Champagne v. Hartford Cas. Ins. Group

• Decision Date: 16 October 1992
• Docket Number: No. CA911179,CA911179
• Citation: 607 So.2d 752
• Parties: Charles A. CHAMPAGNE, Individually and as the Administrator (SIC) of the Minors, Crystal Clement, Cory Clement, and Chelsie Lynn Champagne, and Jeannie Cunningham Champagne v. The HARTFORD CASUALTY INSURANCE GROUP, the Administrator of the Succession of Stacey L. Duplantis, and Dixie Lloyd's Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

Page 752

607 So.2d 752

Charles A. CHAMPAGNE, Individually and as the Administrator (SIC) of the Minors, Crystal Clement, Cory Clement, and Chelsie Lynn Champagne, and Jeannie Cunningham Champagne v. The HARTFORD CASUALTY INSURANCE GROUP, the Administrator of the Succession of Stacey L. Duplantis, and Dixie Lloyd's Insurance Company.

No. CA911179.

Court of Appeal of Louisiana, First Circuit.

Oct. 16, 1992.

Brian Marceaux, Houma, for plaintiff and appellee Charles A. Champagne.

Michael Cordes, New Orleans, for defendant and appellant Hartford Cas. Ins. Co.

Before WATKINS, CRAIN and GONZALES, JJ.

CRAIN, Judge.

Charles A. Champagne suffered personal injuries in a motor vehicle accident in which the pick-up truck he was driving was struck head-on by a vehicle driven by Stacey L. Duplantis. It is undisputed that Duplantis was solely at fault in causing the accident.

It is also uncontradicted that at the time of the accident Champagne was employed by Trico Marine Operators, Inc. (Trico Marine); he was driving a company truck on company business; and the accident occurred in the course and scope of his employment with Trico Marine. As a result of his injuries, Champagne received what was characterized as "worker's compensation benefits" from Trico Marine.

Duplantis carried the minimum required limits ($10,000/$20,000) in auto liability insurance. In view of the extent of Champagne's injuries, Duplantis was underinsured. Trico Marine carried a business automobile liability and UM policy on the truck that Champagne was driving. The policy was written by the Hartford Casualty Insurance Company (HCIC).

Champagne instituted this action against the administrator of the Succession of Stacey L. Duplantis; Duplantis' insurer, Dixie Lloyds Insurance Company; and HCIC, Trico Marine's UM carrier. Champagne subsequently filed supplemental and amending petitions seeking statutory penalties and attorney's fees.

The business auto policy as written provided liability limits of one million dollars and UM limits of $20,000, which HCIC initially asserted were the applicable UM limits. Plaintiffs contended that the applicable UM limit was one million dollars because Trico Marine had not executed a written waiver specifically rejecting the greater limits. Plaintiffs filed a Motion for Summary Judgment and/or Declaratory Judgment against Dixie Lloyds and HCIC regarding the UM policy limits. Dixie Lloyds stipulated the fault of its insured and that its policy limits were $10,000. HCIC subsequently entered into a consent judgment with plaintiffs agreeing that the HCIC policy provided $1,000,000 in UM coverage and that "the time period for Hartford to make a McDill tender commences on Monday, June 11, 1990."

Hartford Accident and Indemnity Company, the worker's compensation and employer's liability carrier for Trico Marine, intervened in this action for reimbursement of alleged worker's compensation payments paid to Champagne. Champagne filed a motion for summary judgment against the intervenor contending that Champagne was a seaman and the benefits he received were maintenance and cure, not worker's compensation, and as a result thereof, the intervenor could recover only against the third party tortfeasor, not against the UM carrier. The trial court rendered a partial summary judgment in favor of Champagne, holding that Champagne was a "seaman" at the time of the accident. The court reserved for trial a ruling on the issue of whether the intervenor could recover against HCIC.

After a bench trial on the merits, judgment was rendered in favor of plaintiffs and against Dixie Lloyd's and HCIC. The judgment against Dixie Lloyds was limited to its policy limits. Plaintiffs were awarded statutory penalties and attorney's fees for HCIC's arbitrary and capricious handling of the claim.

Judgment was also rendered in favor of the intervenor, thus allowing the intervenor to recover from the UM insurer for the maintenance and cure benefits paid to Champagne. From this judgment HCIC appeals alleging as error quantum and the award of statutory penalties and attorney's fees. Plaintiffs answered the appeal and seek an increase in damages for loss of future earnings and earning capacity and for future pain and suffering. Plaintiffs further allege as error the trial court's award to intervenor, and against HCIC, for reimbursement of sums paid by intervenor to Champagne. Plaintiffs also seeks an award of damages for frivolous appeal and an award of damages pursuant to La.R.S. 22:1220. ¹

QUANTUM

a) Pain and Suffering

The trial court awarded $250,000 for past and $250,000 for future pain and suffering. HCIC contends this award is so high as to constitute an abuse of the trial court's discretion. Champagne contends that the $250,000 awarded for future pain and suffering is so low as to constitute an abuse of discretion.

Champagne suffered numerous injuries as a result of the accident:

1) comminuted (shattered) and displaced fracture of the right acetabulum (socket portion of hip joint)

2) comminuted fracture of the right patella (knee cap)

3) non-displaced fracture of the first rib on the right side

4) pulmonary contusion and atelectasis of the lung

5) non-displaced fracture in lateral aspect of talus (ankle bone) with small evulsion chip in region

6) Several extensive lacerations of upper and lateral surface of lip (avulsion laceration)

7) right patella tendon fracture and rupture

8) questionable fracture of right nasal bone

Champagne underwent several surgical procedures for his injuries as enumerated below:

1) surgical repair of the avulsion/laceration of the upper and lateral lip;

2) examination under anesthesia; debridement of the compound patellar fracture; attempted but unsuccessful open reduction internal fixation with major distal fragments wired to the proximal fragment; excision of patellar mechanism (by use of surgical wire);

3) open reduction and internal fixation (with metal screws) of right acetabular fracture; wound inspection and application of long leg cast.

4) Cast change (requiring anesthesia);

5) manipulation of knee and removal of wire (under anesthesia).

The injury occurred on January 16, 1990. Champagne was hospitalized from that date to February 2, 1990. On the date of his discharge, at a different hospital, Champagne's wife delivered their first child by Cesarean Section. Champagne was in such pain that he was not able to accompany his wife to the hospital nor was he able to remain at the hospital through the delivery. He was only able to visit with her at the hospital three days after the baby's birth. He was unable to assist her and the baby after their arrival home. Champagne was confined to a wheelchair for three weeks after his hospitalization. He then had to use crutches for eight weeks and for four weeks thereafter he was able to walk only with the aid of a cane.

He stated that he remained in severe pain and had frequent nightmares for approximately six months following the accident. At the time of trial he still limped; could not run; and was no longer able to participate in sports such as football, basketball, bowling, softball, water skiing and camping; his marital relationship had been adversely affected by the accident leading to four marital separations of varying duration. At the time of trial his pain had subsided, however, the pain returned after walking any distance; after taking large steps; or after standing or sitting for any great length of time.

Dr. Gary Guidry was accepted by the court as an expert in orthopedic medicine and was Champagne's treating physician. Prior to trial Dr. Guidry examined Champagne's knee and noted good range of motion and lessening symptoms of pain. In Dr. Guidry's opinion: the knee condition had progressed satisfactorily considering the extent of the injury, however, early degenerative changes were present in the hip area, i.e. flattening of the femoral head and narrowing of the hip joint. Thus in Dr. Guidry's opinion Champagne will most likely suffer from post traumatic arthritis which will, within three to five years, require total hip replacement surgery to alleviate the pain; and based on Champagne's age (27 years) he will most probably have to undergo additional hip replacement procedures every ten years for the remainder of his life. Dr. Guidry assigned a 15% to 20% permanent disability to the hip; a 15% disability to the knee; a 30% to 35% total disability of the lower extremity; and a 20% to 25% disability of the body. At the time of trial Champagne was taking antiinflammatory medication; was undergoing physical therapy; and had not yet been discharged from Dr. Guidry's care.

An award of general damages is determined by the facts and circumstances of each particular case and should not be disturbed absent a clear abuse of the trial court's discretion in making the award. Day v. South Line Equipment Co., 551 So.2d 774 (La.App. 1st Cir.), writ denied, 553 So.2d 474 (La.1989). After a careful review of the record and in light of the facts and circumstances discussed above we find no abuse of the trial court's discretion in awarding $250,000 for past and $250,000 for future pain and suffering.

b) Loss of Future Earning Capacity

Champagne was awarded the sum of $175,000 for loss of future earning capacity. On appeal Champagne contends that this award should be increased to $333,487.94.

Champagne was approximately twenty-seven years old at the time of trial, had less than an eleventh grade education and his work-life expectancy was 29.6 additional years. Prior to commencing employment with Trico Marine, Champagne's work history was very sporadic and was limited to manual labor. The most income earned by Champagne in any year prior to the accident was $8,429.02. Around the time of his initial employment at Trico Marine, Champagne attempted but failed to pass the GED examination. He was initially employed by Trico Marine as a deckhand, then was...