Buckbee v. Aweco, Inc.

• Decision Date: 02 June 1993
• Docket Number: No. 87-1201,87-1201
• Citation: 626 So.2d 1191
• Parties: Vera BUCKBEE, et al., Plaintiffs-Appellants, v. AWECO, INC., et al., Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 1191

626 So.2d 1191

Vera BUCKBEE, et al., Plaintiffs-Appellants, v. AWECO, INC., et al., Defendant-Appellee.

No. 87-1201.

Court of Appeal of Louisiana Third Circuit.

June 2, 1993.

Order Granting Limited Rehearing Sept. 29, 1993.

Writ Denied Jan. 13, 1994.

William B. Baggett, Drew Averill Ranier, Lake Charles, for Vera Buckbee Ind. etc.

Robert W. Clements, Lake Charles, for Aweco, Inc. et al.

James Clarence Lopez, Opelousas, for Liga and Rockwood Ins. Co., In Liquidation.

Before DOUCET, KNOLL and COOKS, JJ.

KNOLL, Judge.

The Louisiana Supreme Court remanded this case to us to determine damages for the wrongful death of William Buckbee. ¹ The plaintiffs, Vera Buckbee, widow of William Buckbee, and his minor son, Larry Buckbee seek damages for Buckbee's pain and suffering prior to his death, as well as damages for loss of economic support, loss of love and affection, and mental anguish.

FACTS

The facts of this case are clearly set forth in the two Louisiana Supreme Court's decisions, and our three appellate reviews published at: 614 So.2d 1233 (La.1993); 561 So.2d 76 (La.1990); 587 So.2d 79 (La.App. 3rd Cir.1991); 542 So.2d 81 (La.App. 3rd Cir.1989); and, 418 So.2d 698 (La.App. 3rd Cir.1982), writ denied, 422 So.2d 166 (La.1982). Accordingly, we will not reiterate the facts herein, except where appropriate in our treatment of the issues presented.

PRELIMINARY MATTERS

In its appellate brief, United Gas raises a number of issues which are generally applicable to the awards we are asked to make.

United Gas raises a question of whether we can award the Buckbees an amount of damages in excess of that prayed for in their original petition. In their original petition, the Buckbees sought $3,001,500 in damages. In their most recent appellate brief, the Buckbees seek an award of $6,000,000.

Citing Freeman v. Harold Dickey Transport, Inc., 467 So.2d 194 (La.App. 3rd Cir.1985) and Smith v. Moncrief, 421 So.2d 1127 (La.App. 3rd Cir.1982), writ denied, 426 So.2d 177 (La.1983), United Gas argues that the Buckbees cannot recover an amount greater than that for which they prayed for in their petition.

Initially, we point out that the Freeman opinion involved a question strictly related to the award of special damages in excess of the amount sought in the petition. Accordingly, we find that the Freeman opinion is not dispositive of the issue. Likewise, we find the Smith opinion also distinguishable. It is clear that the plaintiffs in Smith were seeking a particular sum which was allegedly due them "under certain contractual stipulations set for in acts of sale." Therefore, we find that neither of those opinions require us to restrict our damage award to the sums prayed for in the Buckbees' petitions.

Moreover, we find Wexler v. Martin, 367 So.2d 111 (La.App. 4th Cir.1979), writ denied, 369 So.2d 1352 (La.1979), dispositive of the issue. Justice Lemmon, then sitting on the Fourth Circuit Court of Appeals, stated at pages 113-114:

"In their petition plaintiffs alleged items of general damages, estimating the amount thereof, and at trial they presented evidence to support the demand for relief. The judgment granted the relief in an amount greater than the estimated amount listed in the original petition.

Pertinent to the decision of this issue is C.C.P. art. 862, which provides:

'Except as provided in Article 1703, a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief.'

At the threshold we observe that there is no requirement in the Code for specific allegations of items of general damage. Logically, if there is no need to itemize or estimate general damages, there should be no penalty or limitation on a party who does so.

The exception in the introductory clause of C.C.P. art. 862 is also significant. Inasmuch as the excepted article (C.C.P. art. 1703) expressly provides that a judgment by default cannot exceed in amount that demanded in the petition, the general article (C.C.P. art. 862) should logically be interpreted to mean that other types of final judgments can exceed in amount that demanded in the petition. Of course, this is particularly persuasive since, as noted above, there is no requirement for itemization or estimation of general damages in the first place.

Furthermore, the source of C.C.P. art. 862 is Federal Rule 54(c), and the federal cases interpreting that rule consistently allow judgments to exceed the amount of the demand." (Citations and footnote omitted.)

United Gas also asks us to determine the damage award based, at least in part, upon the reported appellate cases of the 1980 era, since that is the period of time that this injury occurred and this case was originally tried. We disagree.

Our brethren of the Fourth Circuit commented on this issue in Wall v. American Emp. Ins. Co., 377 So.2d 369 (La.App. 2nd Cir.1979), affirmed, 386 So.2d 79 (La.1980). In Wall, the court declined to base its award on cases reported at the time of the accident which had occurred over 10 years earlier, and stated at page 375:

"The already difficult attempt to measure in money, damages arising out of injury or death to a person should not be further complicated by a court being required to determine or speculate how and in what amount those damages would have been assessed some time in the past. In the assessment of general damages at this level, we are not obliged to make an award equal to either the highest or the lowest dollar amount we would affirm as in ordinary appeals. Here we enjoy the discretion to make an award which is neither high nor low, but which is just and fair as adequate for the damages as revealed by the record."

Our research has found no appellate case other than Wall which has addressed this issue. Accordingly, we find that we are not required to limit our award to appellate court cases reported in the 1980 era.

United Gas next contends that it was improper for the Buckbees' to refer in brief to an award of pain and suffering computed on a mathematical formula based on "units of time". Although the Third Circuit has never specifically addressed this issue, in Hebert v. Travelers Insurance Company, 245 So.2d 563, 565 (La.App. 3rd Cir.1971), writ denied, 258 La. 903, 248 So.2d 332 (La.1971), we summarized the jurisprudence as follows:

"Under this method, it is determined what the plaintiff's pain and suffering is worth in monetary terms for a given unit of time and then that figure is multiplied by the number of the said units of time contained in the expected duration of the pain and suffering. Thus a final figure is arrived at which supposedly represents a reasonable picture of what the amount of general damages should be. Although our Supreme Court has generally rejected the use of mathematical formulae in the determination of the amounts of damages, Pennington v. Justiss-Mears Oil Co., 242 La. 1, 134 So.2d 53 [1961]; McFarland v. Illinois Central Railroad Co., 241 La. 15, 127 So.2d 183 [1961], the unit-of-time argument was approved by our brothers of the First Circuit in Little v. Hughes, La.App., 136 So.2d 448 [1961]...."

Our review of the Pennington case shows that the Supreme Court disapproved of the trial court's projection of a widow's loss of future income because of the death of her husband based on his present annual salary, discounted to present cash value. A similar method is used today with the caution that these awards are speculative, not subject to exact mathematical calculations, and that much discretion is left to the trier of fact in the determination of the final award. Likewise, in McFarland the Supreme Court disapproved of an appellate court's increase in damages based on a mathematical formula developed from damages awarded in three intermediate appellate court decisions. Accordingly, the McFarland court stated that the use of these prior decisions improperly removed trial court discretion from the choice of the proper award in each, individual case.

In the Little case, the appellate court, reviewing a jury award in a personal injury case, found no error in the plaintiff's presentation of a chart which attempted to place an hourly value on pain and suffering. There the trial court also cautioned the jury that the charts were not evidence and constituted mere argument by the plaintiff's attorney. In the present case, we view the Buckbees' inclusion of a unit comparison of pain and suffering awards in much the same way as our brethren in Little. We are well aware that charts and comparisons made by plaintiffs' counsel are not evidence and are not meant to remove our discretion in making an award.

Lastly, United Gas suggests that we consider the impact that more than 11 years' legal interest will have on the award we make, and that we use our inherent authority to fashion an award which will equitably take this added amount into consideration.

LSA-C.C.P. Art. 1921 provides that interest shall be awarded in the judgment as prayed for. LSA-R.S. 13:4203 further states that legal interest shall attach from date of judicial demand, on all judgments, sounding in damages, ex delicto, which may be rendered by any of the courts. As such, it is clear that the legislature has concluded that a successful tort victim is entitled to legal interest as a matter of law, and that it attaches from the date of judicial demand.

We addressed similar arguments in Dobson v. Aetna Cas. and Sur. Co., 484 So.2d 976 (La.App. 3rd Cir.1986) and again in LaSalle Pump & Supply v. La. Midland R. Co., 459 So.2d 768 (La.App. 3rd Cir.1984), writ denied, 462 So.2d 1251 (La.1985). In Dobson, we applied LSA-R.S. 13:4203, stating that we saw no need to carve out an exception to the general rule. Earlier, in the LaSalle Pump case approximately six years elapsed between the tort and the resolution of the liability issue...