Distefano v. Delta Fire & Cas. Co.

• Decision Date: 19 November 1957
• Docket Number: No. 4504,4504
• Citation: 42 A.L.R.2d 983,98 So.2d 310
• Court: Court of Appeal of Louisiana — District of US
• Parties: Mrs. Lena Hannie DISTEFANO, Tutrix, etc., Plaintiff-Appellant, v. DELTA FIRE & CASUALTY COMPANY, Defendant-Appellee.

Page 310

98 So.2d 310

Mrs. Lena Hannie DISTEFANO, Tutrix, etc., Plaintiff-Appellant, v. DELTA FIRE & CASUALTY COMPANY, Defendant-Appellee.

No. 4504.

Court of Appeal of Louisiana, First Circuit.

Nov. 19, 1957.

Durrett, Hardin & Hunter, Baton Rouge, for appellant.

Watson, Blanche, Fridge, Wilson, Posner & Thibaut, David W. Robinson, Baton Rouge, for appellee.

TATE, Judge.

While riding as a passenger in the panel truck of defendant's assured on February 19, 1956, Timmy Distefano, an unemancipated minor, received certain personal injuries. This suit is by his mother, individually for certain medical expenses occasioned by said injuries, and as the duly qualified tutrix of her son to recover on his behalf for his own personal injuries so sustained.

Both parties have appealed the trial court judgment. The sole issues before us relate to whether the damages for the personal injuries are either excessive or insufficient and to whether the plaintiff is entitled to recover under the liability clauses of defendant's policy certain medical expenses which had been previously paid by the defendant under the 'medical payments' clause thereof.

The District Court awarded $2,000 for four certain inconspicuous minor scars on Timmy's face, the most noticeable of which is approximately two inches long on his right cheek and about one-sixteenth inch in width, although the general coloration thereof blends with the general skin color of the face. (Included in this amount was a nominal award for a mild cerebral concussion which did not produce unconsciousness at the time of the accident. Although allegedly Timmy suffers occasional headaches as a result thereof, his mother refused to have him examined by a neurosurgeon with reference to these alleged complaints.)

Much discretion must be left to the trier of fact in awards for personal injuries, which are of necessity somewhat arbitrary in nature, Article 1934(3), LSA-Civil Code, Duree v. State, La.App. 1 Cir., 96 So.2d 854; although, of course, such awards should be made with some degree of uniformity with those made for similar losses, allowing for the great variation in the facts and circumstances surrounding each injury, Higginbotham v. Frazier, La.App. 1 Cir., 92 So.2d 89.

We are unable to say that the award of the District Court herein was either manifestly excessive or manifestly insufficient. Higginbotham v. Frazier, La.App. 1 Cir., 92 So.2d 89, Palmer v. Fidelity & Casualty Company of New York, La.App. 1 Cir., 91 So.2d 77, Wilson v. Yellow Cab Co., La.App. 2 Cir., 64 So.2d 463, Lovelace v. Gowan, La.App. 2 Cir., 52 So.2d 97, Middleton v. Rheem Mfg. Co., La.App. Orl., 34 So.2d 271.

Plaintiff further alleges that the trial court erred in denying recovery by her under the liability clauses of the policy issued by defendant of the sum of $95 previously paid by defendant under its medical payments clauses. This was done under the authority of Hawayek v. Simmons, La.App., 91 So.2d 49, wherein our brothers of the Orleans Court of Appeal denied recovery of medical expenses under both the medical payments clause and the liability clauses of a comprehensive personal liability policy on the ground that the injury party had the option of seeking recovery under either clause but not under both.

It does not appear that called to the attention of the court in the Hawayek case were the decisions construing the liability clauses in an automotive liability policy to constitute an entirely separate insuring agreement than that afforded by the medical payments clause thereof.

In Sims v. National Cas. Co., La.App. 1 Cir., 43 So.2d 26, we awarded penalties for the failure of the insured to make payments to the injured person under a medical payment clause. Therein we held the liability clauses to constitute an agreement to pay On behalf of the insured any Tort liability arising from an accident, and the medical payments clause to be a Contractual obligation Directly to the person injured to pay medical expenses caused by accident while in the automobile Irrespective of negligence on the part of the assured.

As we stated there, 43 So.2d 29, the standard automobile liability policy 'not only protects Harris (the insured) against liability and property damage (under the liability clauses) but It also contains a direct obligation on the part of the defendant company to each person who sustains bodily injury caused by accident while in the automobile and the medical payments coverage is not dependent upon any negligence on the part of the named assured.'¹

See also 8 Appleman, Insurance Law & Practice Section 4896.

In Newman v. Fidelity Mut. Ins. Co. La.App. 1 Cir., 86 So.2d 404, 405, we held to the same effect in assessing penalties for the arbitrary failure of the insurer to make payments to the injured person under the medical payments clause, in which same suit the defendant insurer successfully resisted any liability whatsoever under the liability clauses.

In the converse of the present situation, 'Where a separate premium was paid for medical service coverage, it constituted a separate contract, and insurer could not set up as defense that it had previously paid amount of judgment recovered in tort action against insured', 8 Appleman, Insurance Law and Practice Section 4896 at p. 75, 1957 Pocket Parts, summarizing Severson v. Milwaukee Automobile Insurance Company, 265 Wis. 488, 61 N.W.2d 872, 42 A.L.R.2d 976. The annotation following this case, 'Coverage, construction, and effect of medical payments and funeral expense clauses of liability policy' summarizes the few cases which have arisen on the question as holding that 'Medical or funeral service clauses of this type have been said to constitute, in effect, separate accident insurance coverage,' 42 A.L.R.2d 984. (The Severson case, above cited, concerned a recovery on behalf of a dead passenger against the liability insurer of the car in which he was riding, and recovery of the medical and funeral expenses was sustained under Both liability and medical clauses.)

Defendant company insured the owner and driver of this panel truck...