Dubois v. Armstrong

• Decision Date: 10 February 2016
• Docket Number: No. 15–345.,15–345.
• Citation: 186 So.3d 305
• Parties: Tommy DUBOIS, et ux v. Gordon ARMSTRONG, et al. Tammy Dubois, et ux v. Gordon Armstrong, et al.
• Court: Court of Appeal of Louisiana — District of US

186 So.3d 305

Tommy DUBOIS, et ux

v.Gordon ARMSTRONG, et al.

Tammy Dubois, et ux

v.Gordon Armstrong, et al.

No. 15–345.

Court of Appeal of Louisiana, Third Circuit.

Feb. 10, 2016.

Robert A. Mahtook, Jr., Mahtook & LaFleur, L.L.C., Lafayette, LA, for Defendants/Appellees—Scottsdale Insurance Company and SMI Group, Inc.

D. Patrick Daniel, Jr., The Daniel Law Firm, Houston, TX, for Plaintiffs/Appellants—Tommy Dubois and Tammy Dubois.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.

THIBODEAUX, Chief Judge.

The plaintiff, Tammy Dubois, appeals the trial court's judgment reducing one of her jury awards pursuant to the granting of a motion for judgment notwithstanding the verdict (JNOV) filed by the defendant, SMI Group, Inc. (SMI). She also appeals the judgment on the basis that the trial court's jury interrogatories and verdict form were defective, causing another improper reduction in her damage award. Finding no manifest error in the trial court's granting of the defendant's JNOV, and finding no abuse of discretion in its formulation of the jury interrogatories and verdict form, we affirm the judgment of the trial court.

I.ISSUES

We must decide:

(1) whether the trial court manifestly erred in granting SMI's JNOV and reducing the jury's award of special damages;

(2) whether the trial court abused its discretion in requiring the jury to allocate a percentage of causation to the subject accident and a percentage of causation to a prior accident occurring seven days before the subject accident;

(3) whether the trial court improperly influenced the jury's deliberations warranting the admission of juror affidavits on the issue;

(4) whether the trial court erred in ordering that judicial interest attach in 2006 when SMI was made a defendant in the tort suit, rather than in 2004 when the plaintiff filed her workers' compensation claim against Cubic; and

(5) whether the trial court abused its discretion in taxing costs equally to the plaintiff and the defendant.

II.FACTS AND PROCEDURAL HISTORY

The plaintiff, Tammy Dubois, was employed by Cubic Applications, Inc. (Cubic) as a local civilian role-player for the training of military personnel at Fort Polk. Cubic also hired the defendant subcontractor, SMI, to provide Arabic-speaking role-players to assist in the military training exercises.

On March 25, 2004, during an exercise, Ms. Dubois sustained injuries when SMI's role-players tried to detain her, and she resisted. She sustained injuries to her left elbow when she hit a wall, and injuries to her left shoulder when an SMI role-player allegedly grabbed her and raised her left arm up over her head. She also alleges to have been shoved into a chair, and she alleges cervical injuries. Ms. Dubois filed a tort suit for this March 25, 2004 incident, which is the subject of this appeal.¹

Seven days earlier, on March 18, 2004, also while working for Cubic, but not during an exercise involving SMI, Ms. Dubois was injured while unloading a bookcase or locker from the back of a truck parked on an incline. The bookcase weighing 175–200 pounds fell and struck Ms. Dubois, injuring her left shoulder and her neck. Ms. Dubois left work after this accident and iced the injury. She saw her physician on March 23, 2004, two days before the second accident above. Ms. Dubois filed a workers' compensation claim against her employer Cubic in September 2004 for both the March 18 and the March 25 accidents.

The jury was presented with extensive medical records, many of which contained brief histories of both accidents, and some of which referenced only the accident with the bookcase. Some of the medical histories stated that Ms. Dubois pulled a muscle in her neck in the bookcase incident; some stated that her chief complaint in the role-playing incident was left shoulder pain. Thus, the medical records showed neck and shoulder injuries in both accidents. Medical testimony also stated that Ms. Dubois had a degenerative condition that was aggravated on March 18, 2004. She underwent extensive procedures for cervical injuries. The medical testimony could not resolve the issue of causation for her injuries between the two accidents.

The jury also heard much testimony regarding the procedures of role-playing—the written scenarios, rule books, and reporting; the organization of the "villages" and the interaction of the local and multi-cultural actors with each other and the army; the various controls exercised out in the field or the training area referenced as "the box;" and the responsibilities of the subcontractor SMI for hiring and training the multi-cultural actors, as well as the responsibilities of the general contractor Cubic for prepping the actors. The jury heard testimony that Ms. Dubois was a good role-player but was overzealous and had a history of going "overboard" in her role-playing.² She was written up for the incident on March 25 because she resisted when the Arabic-speaking actor, playing the role of a police officer, was ordered to detain her. The rule-book specifically instructed the actors that they were not to resist or try to escape when detained.

After deliberations, the jury returned a verdict in favor of Ms. Dubois and against SMI in the amount of $983,553.71. It found no fault on the part of Cubic for the actions of SMI's actors during the role-playing exercise on March 25, 2004. The jury did find Ms. Dubois 50% at fault for her own injuries during the exercise. The jury also found that 50% of Ms. Dubois's injuries were caused by her unrelated accident with the bookcase seven days earlier on March 18, 2004. After the two reductions, SMI's liability for its own fault was $245,888.43.

Following trial, Ms. Dubois moved for JNOV to increase the award reduced by the 50% attribution to the first accident, and the trial court denied her motion. On appeal, she contends that the trial court erred in asking the jury to assess percentages of causation to both accidents on the jury verdict form and asks this court to strike the resulting reduction in her award.

Of the $983,553.71 in total damages awarded by the jury, the jury's verdict form indicated that its award for past medical expenses was $303,553.71. SMI alerted the trial court that this amount was identical to the amount reflected in a summary of expenses submitted by the plaintiff's counsel and found inadmissible by the trial court. The trial court immediately retrieved the binders from the jury room and found the inadmissible summary in the front of one of the binders. SMI filed a motion for JNOV to reduce the medical expense award to the amount of actual expenses supported by the medical bills in the record. The trial court granted the JNOV and reformed the jury verdict and judgment to reflect an award of $164,116.36 for past medical expenses. When that figure was inserted on the reformed verdict form, and the reductions were reapplied, the final judgment in favor of Ms. Dubois and against SMI was for $211,029.09, with judicial interest from June 23, 2006 until paid. On appeal, Ms. Dubois asserts that the trial court erred in denying her JNOV, in granting SMI's JNOV, and in reforming the judgment.

Ms. Dubois also appeals the trial court's assessment of costs equally to both parties, and the trial court's award of judicial interest beginning in 2006 rather than in 2004.

III.STANDARDS OF REVIEW

123456789 Within the guidelines of [La.Code Civ.P. art. 1812 ], the trial court is vested with broad discretion in determining whether to submit special interrogatories to the jury. Black v. Prudential Prop. & Cas. Ins. Co., 93–878 (La.App. 3 Cir. 3/2/94) ; 634 So.2d 1340. It also has wide discretion in the framing of the questions to be posed to the jury. Bell v. Vickers, 568 So.2d 160 (La.App. 2 Cir.1990). Absent a showing of abuse of that discretion, an appellate court may not set aside such determinations. Tramontin v. Glass, 95–744 (La.App. 5 Cir. 1/30/96); 668 So.2d 1252.

Citgo Petroleum Corp. v. Yeargin, Inc., 95–1574, p. 31 (La.App. 3 Cir. 2/19/97), 690 So.2d 154, 172–73, writs denied, 97–1223, 97–1245 (La.9/19/97), 701 So.2d 169, 170. See also, Guillory v. Avondale Shipyards, Inc., 448 So.2d 1281 (La.1984).

A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. Scott [v. Hosp. Serv. Dist. No. 1, 496 So.2d 270 (La.1986) ]. In making this determination, the court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party.

In reviewing a JNOV, the appellate court must first determine if the trial court erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether to grant the motion or not, i.e. do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict? If the answer to that question is in the affirmative, then the trial judge was correct in granting the motion. If, however, reasonable men in the exercise of impartial judgment might reach a different conclusion, then it was error to grant the motion and the jury verdict should be reinstated.

Anderson v. New Orleans Pub. Serv., Inc., 583 So.2d 829, 832 (La.1991).

"The standard of review for a JNOV on appeal is a two part inquiry." Davis v. Wal–Mart Stores, Inc., 00–445, p. 5 (La...