Edwards v. Daugherty

• Citation: 729 So.2d 1112
• Decision Date: 10 March 1999
• Docket Number: No. 97-1542.,97-1542.
• Parties: Virginia Gail EDWARDS, et al., Plaintiffs—Appellees, v. Edward M. DAUGHERTY, et al., Defendants—Appellants.
• Court: Court of Appeal of Louisiana (US)

729 So.2d 1112

Virginia Gail EDWARDS, et al., Plaintiffs—Appellees, v. Edward M. DAUGHERTY, et al., Defendants—Appellants.

No. 97-1542.

Court of Appeal of Louisiana, Third Circuit.

March 10, 1999.

Rehearing Denied April 14, 1999.

Clayton Arthur Larsh Davis, Reuvan Nathan Rougeau, Samuel B. Gabb, Lake Charles, for Virginia Gail Edwards etc.

Michael Steven Beverung, Lake Charles, Robert E. Morgan, David Wooley, for Wayne McElveen Sheriff of Cacasieu Parish.

David Ross Frohn, Lake Charles, Harry Alston Johnson III, Elizabeth Broooks Hollins, Lake Charles, for Sphere Drake Ins. Co.

BEFORE: YELVERTON, COOKS and SULLIVAN, Judges.

COOKS, Judge.

On December 22, 1993, Sissy Woodard was traveling south on Davis Road just north of Westlake, Louisiana. When Sissy stopped in the roadway, intending to turn left into her private driveway, another vehicle driven by Gary Bailey collided with the rear of her vehicle. Both vehicles were "pulled over" to the right-hand side of Davis Road, remaining partially on the roadway.

Donald Handy, a nearby resident and a former police officer, approached the scene of the accident and attempted to aid the drivers. He checked for injuries and instructed the drivers not to move their vehicles. Handy also brought with him two flashing strobe lights and began directing traffic through the accident scene. Jaymie Edwards, also a nearby resident, offered to assist Handy in directing traffic. With Edwards positioned at the north end of the accident scene and Handy at the south end, the two began to allow alternating traffic to flow through the scene.

While directing traffic at the north end of the accident scene, Jaymie Edwards stopped a station wagon driven by Florence Baldwin. Shortly thereafter, an automobile driven by Edward M. Daugherty rear-ended Baldwin's vehicle. The force of the collision propelled Baldwin's vehicle into Edwards, who was standing with his back facing Baldwin's car. Edwards sustained severe physical injuries. Daugherty's blood alcohol level was 0.25 grams percent, significantly above the legal limit of 0.10 grams percent.

Like a tale from Ripley's "Believe It or Not," the ambulance summoned to attend Edwards was struck by a vehicle driven by David Blanchard while en route to the hospital. The trial court later found, however, "there was no evidence to suggest that this accident was serious or in any way aggravated Jamie's [sic] already serious injuries."

Suit was filed on behalf of Jaymie Edwards by his co-curatrixes and on behalf of his three children (for loss of consortium) by their natural tutrix. Made defendants were the following: (1) Edward M. Daugherty, the intoxicated driver, and his insurer; (2) the driver of the vehicle (Florence Baldwin) that was rear-ended by Daugherty and her insurer; (3) the driver (Gary Bailey) who rearended the left-turning motorist in the original accident and his insurer; (4) the parties involved in the ambulance accident and their insurers; (5) Sheriff Wayne McElveen of the Calcasieu Parish Sheriff's Department (whose deputies allegedly passed through the accident scene without rendering assistance); (6) the City of Westlake and one of its officers, Henry Simms (who allegedly passed the accident scene), and its insurer.

Numerous incidental demands were filed among the defendants, including a third-party demand against the City of Westlake and Donald Handy. Prior to trial, all parties were dismissed either via summary judgment or settlement except for Sheriff McElveen and his insurance company, Sphere Drake, and Edward M. Daugherty. The Sheriff's third-party demand against Donald Handy was dismissed after trial commenced, but prior to judgment.

ACTION OF THE TRIAL COURT

There were numerous pre-trial procedural disputes. Of particular significance were the requested recusal of the trial judge and the request by the Sheriff and Sphere Drake for a jury trial. The trial judge denied the motion for jury trial on the eve of the scheduled trial. Writs were filed by the Sheriff and Sphere Drake with this court. We denied both the Sheriff's and Sphere Drake's applications, noting no appropriate waiver of the right to non-jury trial was submitted by the Sheriff. Sphere Drake then sought supervisory review of our ruling and the Louisiana Supreme Court unanimously found it was entitled to a trial by jury. The Sheriff did not seek supervisory review; instead, the Sheriff filed a second motion for a jury trial and attached a resolution purportedly waiving his right to a non-jury trial in this case. The motion was argued and denied by the trial judge. Writs filed by the Sheriff with this court and the Supreme Court also were denied.

The Sheriff then moved to recuse the trial judge, specifically referencing certain public statements he allegedly uttered regarding the Sheriff's Office and criminal charges against his son. The motion was referred to Judge William McLeod, and after a hearing, it was granted. Plaintiffs then filed a writ application with this court on the recusal ruling. Ultimately, the writ was granted; and this court reversed the recusal judgment. The Sheriff applied to the Supreme Court for a supervisory writ on this issue. His application was denied.

When trial commenced, the issues as to all parties other than the Sheriff were tried by a jury and the issues relating to the Sheriff were tried by the judge alone. At the trial's conclusion, the jury returned a verdict finding Edward Daugherty (the intoxicated driver) 67.5% at fault and the Sheriff 32.5% at fault. No fault was assigned to Jaymie Edwards. The jury awarded Jaymie Edwards $185,000 in past due medical expenses, $1,250,000 in future medical expenses, $84,100 in past income loss, and $346,160 in future income loss. Each of the Edwards children were awarded $25,000 for loss of consortium. The jury did not award Jaymie Edwards any sum for past and future pain and suffering, mental anguish, or loss of enjoyment of life. The trial judge later entered a "judgment on the jury verdict" reflecting the jury's determinations.

For reasons assigned, the trial judge also entered a judgment resolving the issues involving the Sheriff. The trial judge assessed the Sheriff with 55% fault, and Daugherty with the remaining 45% fault in causing the accident. He awarded past medical expenses of $183,633, future medical expenses of $1,045,690, past income loss of $104,533 and future income loss of $894,312. He also awarded Jaymie Edwards $800,000 for past and future pain and suffering, mental anguish and loss of enjoyment of life. He awarded $150,000 for loss of consortium to Jennifer Edwards, and $100,000 for loss of consortium to both Janet Edwards and Jaymie Edwards, II.

Plaintiffs filed a motion for judgment notwithstanding the verdict (JNOV), in large part because of the jury's failure to make an award for pain and suffering and loss of enjoyment of life. In response to this motion, the trial judge granted the motion, "revising the jury verdict." The jury's apportionment of fault remained unchanged, but the trial judge altered the quantum awards for past medical expenses ($185,000 to $183,633), future income loss ($346,160 to $894,312) and loss of consortium ($25,000 for each of the three children to $100,000 for each child). The trial judge also awarded $800,000 for past and future pain and suffering and loss of enjoyment of life. After the grant of the JNOV the two judgments were as follows:

JUDGE JURY I. Apportionment of Fault Sheriff McElveen 55% 32.5% Edward Daugherty 45% 67.5% Jaymie Edwards 0% 0.0% II. Damages Jaymie Edwards a) Pain and Suffering; Loss of $ 800,000 $ 800,000 Enjoyment of Life b) Medical Expenses (I) Past $ 183,633 $ 183,633 (ii) Future $1,045,690 $1,250,000 c) Income Loss (I) Past $ 104,533 $ 84,100 (ii) Future $ 894,312 $ 894,312 Jennifer Edwards $ 150,000 $ 100,000 Janet Edwards $ 100,000 $ 100,000 Jaymie Edwards, II $ 100,000 $ 100,000 __________ __________ TOTAL DAMAGES $3,378,168 $3,512,045

The Sheriff suspensively appealed the judgments and now asserts the following assignments of error:

1. The trial court erred in failing to recuse Judge Carter, who maintained strong bias against Sheriff Wayne McElveen, the defendant/appellant herein and his deputies, from presiding in this case.

2. The trial court erred in denying Sheriff Wayne McElveen a trial by jury.

3. The trial court erred in its determination apportioning fault to Sheriff Wayne McElveen.

4. The trial court erred in not apportioning any fault to Donald Handy.

5. The trial court erred in not apportioning any fault to the City of Westlake.

6. The trial court erred in not apportioning any fault to Jaymie Edwards.

7. The trial court erred in apportioning only forty-five (45%) percent of liability to Edward M. Daugherty.

8. The trial court erred in awarding excessive damages to Jaymie Edwards, and his three minor daughters for loss of consortium.

Sphere Drake also filed an appeal and, while generally adopting the assignments of error advanced by its insured (the Sheriff), it specifically assigned the following additional errors:

1. The trial court erred in declining to include in the jury interrogatories an inquiry as to possible fault of certain non-parties as to whose involvement evidence was adduced at the trial, leading in turn to an improper allocation of fault.

2. The trial court and the jury erred in the conclusion that plaintiffs had established a cause-in-fact relationship between the alleged conduct of the sheriff's deputies and the risk that occurred.

3. The trial court and the jury erred in the conclusion that the ambit of protection spread by the duty imposed upon the sheriff's deputies properly included the risk that occurred.

4. The trial court erred in its determination and assessment of certain elements of damages awarded to plaintiffs.

Plaintiffs, in answering the Sheriff's appeal, seek an increase in the awards for future medical expenses, as well as...