Guillory v. Lee

Decision Date26 June 2009
Docket NumberNo. 2009-C-0075.,2009-C-0075.
Citation16 So.3d 1104
PartiesByron P. GUILLORY v. Jennifer D. LEE, et al.
CourtLouisiana Supreme Court

Lafayette; Boyer, Hebert & Abels, LLC, Brian Keith Abels, for Respondent.

KIMBALL, Chief Justice.*

We granted certiorari in this matter to determine whether the court of appeal correctly applied the appropriate standard of review in amending the jury verdict to award a total of $272,272.32 to plaintiff for injuries allegedly sustained in an automobile accident. Further, we granted certiorari in this matter to determine whether the court of appeal erred in reversing the trial court's denial of plaintiffs request for a new trial. Finally, we must determine whether the court of appeal erred in finding defendant, Progressive Security Insurance Company, acted in an arbitrary and capricious manner in failing to make a second unconditional tender to plaintiff, thereby warranting an award of penalties in the amount of $8,740.00 and an award of attorney's fees in the amount of $25,000. For the reasons that follow, we find the court of appeal was in error in all of the above respects and therefore, reverse its ruling in that regard and reinstate the jury's verdict.

Facts and Procedural History

On the morning of January 14, 2005, plaintiff Byron Guillory was transporting his daughter to her school bus stop in Lafayette, Louisiana in his 2000 Ford F-250 diesel three-quarter ton pickup truck. While traveling in the right turning lane of Kaliste Saloom Road, with the intent to turn right on Camellia, plaintiff was struck on his left rear quarter panel and bumper by a 1998 Ford Explorer driven by defendant Jennifer D. Lee, who was transporting herself and her passenger Amy Young to school. The passenger side of the Explorer scraped alongside the driver side of the truck, causing damage to the passenger side of the Explorer, as well as causing the passenger side mirror of the Explorer to break from its bracket. Lee maintained that while she was traveling in the far right lane next to the turning lane on Kaliste Saloom, a Cox Communications service van on her left veered into her lane, causing her to take evasive action to the right, which in turn caused her to strike plaintiffs vehicle. Lee was cited for careless operation of a vehicle, and no injuries were reported by any party to the investigating officer at the scene of the accident. An independent witness to the accident, Sally Jones, later gave a statement and testified that she saw no Cox Communications van in the vicinity at the time of the accident. Plaintiff also testified that he did not see a Cox van at the time of the accident.

Although plaintiff reported no injuries at the scene of the accident, on January 11, 2006, plaintiff filed suit in the 15th Judicial District Court against several defendants, including Jennifer D. Lee (hereinafter "Lee"), Donna Lee, State Farm Insurance Company, and plaintiffs own insurer, Progressive Security Insurance Company ("Progressive"),1 for injuries to his back, neck, and thumb allegedly sustained as a result of the subject accident. Progressive answered plaintiffs Petition on April 27, 2006, and filed a Supplemental and Amending Answer on May 10, 2006, asserting the affirmative defense that a third party for whom Progressive is not responsible, namely Cox Communications, caused a sudden emergency to which defendant Lee had to react. On April 6, 2006, plaintiff filed a First Supplemental and Amending Petition for Damages, naming Cox Communications as an additional defendant. Cox answered plaintiffs Amending Petition on October 31, 2006.

On December 12, 2006, the trial court signed a judgment of dismissal, dismissing defendants State Farm Insurance Company, Jennifer D. Lee, and Donna Lee, as a result of a settlement among them. According to the record, plaintiff received the $10,000 policy limits of Lee's State Farm policy as a result of this settlement. Also, under the terms of his insurance policy with Progressive, plaintiff received a tender of the full $5,000 medical payments coverage from Progressive at some point between the date of the accident and the time plaintiff filed his lawsuit.2 Plaintiff also received an unconditional tender from Progressive on February 22, 2006, in the amount of $5,020, based upon its evaluation of the insured's claim to date.

On July 26, 2007, plaintiff filed a Second Supplemental and Amending Petition for Damages, asserting a claim for penalties and attorney's fees as a result of Progressive's alleged arbitrary and capricious behavior in failing to make an unconditional tender to plaintiff.3

A four day jury trial began in Acadia Parish on October 27, 2009, and concluded on November 1, 2007. The jury unanimously found defendant Jennifer Lee was negligent and 100% at fault for the accident that occurred on January 14, 2005, and further found the Cox Communications driver was not negligent, nor was he a cause of the accident. The jury did find plaintiff was injured as a result of the subject accident, and awarded him $40,000 for past medical expenses, $10,000 for future medical expenses, and $10,000 for physical and mental pain and suffering, past and future. The jury gave plaintiff no award for loss of enjoyment of life. Finally, the jury found no arbitrary or capricious behavior on the part of Progressive for an alleged failure to pay plaintiff's claim timely after receiving satisfactory proof of loss. A judgment to this effect was rendered and signed by the trial court on November 16, 2007.

Also on November 16, 2007, plaintiff filed a Motion for Judgment Notwithstanding the Verdict or in the Alternative for New Trial or Additur ("Motion for JNOV"), asserting that the awards rendered by the jury in this matter were abusively low with respect to the evidence offered at trial and could not be reconciled, as plaintiff set forth itemized medical expenses which totaled $98,272.32. According to the plaintiff, based upon the jury's query regarding health insurance during deliberation and its award for only $40,000 for past medical expenses, the only logical explanation is that the jury chose to ignore the trial judge's instruction on the collateral source rule and discounted health insurance payments made to medical care providers on the plaintiffs behalf.4

Also in its Motion for JNOV, plaintiff asserted that the jury's award for past and future mental pain and suffering of $10,000 is so woefully inadequate as to be an abuse of the jury's discretion. Further, concerning the jury's non-award for loss of enjoyment of life, plaintiff argued that not only did plaintiffs doctors place weight (lifting) restrictions on him, plaintiffs own testimony showed that although he was able to participate in certain activities and hobbies after the accident, he could not do so without experiencing pain. Finally, concerning plaintiffs bad faith claims for penalties against Progressive under La. R.S. 22:658 and La. R.S. 22:1220,5 plaintiff asserted the jury's determination that Progressive did not act in an arbitrary and capricious manner is contrary to both the law and the evidence.6

Progressive opposed plaintiffs Motion for JNOV, stating that the jury's findings were supported by both evidence and the law. More specifically, Progressive asserted the evidence established that the impact between Lee and plaintiff was minor, as plaintiff, a chronic pain patient under active medical treatment at the time of the accident, denied any injuries following the accident. Moreover, plaintiff failed to acknowledge or apply the appropriate standards for granting a JNOV, new trial, or additur, as found in the Louisiana Code of Civil Procedure. Progressive argued the jury's awards were reasonable in light of the evidence presented. Plaintiffs medical expenses for the diagnostic tests and treatment he underwent, but not the expenses related to his surgeries or treatment for temporomandibular joint disorder ("TMJ"), totaled approximately $40,000, which was the jury's award for past medical expenses.

Secondly, regarding the award for past and future mental pain and suffering as well as the non-award for loss of enjoyment of life, Progressive argued plaintiff possessed a chronic pain condition and other pre-existing medical problems prior to the accident. Furthermore, plaintiff reported to Dr. Norman E. Anseman, M.D. ("Dr. Anseman"), one of his treating physicians, that he was 85% better approximately nine months following the accident. Also, according to Progressive, plaintiff participated in several activities in the year(s) following the accident, including numerous elk hunting trips to New Mexico, sailing in the Carribean, and fishing in Cabo San Lucas. As a result, the jury concluded that the subject accident caused plaintiff only minor periods of minimal aggravation of his pre-existing condition, and its verdict was reasonable in light of the evidence presented.

Finally, concerning plaintiffs bad faith claim against Progressive, it argued the jury was instructed that an insurer is not in bad faith when there is a reasonable and legitimate question as to the extent and causation of the claim, and further, statutory penalties are inappropriate when the insurer has a reasonable basis to defend the claim and acts in good faith reliance on that defense. Given the evidence presented at trial regarding the causal connection of plaintiffs claims to this accident and the jury's corresponding award, Progressive argued it is clear that reasonable minds could differ and the jury's objection to the claim was reasonable.

Following a hearing on December 17, 2007, a judgment was issued on February 14, 2008, denying plaintiffs Motion for Judgment Notwithstanding the Verdict or in the Alternative for New Trial or Addit...

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