Davis v. United Parcel Service, Inc.

• Decision Date: 03 February 1983
• Docket Number: No. 82-507,82-507
• Citation: 427 So.2d 921
• Parties: Lester E. DAVIS, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, INC., et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 921

427 So.2d 921

Lester E. DAVIS, Plaintiff-Appellant, v.UNITED PARCEL SERVICE, INC., et al., Defendants-Appellees.

No. 82-507.

Court of Appeal of Louisiana Third Circuit.

Feb. 3, 1983.

Rehearing Denied March 22, 1983.

Fuhrer & Flournoy, George A. Flournoy, Alexandria, for plaintiff-appellant.

Provosty, Sadler & deLaunay, Albin Provosty, Alexandria, for defendants-appellees.

Before GUIDRY, CUTRER and LABORDE, JJ.

CUTRER, Judge.

This appeal arises out of a malpractice suit by Lester E. Davis against Andrew Vallien, an attorney, wherein Davis alleged Vallien was negligent when he failed to file a workmen's compensation claim against his employer, United Parcel Service, Inc.(UPS), within the prescriptive period of one year.After a jury trial, judgment was rendered dismissing Davis' suit.Davis appealed.We affirm.

Lester Davis, while driving a truck in the course and scope of his employment for UPS, was injured in an intersectional collision on September 28, 1979, in the City of Natchitoches, Louisiana.Curtis Babbitt was the driver of the automobile which collided with Davis' truck.Dr. J.O. Trice happened to be a witness to the accident and rendered first aid to Davis at the scene.Davis was then taken to the emergency room of the local hospital where Dr. Trice examined Davis and treated him for his injuries which were of a minor nature and included lacerations of the left forearm, elbow, and one on the face near the left eyebrow.Also, Davis had sustained some contusions (bruises) of the head and knees.Dr. Trice also saw Davis on October 1 and October 8, 1979.This was the extent of the physician's treatment of Davis.Davis returned to work approximately two weeks after the accident.

A short time later Davis retained Vallien to represent him in his claims arising out of the accident.Vallien later made demands upon Babbitt (now deceased) and his alleged insurer, Aetna Life and Casualty Insurance Company(Aetna), for damages incurred by Davis.Being unable to effectuate a compromise of the demand for damages, Vallien filed a tort suit on behalf of Davis against the succession of Babbitt and Aetna.This suit was filed on September 26, 1980, within two days of one year prescription.

Following the filing of suit, Davis discharged Vallien and retained the services of his present attorney.After the discharge, Vallien received a check of $1,000.00 as an offer of compromise from Aetna.This check was transferred to Davis by Vallien but was apparently never negotiated.In June 1981, through the recommendation of his present attorney, the suit against Aetna was settled for $1,000.00.

In September 1981, Davis filed suit for workmen's compensation benefits against UPS and its compensation carrier, Liberty Mutual Insurance Company(Liberty Mutual), on the ground of facial disfigurement; and, in the alternative, filed the malpractice suit against Vallien and his insurer, Northbrook Insurance Company(Northbrook).

The trial court granted the motion for summary judgment filed by UPS and Liberty Mutual on the ground that Davis' disability ended by October 15, 1979, and he had been paid all compensation payments that were due, the final payment being made October 25, 1979.It was alleged that the workmen's compensation action against them had prescribed as approximately twenty-one months had elapsed since the last payment was made.Judgment was rendered dismissing the suit against UPS and Liberty Mutual.

After a jury trial, judgment was rendered dismissing Davis' malpractice suit against Vallien and his insurer.Davis appealed.

Davis assigns several specifications of error.We have examined them and find three of them are meritorious.These errors emanate from jury instructions and "interrogatories" presented by the trial court and were of such substance that it will be necessary for this court to evaluate the evidence and decide the case and render judgment on the record.Gonzales v. Xerox Corporation, 320 So.2d 163(La.1975).

The errors which we shall discuss are as follows:

(1)The trial court's erroneous charge pertaining to the burden of proof in a malpractice suit against an attorney; and

(2) The errors present in the "interrogatories" presented to the jury.

BURDEN OF PROOF

The trial court instructed the jury on the burden of proof as follows:

"[T]he plaintiff has the burden of proving the following elements by a preponderance of the evidence.He must demonstrate first that the loss, which he says he suffered, was, in fact, caused by the conduct of the defendant.Two, that the conduct of the defendant was below the standards, which I have told you are applicable to the defendant's conduct.And, three, that there was actual loss to the plaintiff.If you are satisfied that the plaintiff has established these three elements, then plaintiff is entitled to recover....."

Counsel for Davis objected on the ground that, once Davis established that Vallien allowed prescription to run on this compensation claim, the burden of proof shifted to Vallien to show that the compensation claim had no merit and/or would not have resulted in recovery.

The trial court's charge, as given, was the correct law at the time this case was tried (March 1982).The charge presented by counsel for Davis was not the law at that time.By coincidence, however, the Supreme Court, in the case of Jenkins v. St. Paul Fire and Marine Insurance Co., et al., 422 So.2d 1109(La.1982), has changed the rule of burden of proof in this type of case.The rule in Jenkins is very similar to that submitted by counsel for Davis.

In making the change in the burden of proof the court, in Jenkins, stated as follows:

"[W]e granted certiorari to review that judgment.399 So.2d 607.The grant was prompted to some extent by the concern over the 'casewithin a case' approach used by the court of appeal in this case and by other courts in earlier decisions.Under that approach a plaintiff in legal malpractice litigation must prove not only that the attorney was negligent in handling the client's claim on litigation, but also that the claim or litigation would have been successful but for the attorney's negligence.SeeKing v. Fourchy , 16 So. 814(La.1895);Dyer & Stevenson v. Drew, 14 La.Ann. 657(La.1859);Spiller v. Davidson, 4 La.Ann. 171(La.1849);Toomer v. Breaux, 146 So.2d 723(La.App. 3rd Cir.1962);Lewis v. Collins, 260 So.2d 357(La.App. 4th Cir.1972).

I.

"In the present case, the attorneys concede that they were negligent in not filing suit until two days after prescription had run.1 The remaining question is whether the client, after proving the attorneys' negligence, must also establish the validity of the underlying claim by proving that the attorneys' negligence caused him damages and by further proving the amount of the damages.

"Plaintiff contends that, once the client has established negligence on the part of the attorney, the burden should be placed on the negligent attorney to prove that the mishandled claim or litigation would have been unsuccessful.

"Causation, of course, is an essential element of any tort claim.However, once the client has proved that his former attorney accepted unemployment (sic) and failed to assert the claim timely, then the client has established a prima facie case that the attorney's negligence caused him some loss, since it is unlikely the attorney would have agreed to handle a claim completely devoid of merit. In such a situation, a rule which requires the client to prove the amount of damages by trying the 'casewithin a case' simply imposes too great a standard of certainty of proof. Rather, the more logical approach is to impose on the negligent attorney, at this point in the trial, the burden of going forward with evidence to overcome the client's prima facie case by proving that the client could not have succeeded on the original claim, and the causation and damage questions are then up to the jury to decide.Otherwise, there is an undue burden on an aggrieved client, who can prove negligence and causation of some damages, when he has been relegated to seeking relief by the only remedy available after his attorney's negligence precluded relief by means of the original claim...."Footnote omitted.)

The Jenkins case is clearly retroactive as this rule is procedural.The Jenkins rule, being retroactive, has the effect of rendering erroneous the instructions given by the trial court.As we have previously stated, the errors herein are such that we must decide the case on the record and, in doing so, we will bear in mind the Jenkins rule in evaluating the evidence.

"INTERROGATORIES" PRESENTED TO THE JURY FOR DETERMINATION

At the close of the jury charges, the trial court presented the following to the jury for their determination.(The jury "answered" as indicated.)

"INTERROGATORYNO. 1

We, the Jury, find that plaintiff has a serious permanent disfigurement of the face in the form of scars and that the scars are residuals from lacerations sustained in the work-related accident of September 28, 1979.

YES 'Yes' NO ____

"(IF YOU ANSWER INTERROGATORYNO. 1'YES', ANSWER INTERROGATORY NO. 2.IF YOU ANSWER INTERROGATORYNO. 1'NO', DO NOT ANSWER ANY MORE INTERROGATORIES.HAVE THE FOREMAN SIGN THIS VERDICT FORM AND RETURN TO THE COURTROOM.)

"INTERROGATORYNO. 2

We, the Jury, find that defendant, Andrew Vallien, committed malpractice in failing to file a workmen's compensation suit within the time permitted by law to recover compensation for plaintiff because of a serious permanent disfigurement of the face.

YES ____ NO 'No' "

Counsel for Davis properly entered objections to these "interrogatories."¹

LSA-R.S. 23:1221(4)(p) provides, in pertinent part, "[w]here the employee is seriously permanently disfigured about the face or head ... the court may allow such compensation as is reasonable...."The jurisprudence of this and other circuits has consistently held that, for a scar to be...