Dimarco v. Jackson Indus. Serv. Inc.
| Decision Date | 15 June 2022 |
| Docket Number | 21-CA-530 |
| Citation | 345 So.3d 1072 |
| Parties | Davey DIMARCO, Armond Dotey, James McCarroll and Marc Messina v. JACKSON INDUSTRIAL SERVICE INC., Prime Insurance Company, and Buddy Jones |
| Court | Court of Appeal of Louisiana — District of US |
COUNSEL FOR PLAINTIFF/APPELLEE, DAVEY DIMARCO, ARMOND DOTEY, JAMES MCCARROLL, JR., AND MARC MESSINA, Vincent J. DeSalvo, Baton Rouge
COUNSEL FOR DEFENDANT/APPELLANT, JACKSON INDUSTRIAL SERVICE, INC., PRIME INSURANCE COMPANY, AND BUDDY JAMES, J. Geoffrey Ormsby, New Orleans
Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Hans J. Liljeberg
Defendants, Prime Insurance Company, Jackson Industrial Service, Inc., and Buddy Jones, seek review of the Twenty-Third Judicial District Court for the Parish of St. James’ May 24, 2021 judgment awarding Plaintiffs, Davey Dimarco, Armond Dotey, James McCarroll, and Marc Messina, damages for pain and suffering and past and future medical expenses. Plaintiffs also filed an answer to the appeal, requesting that this Court increase various damages awards. For the following reasons, we reverse in part, affirm in part, and affirm as amended the trial court's judgment.
On January 28, 2015, Marc Messina was driving northbound on La. Highway 3125 in a 2001 Honda Accord with passengers Davey Dimarco, Armond Dotey, and James McCarroll, Jr., when that vehicle was struck on its rear passenger side by a 2001 Kentwood tractor trailer exiting a private driveway. The tractor trailer was operated by Buddy Jones, owned by Jackson Industrial Service, Inc., and insured by Prime Insurance Company. The vehicle was "totaled" for insurance purposes, but Plaintiffs were able to drive themselves to the emergency room in Hammond after the accident.
Plaintiffs timely filed a Petition for Damages on September 15, 2015. Plaintiffs averred that, as a result of the January 28, 2015 accident, they were entitled to past and future damages for physical pain and suffering; mental anguish and emotional distress; inconvenience and loss of enjoyment of life; and medical and related expenses. Defendants argued that any damages Plaintiffs sustained were caused by their own fault and/or negligence, and Plaintiffs failed to mitigate their damages.
The parties stipulated that Defendant Buddy Jones was solely at fault in causing the motor vehicle accident. They also agreed that the only issues to be determined by the trial court would be the nature and extent of the injuries sustained by Plaintiffs, medical causation of those injuries, and general and special damages awards to Plaintiffs. Also, each of Plaintiffs’ respective claims would not exceed $50,000.00, exclusive of interest and costs. The parties also stipulated to the authentication, admissibility, and introduction into evidence of the following exhibits: Plaintiffs’ certified medical records, medical bills, and depositions from their treating physicians; depositions of their treating physicians; a copy of the Prime Insurance Company policy in effect at the time of the accident; any and all property damage photographs; and the Plaintiffs’ employment records.
A one-day bench trial was held on April 7, 2021. The four Plaintiffs were the only witnesses to testify.
After Plaintiffs rested, Defendants moved for a directed verdict and judgment as a matter of law, alleging that none of Plaintiffs proved that the medical treatment they received was related to the accident. Defendants argued that there was no clinical evidence that correlated with Plaintiffs’ subjective testimony, and that the evidence that was provided called the witnesses’ credibility into question. Plaintiffs countered that the unopposed depositions of their doctors established causation. The court denied the motion, took the matter under advisement, and granted the parties the opportunity to submit post-trial memoranda. On May 24, 2021, the trial court issued judgment in favor of Plaintiffs and against Defendants.1 In its written reasons for judgment, the trial court outlined Plaintiffs’ diagnoses and treatment plans. In awarding damages, the trial court recognized that "a plaintiff is under a duty to mitigate his damages by seeking medical treatment and ... [the court] has taken that into consideration in awarding damages." Observing that the "injuries sustained by each plaintiff are very serious," the trial court found that Plaintiffs were entitled to damages in the following amounts:
| Armond Dotey: | Past Medical Expenses: | $12,736.00 |
| Future Medical Expenses: | $-0- | |
| Past Pain and Suffering: | $10,000.00 | |
| Future Pain and Suffering: | $-0- | |
| Total: | $22,736.00 | |
| Marc Messina: | Past Medical Expenses: | $12,282.30 |
| Future Medical Expenses: | $-0- | |
| Past Pain and Suffering: | $36,000.00 | |
| Future Pain and Suffering: | $-0- | |
| Total: | $48,282.30 | |
| Davey Dimarco: | Past Medical Expenses: | $17,045.20 |
| Future Medical Future Medical | $18,391.38 | |
| Past Pain and Suffering: | $10,000.00 | |
| Future Pain and Suffering: | $4,563.42 | |
| Total: | $50,000.00 | |
| James McCarroll Jr.: | Past Medical Expenses: | $13,986.00 |
| Future Medical Expenses: | $3,103.00 | |
| Past Pain and Suffering: | $24,000.00 | |
| Future Pain and Suffering: | $8,911.00 | |
| Total: | $50,000.00 |
The instant appeal followed.
On appeal, Defendants argue that the trial court erred in awarding damages to Mr. Dimarco and Mr. McCarroll for future medical expenses and for future pain and suffering as both of those Plaintiffs are refusing to undergo the medical procedures recommended by their treating physicians for the relief of their symptoms. Defendants also assign as error the trial court's award of "excessive general damages" for past pain and suffering to Mr. Dotey, Mr. McCarroll and Mr. Messina because those Plaintiffs received minimal medical treatment and "testified that their pain resolved within a few months and/or could be managed with over-the-counter pain medicine." Defendants also challenge the amount of past medical expenses awarded to Mr. Dotey.
Plaintiffs timely filed an answer to appeal on August 3, 2021, pursuant to La. C.C.P. art. 2133, and argued that the trial court abused its discretion and prayed that certain general damages awards be increased.2 In their appellate brief, Plaintiffs argue that the trial court abused its discretion, and seek an increase in the amount of general damages awarded to Davey Dimarco for past and future pain and suffering, and to James McCarroll for past and future pain and suffering and mental anguish.
"The fundamental principle of tort liability in Louisiana is that ‘[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.’ " La. C.C. art. 2315. In a negligence action under Article 2315, the plaintiff bears the burden of proving fault, causation and damages. Beausejour v. Percy , 08-379 (La. App. 5 Cir. 10/14/08), 996 So.2d 625, 628. "It is well settled in our jurisprudence that a defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct." American Motorist Ins. Co. v. American Rent–All, 579 So.2d 429, 433 (La. 1991). Where defendant's negligent action aggravates a preexisting injury or condition, he must compensate the victim for the full extent of his aggravation. Touchard v. Slemco Elec. Found. , 99-3577 (La. 10/17/00), 769 So.2d 1200, 1204.
The trier of fact is afforded much discretion in assessing the facts and rendering an award because it is in the best position to evaluate witness credibility and see the evidence firsthand. McDonald v. AIG Nat. Ins. Co., Inc. , 10-751 (La. App. 5 Cir. 3/29/11), 63 So.3d 240, 241, citing Bouquet v. Wal–Mart Stores, Inc., 08-309 (La. 4/4/08), 979 So.2d 456, 459. To determine whether the fact finder has abused its discretion, the reviewing court looks first to the facts and circumstances of the particular case. Bouquet v. Wal–Mart Stores, Inc., 979 So.2d at 459.
"[C]ompensatory damages[ ...] encompasses those damages ‘designed to place the plaintiff in the position in which he would have been if the tort had not been committed.’ " Wainwright v. Fontenot , 00-492 (La. 10/17/00), 774 So.2d 70, 74, citing Frank L. Maraist & Thomas C. Galligan, Jr., LOUISIANA TORT LAW § 7–1 (Michie 1996). Compensatory damages are divided into special damages and general damages. Romano v. Jefferson Par. Sheriff's Office , 13-803 (La. App. 5 Cir. 3/26/14), 138 So.3d 688, 693, writ denied , 14-700 (La. 5/16/14), 139 So.3d 1028. Special damages, such as past and future medical expenses, are those which have a "ready market value," such that the amount of damages can be calculated with relative certainty. Antill v. State Farm Mut. Ins. Co. , 20-131 (La. App. 5 Cir. 12/2/20), 308 So.3d 388, 407, citing Kaiser v. Hardin , 06-2092 (La. 4/11/07), 953 So.2d 802, 810. To recover medical expenses, whether past or future, a plaintiff must show, through medical testimony, both the existence of the injury and a causal connection between the injuries and the incident of which plaintiff complained. McDonald , 63 So.3d at 242. The plaintiff must show through medical testimony that it is more probable than not the subsequent medical treatment was necessitated by the trauma suffered in the accident. Romano , 138 So.3d at 694. The plaintiff bears the burden of proving special damages by a preponderance of the evidence. Antill , supra . Before reversing a trial court's factual conclusions with regard to special damages, an appellate court must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court's conclusions, and the finding must be clearly wrong. Id. , citing Kaiser, supra. The manifest error standard controls on the issue of the assessment of special damages. McDonald , supra .
Future medical expenses, as special damages, must be established with some degree of certainty, and a plaintiff must demonstrate that such expenditures will, more probably than not, be incurred as a result of the injury. The proper standard for determining...
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