the plaintiff settled with defendants, Ball and Liberty, and dismissed, with prejudice, her claim against those parties.The instant appeal is taken solely by defendant-appellant, Casualty Reciprocal Exchange, and is directed to the propriety of the Trial Court's award to plaintiff of Five Thousand Seven Hundred Dollars for "loss of income".

At the time of the accident, Hilda Allen was employed by Security Industrial Insurance Company as a "debit manager".This job involved soliciting new business, collecting the debit and keeping accurate bookkeeping records, and making monthly reports to the company.

Following her accident the plaintiff was able to perform some, but not all of her job duties.What she was unable to perform, her retired husband, August Allen, performed on her behalf.Although the plaintiff was not performing all of her duties she continued to be compensated by "Security" on a monthly basis.The trial court ruled that she was entitled to an award for loss of income as the services provided by her husband were considered a collateral source of income.

The issue before this Court is whether the trial court erred in considering the services provided by the plaintiff's husband a collateral source of income from which the defendants were not entitled to credit.We agree with the findings of the trial court and affirm.

In Henderson v. Travelers Indemnity Company, 158 So.2d 365(La.App.2d Cir.1963)the plaintiff sought damages for wages lost while he was incapacitated.The appeals court denied his request noting that during his period of incapacity he was paid.The court noted that his work was performed by hired help and with the assistance of his family and specifically denied his damages request because he could not prove what he paid to have work done for him.

This case appears to support the appellant's claim that the community has suffered no loss since the plaintiff was paid and that the work performed by her husband was not a collateral source.

In Borde v. Travelers Ins. Com., 281 So.2d 797(La.App. 3rd Cir.1973), in a claim by a husband for the loss of a wife's earnings the Court stated:

"the pertinent issue was the husband's claim for the loss of his wife's earnings as theatre manager.The evidence showed that prior to her accident she had been employed as the manager and following the accident nothing was awarded for her loss of $75 per week for 13 weeks.She received half of her pay as sick pay for nine weeks, and additionally her husband was substituted as manager and received the full pay until his wife returned to work.During the three months she was off the job she continued to do the book work.Plaintiffs argued that defendants were not entitled to the credit for the fact that Mrs. Borde's husband took over his wife's work as manager, but the case turned on the fact that both Mr. and Mrs. Borde were performing the work as manager, both before the accident and during her three month period of disability, and plaintiffs were not entitled to an increase in the award."

This case too would appear to support the appellant, however, the thrust of the case centers around the fact that the husband and wife had worked as managers before and after her accident.This fact was recognized by this court in Folse v. Fakouri, 361 So.2d 887(La.App. 4th Cir.1978) and the court declined to follow Borde.

In Folse, supra, the plaintiff was an owner-operator of a school bus.He was permanently disabled as a result of an accident.He employed others to drive his bus after his accident and shortly thereafter his wife began to operate the bus.The court reasoned that since the plaintiff could no longer drive the bus he was entitled to compensation for the salary he would pay others, including his wife.¹

The reason most often stated for the existence of the collateral source rule is that the defendant should not recover from outside benefits provided to the plaintiff or procured by the plaintiff.

In Spizer v. Dixie Brewing Co., 210 So.2d 528(La.App. 4th Cir.1968), a doctor's services were provided as a professional courtesy with no intention of receiving payment.This court held that whether or not the services were rendered as a professional courtesy was immaterial.Even if the services would have cost the plaintiff nothing the defendants could not profit from this benefit.

Our review of the record shows that the significant part of Mrs. Allen's duties required her to visit all of her...