Howard v. United Servs. Auto. Ass'n, 2014 CA 1429.
| Decision Date | 22 July 2015 |
| Docket Number | No. 2014 CA 1429.,2014 CA 1429. |
| Citation | 180 So.3d 384 |
| Parties | Rachel HOWARD and Paul Howard v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Tekisha Greenup, State Farm Mutual Automobile Insurance Company, and the East Baton Rouge Parish School System. |
| Court | Court of Appeal of Louisiana — District of US |
Robert T. Talley, Baton Rouge, LA, Attorney for Plaintiffs–Appellants, Rachel Howard and Paul Howard.
Valerie Briggs Bargas, Baton Rouge, LA, Attorney for Defendants–Appellees, United Services Automobile Association and Tekisha Greenup.
Before PETTIGREW, WELCH, and CHUTZ, JJ.
Plaintiffs, Rachel and Paul Howard (plaintiffs), appeal a March 5, 2014 judgment rendered in their favor after a jury trial, awarding personal injury damages sustained by Ms. Howard, as a result of her vehicle being rear-ended and pushed through a wooden fence, by a vehicle driven by the defendant Tekisha Greenup (Ms. Greenup), on August 10, 2009. Plaintiffs also appeal a November 14, 2013 pretrial judgment of the district court that sustained exceptions raising the objections of no right and no cause of action in favor of the defendants, Ms. Greenup and her automobile liability insurer, United Services Automobile Insurance Association (USAA), dismissing plaintiffs' claims against them for statutory penalties and attorney fees. That same judgment also granted the defendants' motion to adjudicate credits in the amount of the policy limits paid to Ms. Howard by State Farm Mutual Automobile Insurance Company (State Farm), plaintiffs' UM insurer.
After a thorough review of plaintiffs' assignments of error, the applicable law, and the record before us, for the reasons that follow, we reverse in part the November 14, 2013 judgment, specifically, the adjudication of a $5,000.00 credit to USAA for medical payments benefits paid to Ms. Howard by State Farm. We also amend the language of the November 14, 2013 judgment, to specify that the remaining $10,000.00 credit is awarded only insofar as the judgment was in excess of USAA's policy limits; and, as amended, affirm in part. We further amend the March 5, 2014 judgment, to award Mr. Howard $3,000.00 for loss of consortium; and, as amended, affirm that judgment.
It is undisputed that on August 10, 2009, a vehicle driven by Ms. Greenup rear-ended a vehicle driven by Ms. Howard. At the time of this appeal, it is also undisputed that Ms. Greenup was 100 percent at fault in causing the accident. The issues on appeal concern causation of injuries, quantum, and certain pretrial rulings by the district court.
At the time of the accident, Ms. Greenup was insured by USAA with policy limits of $25,000.00; and Ms. Howard had UM coverage through a State Farm policy with limits of $10,000.00. At the time of the trial, Ms. Howard had received from State Farm her UM policy limits of $10,000.00 and medical payments benefits of $5,000.00, but plaintiffs had received no payments from USAA.
In a petition for damages filed August 9, 2010, plaintiffs alleged that as a result of the accident, Ms. Howard sustained serious injuries to her neck, back, and head that necessitated surgical intervention and would require future medical treatment.1
In a pretrial order, the defendants stated their intent to stipulate to Ms. Greenup's liability for the accident, but specifically reserved all rights to defend against the personal injury claims of plaintiffs on the basis of causation and extent of injury. In that same pretrial order, USAA asserted that it had offered to settle plaintiffs' claims "on numerous occasions" for its policy limits of $25,000.00, but that plaintiffs refused to accept the tender and release Ms. Greenup; thus, the matter proceeded to trial.
Prior to the jury trial on the merits, the defendants filed a motion to adjudicate credits, asserting that any judgment that may be cast against them in excess of its policy limits should be reduced by $15,000.00, the amount recovered by plaintiffs in the pretrial settlement with State Farm. In support of this claim, USAA attached a letter from State Farm to counsel for USAA, confirming that State Farm would not pursue any rights to subrogation of the payments it made to plaintiffs. USAA also argued that the credit was not prohibited by the collateral source rule since State Farm and USAA are solidary obligors and the victim is not entitled to a windfall resulting from payments by solidary obligors.
Also, prior to trial, USAA filed a peremptory exception raising the objections of no right and/or no cause of action as to plaintiffs' claims against it for statutory penalties and attorney fees pursuant to La. R.S. 22:1892 and 22:1973. USAA alleged that those "bad faith" penalty statutes are inapplicable to it, a third-party claim defendant.
The district court agreed with defendants on both issues, and by judgment dated November 14, 2013, sustained the exceptions, dismissing the "bad faith" claims, and granted the motion to adjudicate a credit of $15,000.00 in favor of USAA and Ms. Greenup to any judgment awarded in favor of plaintiffs.
At the close of plaintiffs' presentation of their case at trial, defendants moved for a directed verdict, seeking dismissal of all of plaintiffs' claims for future damages, both physical pain and suffering and medical expenses, based on their assertion that plaintiffs had failed to prove the probability of any such future damages or any need for future treatment. Subject to plaintiffs' objection, the district court granted the motion and dismissed all claims for future damages. (Plaintiffs proffered the testimony of Dr. Sean K. Graham to preserve the issue of future damages and/or treatment for review on appeal.)
Following the three-day trial, the jury awarded Ms. Howard a total of $42,000.00. The verdict consisted of an award of $30,000.00 for past medical expenses, $2,500.00 for past lost wages, and $9,500.00 in general damages. The jury rejected Mr. Howard's claim for loss of consortium damages. The final judgment rendered by the district court provided that the jury award of $42,000.00 was subject to a credit in the amount of $15,000.00 (payments received by plaintiffs from their State Farm policy), resulting in a total award to plaintiffs of $27,000.00, subject to applicable policy limits. The judgment further specified that the defendants (Ms. Greenup and USAA) were liable in solido for $25,000.00 of the award, together with legal interest, expert witness fees of $5,000.00, and costs of the proceedings; and Ms. Greenup was assessed with sole liability for the additional $2,000.00, which resulted in a net award to plaintiffs of $27,000.00.
On appeal, plaintiffs assert eleven assignments of error, the majority of which challenge the amount of quantum. Plaintiffs argue that the amounts awarded by the jury were abusively low in light of the evidence presented. Additionally, plaintiffs assign error to the rulings of the district court disallowing their claims for future damages, as well as dismissing their claims for penalties and allowing defendants a credit for the $15,000.00 paid by plaintiffs' UM carrier. Finally, plaintiffs assert that no evidence of "applicable policy limits" was introduced by USAA; thus, they assign error to the district court's failure to cast the defendants liable in solido for the full amount of the judgment.
At trial, Ms. Howard testified, as did her husband, her sister, several co-workers, one treating physician, Dr. Sean K. Graham (an interventional pain management physician at the Spine Diagnostic & Pain Treatment Center), and defendant, Ms. Greenup. Plaintiffs also introduced into evidence Ms. Howard's medical records and photographs of both vehicles involved in the accident.
Notably, and as discussed in more detail below, the record reveals, in several places, that Ms. Howard's version of her medical history (predating the accident) and the injuries she related to the accident were inconsistent when compared with her medical records. Most significantly, Ms. Howard claimed that as a result of this automobile accident, she developed migraine headaches and also suffered from depression and anxiety. She denied ever having these symptoms prior to the accident. However, her medical records reveal a long-standing history of migraine headaches, for which she was prescribed and took pain medication long before the accident. Her medical records also reveal that she had a history of depression and anxiety, also predating the accident, for which she was also prescribed and took medication. Furthermore, there are several significant gaps in Ms. Howard's medical history after the accident when she did not seek any treatment at all, and during which time she was presumably pain and symptom free.
The medical records indicate that Ms. Howard was taken by ambulance from the accident scene to the emergency room at Our Lady of the Lake Regional Medical Center (OLOL). Upon arrival, she complained of neck pain, headache, nausea, and ringing in her ears. She was given medication for the pain and nausea. Although Ms. Howard testified at trial that the doctors at OLOL told her that her vertebrae "was misaligned," the results of the CT scan
of the cervical spine and cervical spine x-rays taken at OLOL revealed no abnormalities, no fractures, "normal disc spaces," and indicated only "[m]inimal degenerative change at C4–5." Moreover, Ms. Howard was discharged hours later with the diagnosis of neck sprain secondary to a motor vehicle accident. Her discharge instructions specifically noted "No Serious Injury" and that Ms. Howard was being prescribed a heating pad for her neck every 3–4 hours as needed and pain and muscle spasm medications to be taken as needed. She was also advised to seek follow-up care from her personal primary care physician.
Ms. Howard went to see her primary care physician, Dr. Thomas Perkins, the following day, complaining of neck and head pain. Dr. Perkins' records denote no...
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