Hoyt v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 02 July 1993
• Docket Number: Nos. CA,s. CA
• Citation: 623 So.2d 651
• Parties: Jewel HOYT, Individually and as Administrator of the Estate of the Minor Michael Hoyt v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al. Milton J. WATTS and Gregory T. Watts v. AETNA CASUALTY AND SURETY COMPANY. 92 0750, CA 92 0751.
• Court: Court of Appeal of Louisiana — District of US

Page 651

623 So.2d 651

Jewel HOYT, Individually and as Administrator of the Estate

of the Minor Michael Hoyt v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.

Milton J. WATTS and Gregory T. Watts v. AETNA CASUALTY AND SURETY COMPANY.

Nos. CA 92 0750, CA 92 0751.

Court of Appeal of Louisiana First Circuit.

July 2, 1993.

Opinion Granting Rehearing in

Part and Denying Rehearing in Part

Sept. 14, 1993.

Writ Denied Dec. 20, 1993.

Steve Dittman, Bob Ates, New Orleans and Paul Billingsly, Hammond, for plaintiff-appellant Jewel Hoyt.

Karen Eddleman, Baton Rouge, for Milton and Gregory Watts.

Richard Thomas, Baton Rouge, for State Farm Ins. Co.

Ron Macaluso and Paul Peatross, Hammond, for defendant-appellant State Farm Ins. Co.

Gregory G. Gremillion, Gretna, for Aetna Cas. & Sur. Co.

Before EDWARDS, SHORTESS and WHIPPLE, JJ.

WHIPPLE, Judge.

This appeal arises from an automobile accident which occurred in July, 1983. Following trial on the merits, the jury returned a verdict in favor of plaintiffs, and against defendant, State Farm Mutual Automobile Insurance Company (State Farm), in the amount of $57,664.48. A judgment was signed in accordance with the jury's verdict. Plaintiffs filed a motion for judgment notwithstanding the verdict (JNOV) on the issue of damages, or alternatively, a new trial on damages, or alternatively, an additur. The trial court denied the motion for new trial, granted the motion for JNOV and increased the general damage award from $22,500.00 to $60,000.00. Plaintiffs and defendants appeal.

FACTS AND PROCEDURAL HISTORY

On July 23, 1983, thirteen year old Michael Hoyt was a passenger in the back of a Chevrolet pick-up truck owned and operated by a family friend, Glema Kinchen. On the date of the accident, Randy Byrd (Byrd) was travelling in a Ford Thunderbird in a westerly direction on Louisiana Highway 22 toward its intersection with Kraft Road. While waiting to turn, Byrd came to a complete stop to allow several vehicles to pass. Kinchen's pick-up truck also came to a complete stop behind Byrd's vehicle. The accident occurred when Gregory Watts, driving a Chevrolet Camaro, failed to realize the Byrd and Kinchen vehicles were stopped and drove his vehicle into the rear of the Kinchen vehicle, forcing it into the Byrd vehicle. The physical evidence and lack of skid marks at the accident scene indicated that Watts failed to apply his brakes and collided into the stopped Kinchen vehicle at an estimated speed of fifty-five miles per hour. Upon impact, Michael Hoyt came over the top of the bed of the pick-up truck striking the pavement head first.

Michael was taken by ambulance to Seventh Ward General Hospital in Hammond, Louisiana, where he was noted as experiencing projectile vomiting, slow side-to-side eye oscillation, and spontaneous movement of all extremities. He was given injections of Valium and diagnosed as having a closed head injury. Michael was then transported to Charity Hospital in New Orleans, Louisiana, where he remained hospitalized until July 28, 1983. While at Charity Hospital, Michael underwent a CT Scan of the brain, which was found to be normal. Michael was discharged from Charity Hospital with a final diagnosis of cerebral concussion.

Michael returned to the Charity Hospital outpatient center several times following his discharge, and on August 7, 1983 a second CT Scan was performed which revealed "patchy increased density in the left parietal region, is more likely due to artifact, than hemorrhage. Mild hemorrhagic contusion is possible in this area." ¹ A follow-up CT Scan was not performed.

According to Michael, his primary complaints following the accident were headaches, memory problems, behavioral problems, and back and neck pain. He was seen by numerous physicians, including Dr. Evan Park Howell, a neurologist; Dr. John R. Pleune, a clinical psychologist; Dr. John D. Jackson, a neurosurgeon, Dr. Alan James Klein, a clinical psychologist; Dr. William Black, a neuropsychologist; Dr. William Bradford Janzen, a clinical psychologist; and Dr. Ralph J. Gessner, an orthopedic surgeon.

On April 5, 1984, Jewel Hoyt, individually and as administrator of the estate of the minor child, Michael Hoyt, filed suit for damages arising from the July 23, 1983 automobile accident.

Named as defendants were: Gregory Watts, the driver of the Chevrolet Camaro; Milton Watts and J. Watts Builders, Inc., as owners of the vehicle being driven by Gregory Watts, and as the employer of Gregory Watts who was alleged to be in the course and scope of his employment at the time of the accident; State Farm Mutual Automobile Insurance Company (State Farm), as the alleged liability insurer of the Watts vehicle; Aetna Casualty and Surety Company (Aetna), as the Hoyt's UM carrier ², and excess insurer of Milton and Gregory Watts ³; and United Pacific Insurance Company, as the UM carrier of Glema Kinchen. The case proceeded to trial against Milton and Gregory Watts, State Farm and Aetna (in its capacity as the Watts' excess insurer). ⁴

Trial was held on March 13-19, 1991. The trial court granted a directed verdict in favor of plaintiffs on the issue of Gregory Watts' liability, and in favor of defendants on the issue of future medical expenses. The trial court denied defendants' motion for directed verdict on the issue of causation of the alleged injuries, and denied plaintiff's motion for a directed verdict on the issue of Michael's comparative fault. The case was submitted to the jury and a verdict was returned in favor of plaintiffs in the total amount of $57,664.48. On March 26, 1991, judgment was rendered in favor of plaintiffs and against State Farm in this amount, in accordance with the jury's verdict. The judgment further stated that "[t]he parties may submit additional documentation with respect to expert witness fees which they desire to tax as costs."

Plaintiffs responded with a "Motion for a Judgment Notwithstanding the Verdict on Damages, or, Alternatively, a New Trial on Damages, or, Alternatively, an Additur." On May 28, 1991, the trial court granted plaintiffs' motion for JNOV and increased the award for general damages from $22,500.00 to $60,000.00. All other provisions of the judgment on the jury verdict were left intact. Plaintiffs' alternative motion for new trial was conditionally denied by the trial court, and the court did not rule on the request for additur, stating the motion was rendered moot by the JNOV.

On July 22, 1991, plaintiffs filed a rule to show cause for assessment of costs to be taxed against State Farm in the amount of $12,378.31. After a hearing, the trial court fixed costs in the amount of $10,298.43 taxed against State Farm.

Both plaintiffs and defendants appeal both the judgment rendered in accordance with the jury's verdict and the judgment granting JNOV. ⁵

On appeal, defendants contend that: (1) the trial court erred in finding sufficient evidence to support a conclusion that plaintiff sustained a back injury as a result of the accident herein; (2) the jury erred in awarding plaintiff general damages which were unreasonably high; (3) or alternatively, the trial court erred in increasing the jury's award for general damages by granting JNOV; (4) the jury erred in awarding damages for loss of earnings or loss of earning capacity without a factual basis in the record for such award; and, (5) the trial court erred in taxing various sums as court costs to be paid by defendants.

Plaintiffs contend on appeal that: (1) the trial court erred in failing to find that the evidence presented at trial warranted an increase in damages to Michael for his closed head injury; (2) the trial court erred in charging the jury concerning aggravation of pre-existing ailments, disorders and conditions; and (3) the jury's awards for general damages, loss of wages and impairment of earning capacity were so unreasonably low as to constitute manifest error.

Thus, the issues presented for review are: (1) whether the trial court improperly instructed the jury; (2) issues related to the quantum of damages awarded as general damages and for loss of earnings and/or earning capacity to which Michael is entitled, and the related issues of causation of his back and neck injuries and alleged mental dysfunction; and (3) the allocation and imposition of court costs.

For purposes of this appeal, plaintiffs' and defendants' assignments of error will be discussed under these general issues. However, before addressing these issues, we feel a review of the jury's answers to interrogatories is warranted for a better understanding of the jury's findings in this case.

JURY INTERROGATORIES

Plaintiffs' position at trial was that as a result of the automobile accident in July of 1983, Michael sustained a closed head injury which resulted in headaches, memory loss, behavioral problems, and mental dysfunction. Plaintiffs also contended that the accident resulted in injuries to Michael's back and neck. Defendants, however, contended at trial that Michael did not sustain a closed head injury, brain injury, impairment or dysfunction as a result of the accident; rather, any mental deficits that Michael was experiencing were the result of a pre-existing learning disability which had been established prior to the accident. Defendants further contended that the back and neck injuries for which plaintiff sought recovery were attributable to a softball injury which occurred after the accident for which defendants can not be held liable.

Interrogatories were submitted to the jury and returned, in pertinent part, as follows:

JURY INTERROGATORIES

1. Was the fault of defendant, Gregory Watts, a proximate cause of Michael

Hoyt's injuries?

YES X NO

-------- --------

2. WITHOUT REGARD to any fault you may find on the part of Michael Hoyt, as

set out in Questions 4, 5, & 6 below, what amounts, if any, in the following

categories will adequately and fairly compensate Plaintiff:

                       (a)

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