Demarest v. Progressive American Ins. Co.

• Decision Date: 15 November 1989
• Docket Number: 89-CA-371 and 89-CA-372,Nos. 89-CA-22,89-CA-23,s. 89-CA-22
• Citation: 552 So.2d 1329
• Parties: Michelle Renee DEMAREST v. PROGRESSIVE AMERICAN INSURANCE COMPANY, et al. Consolidated With William PETRIE v. William L. FEIBLEMAN, et al. Consolidated With Michelle Renee DEMAREST v. PROGRESSIVE AMERICAN INSURANCE COMPANY, et al. Consolidated With William PETRIE v. William L. FEIBLEMAN, et al. 552 So.2d 1329
• Court: Court of Appeal of Louisiana — District of US

Page 1329

552 So.2d 1329

Michelle Renee DEMAREST v. PROGRESSIVE AMERICAN INSURANCE COMPANY, et al.

Consolidated With

William PETRIE v. William L. FEIBLEMAN, et al.

Consolidated With

Michelle Renee DEMAREST v. PROGRESSIVE AMERICAN INSURANCE COMPANY, et al.

Consolidated With

William PETRIE v. William L. FEIBLEMAN, et al.

Nos. 89-CA-22, 89-CA-23, 89-CA-371 and 89-CA-372.

552 So.2d 1329

Court of Appeal of Louisiana Fifth Circuit.

Nov. 15, 1989.

Clarence F. Favret, III, J. Paul Demarest, Favret, Favret, Demarest & Russo, New Orleans, for plaintiff-appellee Michelle Renee Demarest.

Geoffrey P. Snodgrass, Christovich & Kearney, New Orleans, for defendants-appellants William L. Feibleman and U.S. Fire Ins. Co.

Robert T. Garrity, Jr., Patricia N. Jackson, Harahan, for plaintiff-appellee William Petrie.

Before KLIEBERT, GAUDIN and WICKER, JJ.

KLIEBERT, Judge.

This litigation arises out of a two-car collision on July 4, 1986 at Causeway Boulevard, involving a 1983 Oldsmobile Cutlass owned and operated by William L. Feibleman and a 1984 Toyota Celica owned and operated by William H. Petrie. The only passenger in the Feibleman automobile was Michelle Renee Demarest and the only passenger in the Petrie automobile was Paula J. Occhipinti. Demarest, Occhipinti, and Petrie brought separate suits against Feibleman and his automobile liability insurance carriers, Progressive American Insurance Company (Progressive), the primary insurer, and United States Fire Insurance Company (USFIC), the excess insurer, for damages allegedly resulting from the accident, including punitive or exemplary damages.

The claim of Paula J. Occhipinti was settled before the trial and her suit dismissed, therefore, her claim is not involved in this appeal. The others were consolidated for a jury trial.

On November 14, 1988, based on the jury verdict, judgment was entered in favor of Michelle Demarest for $163,667.00, computed as $127,007.00 compensatory and $40,000.00 exemplary damages, less $3,340.00 penalty assessed for failure to wear a seatbelt. On November 18, 1988, also based on the jury verdict, judgment was rendered in favor of William Petrie for $123,358.00, computed as $83,358.00 compensatory and $40,000.00 exemplary damages. The respective judgments awarded legal interest on all damages from date of judicial demand. The damages awarded together with the interest due thereon have been paid or deposited in the court except for the prejudgment interest on the exemplary damage awards. Progressive has fulfilled its obligation as the primary carrier and hence is not a party to the appeal.

Feibleman and USFIC perfected a suspensive appeal assigning as error solely the imposition of prejudgment interest on the exemplary damage awards on both judgments. Petrie perfected a devolutive appeal and urges the inadequacy of the damage award. Demarest answered Feibleman's and USFIC's appeal and also perfected a devolutive appeal, alleging inadequacy of the damage award and error in imposing a 2% penalty under LSA-R.S. 32:295.1(E) for failure to wear a safety belt. All appeals have been consolidated here.

Thus, the issues for our consideration on the appeal are: (1) the adequacy of the award to Demarest, (2) the adequacy of the award to Petrie and (3) the validity of imposing prejudgment interest on the exemplary damage awards. We have considered these issues in the order listed under a heading designated as such. For the reasons stated under those headings we find the jury committed manifest error in setting the amount of Ms. Demarest's general damage award and in failing to award to Mr. Petrie an amount for future medical expenses. Further, we find the trial judge erred in calculating the amount of the penalty assessed against Ms. Demarest for failure to use the seatbelt, but affirm its computation of prejudgment interest on exemplary damages. Accordingly, we amend the judgment to provide a total award to Ms. Demarest of $213,467.00, and a total award to Mr. Petrie of $138,358.00 and, as so amended, affirm the trial court's judgment.

FACTS RELATIVE TO ACCIDENT

On July 3, 1986, William Feibleman, Michelle Demarest and Barbara Delchamps went out celebrating, first to Southern Yacht Club, and then to the Inn of Five Happiness for a birthday party. All three consumed alcoholic beverages.

Mr. Feibleman began drinking about 5:00 P.M. on July 3, 1986 and continued to drink at the various social functions throughout the evening. On the way home, Ms. Demarest had fallen asleep on the front seat and was not wearing her seatbelt. They dropped Ms. Delchamps off at her home, then proceeded to bring Ms. Demarest home. Mr. Feibleman turned onto Causeway Boulevard, a four-lane divided highway which is a major artery in Jefferson Parish, and proceeded southbound in the northbound lane. After traveling over two overpasses, Feibleman crossed over the median and proceeded northbound in the southbound lane. He again crossed the Interstate 10 overpass and was approaching the Veterans Boulevard overpass when he struck the automobile being driven by William Petrie head-on. Petrie was entering Causeway Boulevard on the approach ramp from Veterans Boulevard and was attempting to "merge" when the collision occurred. Deputy Dennis Thornton of the Jefferson Parish Sheriff's office saw Feibleman's vehicle traveling on the wrong side of the roadway and witnessed the accident. Feibleman was arrested for driving while intoxicated and subsequently pleaded guilty as charged. The impact of the collision demolished both cars.

QUANTUM--MS. DEMAREST

The jury computed the damage award to Ms. Demarest as follows:

                Past, future, mental and physical pain and suffering   $ 75,000.00
                Permanent disability                                     25,000.00
                Past medical expenses                                    27,007.00
                                                                       -----------
                  Total Compensatory                                    127,007.00
                Exemplary Damages under LSAC.C. Article 2315.4 1    40,000.00
                                                                       -----------
                  Total Damages                                         167,007.00
                Less 2% Penalty LSAR.S. 32:295.1(E) 2                3,340.00
                                                                       -----------
                Judgment                                             $163,667.00
                

On appeal counsel for Ms. Demarest urges a compensatory damage award of at least $197,000.00 (an additional $95,000.00 in general damages), and an exemplary damage award of at least $100,000.00 (an increase of $60,000.00). He further contends it was error to assess the 2% penalty.

We have made a careful review of the record and note that Ms. Demarest sustained a severe ten-inch laceration to her head and a two-inch laceration to her forehead, a fractured bone in her right hand, a fractured ankle, a perforated intestine, residual scarring of the head and abdomen, and bruises to her body.

Following the accident Ms. Demarest was rushed to the emergency room ("E.R.") at East Jefferson Hospital. There was medical testimony that soon after she arrived, her blood pressure dropped to an extremely low level causing a critical life or death situation. Although she was in great pain, she could not be given morphine or dilaudid as pain medications because it could detrimentally affect her blood pressure. Due to the low blood pressure a central venous pressure (CVP) line was placed in her neck to monitor blood volume status. This CVP line and two IV lines in her arms were used to give her blood. Because the blood pressure did not stabilize and for fear Ms. Demarest might go into shock, Dr. Barbara Valvo elected to operate on the ten-inch laceration extending from the front to the back of her head and the two-inch laceration on her forehead. Half of Ms. Demarest's head was shaved for the operation. After lifting the scalp off the skull, Dr. Valvo found two severed arteries which accounted for the extreme amount of blood loss and low blood pressure. After surgery, Ms. Demarest was sent to the intensive care unit ("I.C.U.") so she could receive intensive monitoring because her condition was still critical. She needed monitoring for the drain to her head, the CVP line in her neck, the nasal gastric tube down her nose and into her stomach, as well as the catheter. Ms. Demarest recalls feeling very frightened that she might die and her mother attested to the fact that she needed constant reassurance that she would not die. She was not transferred to a regular hospital room until six days after the accident.

Ms. Demarest testified that she felt constant pain in her head from the minute she woke up. Her head felt like it had been ripped out and put back together, that it throbbed and did not feel like her head.

While her hair grew back over the next few months and currently helps camouflage the residual scar on her scalp and forehead, for about six months Ms. Demarest had to wrap her head with long sashes to hide her partially shaved head whenever she went out in public. Understandably, this was particularly upsetting to a young woman attending college. She apparently stopped wearing the head coverings around January of the year following the accident.

With regard to the injury to Ms. Demarest's right hand, according to the medical testimony she suffered a small non-displaced fracture at the fifth metacarpal which required a splint on her hand. Her hand especially hurt during the first few weeks while she learned to use crutches, since she put all of her weight on her hands. This resulted in some difficulty in writing for a time. In fact, after she returned to L.S.U., she continued to wear her hand cast at night after she had written with and used her right hand all day; towards the end of the day, her hand would tire.

Ms. Demarest's fractured left ankle required surgery to screw in place the ends of the fractured bone in her ankle. From the minute she awakened in the...