Horton v. McCrary

• Decision Date: 02 June 1993
• Docket Number: No. 92-1123,92-1123
• Citation: Horton v. McCrary, 620 So.2d 918 (La. App. 1993)
• Parties: Charles Edward HORTON, et al., Plaintiffs-Appellees, v. Carl C. McCRARY, et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana

Page 918

620 So.2d 918

Charles Edward HORTON, et al., Plaintiffs-Appellees, v. Carl C. McCRARY, et al., Defendants-Appellants.

No. 92-1123.

Court of Appeal of Louisiana Third Circuit.

June 2, 1993.

Rehearing Denied July 30, 1993.

Kenneth D. McCoy, Jr., Dee A.U. Hawthorne, for Charles Edward Horton et al.

John J. Weigel, Deborah A. Van Meter, for Carl McCary et al.

Sidney Albert Cook, for Aetna Cas. & Sur. Co.

Jack O. Brittain, for Ins. Co. of North America.

Joe Payne Williams, for Bluebonnet Administrators.

Gordon E. Rountree, for amicus curiae.

Before DOUCET, KNOLL and COOKS, JJ.

KNOLL, Judge.

This appeal addresses two judgments. The first is a default judgment entered on the issue of liability when certain defendants failed to comply with a discovery order. The second is a judgment in the jury trial which determined the damages plaintiffs suffered.

Charles Edward Horton, his wife, Linda J. Horton, and their son, Timothy S. Horton, sought damages for injuries and losses they sustained on December 22, 1988, when an eighteen wheeler driven by Carl McCrary crossed the highway and crashed head-on into the Horton vehicle on the shoulder of the highway.

On December 19, 1989, the Hortons sued: McCrary; his employer, Allied Systems, Ltd.; Auto Convoy, Ltd., one of Allied Systems general partners; Phoenix Enterprises, the owner of the truck driven by McCrary and the sole limited partner of Allied Systems; Liberty Mutual Insurance Company, the insurer of Allied Systems, Auto Convoy, and Phoenix; Aetna Life & Casualty Insurance Company, the Hortons' personal uninsured motorist insurer; Insurance Company of North America (INA), the company which provided uninsured motorist coverage on the automobile the Hortons were riding; the Succession of Robert Clark, the driver of another vehicle involved in the collisions; and Louisiana Indemnity Company (Louisiana Indemnity), the insurer of Robert Clark.

Louisiana Indemnity was dismissed by summary judgment after it paid its policy limits. INA settled with the Hortons prior to trial and filed an intervention against defendants. Likewise, Bluebonnet Administrators, the Hortons' hospitalization insurer at the time of the accident, filed an intervention against defendants.

On December 19, 1991, the trial court entered a default judgment on liability against McCrary, Auto Convoy, Allied Systems, and Phoenix Enterprises as a sanction when they failed to adequately respond to the Hortons' discovery request. In addition, the trial court ordered defendants to pay attorney's fees of $3,000. No motion for new trial was filed. Writs to the Third Circuit were denied on the entry of the default judgment on the issue of liability. Accordingly, on January 21, 1992, the defaulted defendants filed a motion for a suspensive appeal. In the interim, a writ application filed by the defaulted defendants with the Louisiana Supreme Court was denied.

On January 22, 1992, a week-long jury trial began to determine the amount of damages due the Hortons. The jury awarded damages of $1,965,586.63 to Ed Horton; $538,177.81 to Linda Horton; and $457,420.41 to Tim Horton. During trial, Aetna settled the uninsured motorist claims with the Hortons. The remaining defendants moved for a new trial on damages; after a hearing, the trial court denied the defendants' motion. The defendants then perfected an additional appeal from the jury verdict which awarded damages.

McCrary, Phoenix Enterprises, Auto Convoy, Allied Systems, and Liberty Mutual appeal, contending: (1) the trial court abused its discretion in entering the default judgment on the issue of liability as a sanction for the failure to comply with discovery orders; (2) the trial court erred in failing to grant defendants' motion for a new trial from the jury verdict on the issue of damages, since it was reversible error for the trial court not to apportion fault between the remaining defendants; (3) the trial court made improper evidentiary rulings concerning expert witnesses and the admission of documentary evidence; (4) the jury charges were confusing and misleading to the jury and constitute reversible error; (5) the jury verdict form was improper in that it duplicated items of damages; (6) the jury abused its discretion by granting excessive general damages and loss of consortium awards to the Hortons; (7) the jury abused its discretion in its award for past and future loss earnings and earnings capacity to Charles Horton; and, (8) the jury abused its discretion in awarding Tim Horton for his lost opportunity for a career in professional baseball, since this award was not supported by the evidence. We affirm.

FACTS

This accident occurred on December 22, 1988, as the Horton vehicle traveled south on Louisiana Highway 1 from Shreveport to their home in Natchitoches. Mr. Horton was driving, Mrs. Horton was in the back seat, and Tim, a college freshman who was attending Northwestern State University on a baseball scholarship, was in the front passenger seat. Mr. Horton was 45 years of age and was employed by Sam Friedman as an auditor and supervisor of hotel/motel development nationwide. Mrs. Horton was also 45 years of age at the time of the accident and was employed as a secretary and bookkeeper for the Natchitoches Parish Indigent Defender Board.

Just after passing through Armistead, Louisiana, Mr. Horton slowed down and began to move onto the shoulder of the road because he saw that a serious accident had taken place some distance ahead of them. Just after telling his family that there was an accident ahead, Mr. Horton warned his family that they were about to become involved in a head-on collision. Mrs. Horton testified that after hearing her husband's warning, she leaned forward to look; there she saw a northbound eighteen wheeler cross into the southbound lane and it angled directly toward them, striking them head-on on the shoulder of the road.

The force of the collision pushed the Horton vehicle off the highway and into a water-filled ditch alongside the highway. Mr. and Mrs. Horton were in their vehicle knee-deep in water. Tim was hip-deep in water.

Mr. Horton testified that he roused himself long enough to learn that his son was still alive. Then he lost consciousness. Tim momentarily lost consciousness and then woke up to see his father's face bloodied. Mrs. Horton did not lose consciousness. She said that she could tell that her husband was seriously hurt and thought that he might be dying. Tim's left leg was broken.

Emergency medical personnel removed the Hortons from their automobile. Tim and his father were brought in the same ambulance to Huckaby Clinic. Tim testified that he thought his father was dying because he had difficulty breathing. Mrs. Horton was taken in a separate ambulance to the same clinic.

After stabilizing the Hortons, all three were transported to Schumpert Medical Center in Shreveport. Mr. Horton received a closed head trauma, fractured ribs, a collapsed lung, broken teeth, various lacerations and contusions, and a permanently damaged fourth cranial nerve, resulting in diplopia (double vision). He remained hospitalized for twelve days until January 4, 1989. Mrs. Horton had a laceration of her ear, fractured ribs, and fractures of both collar bones. She was discharged with her husband on January 4, 1989. Tim's broken left leg required surgery. Because of the development of blood clots, Tim remained hospitalized at Schumpert until January 11, 1989. The Hortons' injuries will be detailed later.

SANCTION OF DEFAULT JUDGMENT OF LIABILITY

McCrary, Phoenix Enterprises, Auto Convoy, Allied Systems and Liberty Mutual (hereafter the defendants) contend that the trial court abused its discretion by entering a default judgment against them on the issue of liability as a sanction for failure to comply with discovery.

Factual background. On May 23, 1991, the Hortons submitted interrogatories and requests for production of documents to defendants. Defendants neither filed objections to this discovery nor sought a motion for protective order. In July of 1991, a trial date of January 21, 1992, was fixed.

On October 15, 1991, defense counsel informed plaintiffs' counsel that he was unable to respond fully to the discovery requests because the defendants had not provided him with all of the necessary information. When no further response was had, plaintiffs' counsel filed a motion to compel discovery on October 23, 1991. A hearing on plaintiffs' motion was set for November 13, 1991.

At the November 13 hearing, the record reflects the following colloquy:

"MS. HAWTHORNE: Your Honor, I represent the Hortons and you can see by my motion that we filed discovery somewhere in mid-summer and have gotten absolutely no response, no filed response. Mr. Hunter [counsel for defendants] has given me a couple of things but there's no response filed, and the company is apparently refusing to agree to allow him to release anything to me.

And I want an order to compel them to do so because we set this trial for the end of January with the understanding that everybody was going to cooperate and get this done.

THE COURT: All right. Let's see if I understand. You have asked for the discovery of documents and for answering of ...

MS. HAWTHORNE: And interrogatories.

THE COURT: And interrogatories, all right.

MS. HAWTHORNE: There's nothing filed.

THE COURT: Now, Mr. Hunter, what do your people tell you and what is ...

MR. HUNTER: Your Honor, I've prepared interrogatories in response and I've got a client or the trucking company that's located closed [sic] to Atlanta, Georgia, that has to approve them. It's hung up in their approval process and ..."

Plaintiffs' counsel then asked the trial court to issue an order compelling defendants to respond fully to the discovery request, and asked that the defendants be specifically warned that failure to comply with discovery could result in sanctions including the issuance of a default...