Jordan v. Sweeney

• Decision Date: 26 February 1985
• Docket Number: No. CA,CA
• Citation: 467 So.2d 569
• Parties: Michael Scott JORDAN v. Howard K. SWEENEY, et al. 83 1287.
• Court: Court of Appeal of Louisiana — District of US

Page 569

467 So.2d 569

Michael Scott JORDAN v. Howard K. SWEENEY, et al.

No. CA 83 1287.

Court of Appeal of Louisiana First Circuit.

Feb. 26, 1985.

Rehearing Denied April 12, 1985.

Walter R. Krousel, Jr., Steve Marks, Baton Rouge, for plaintiff-appellant.

Ben Louis Day, Roger Fritchie and Ben Lightfoot, Horace C. Lane, Kenneth Barnette and James Morgan, Baton Rouge, for defendants-appellees.

Before COLE, CARTER and LANIER, JJ.

COLE, Judge.

This is a suit for damages stemming from personal injuries.

Presented on appeal is the primary issue of whether or not the claimant, who settled with the tortfeasor, renounced his rights against the uninsured motorist (UM) carrier because he failed to expressly reserve them. Recent jurisprudential development ¹ has resolved this issue adverse to the UM insurer, requiring us to reverse the trial court and to consider the subsidiary issues of medical payments and quantum.

On May 3, 1980 the plaintiff, Michael Scott Jordan, 17 year old son of Norman Jordan, was the guest passenger in an automobile driven by Jeffrey Cole, son of Leonard Cole. An accident, in which plaintiff was injured, was caused by the negligence of Howard K. Sweeney, who was driving an automobile owned by Fred Land. Suit was filed against Sweeney, his insurer (St. Paul), Land, his insurer (Aetna) and the uninsured motorist carrier of Norman Jordan and Leonard Cole, which happened to be State Farm Mutual Automobile Insurance Company in both instances.

Just prior to jury trial, a settlement totaling $177,802.91 was reached with all parties except State Farm and a document was executed releasing those parties. Liability had been previously admitted by all, so the only issue remaining for the jury was damages. State Farm filed the peremptory exception raising the objection of no cause of action. As a basis the objection stated the other parties were released and no reservation of rights was made against State Farm and that, therefore, State Farm, as a solidary obligee, was also released.

The trial court took the exception under advisement. The suit against State Farm proceeded to trial and the jury returned a verdict of $500,000. (The State Farm policy limits are $100,000 each, with $2,000 medical payments under one and $5,000 medical payments under the other.) The court then considered the exception and following the rationale of Hoefly v. Government Employees Ins. Co., 418 So.2d 575 (La.1982), and applying La.Civ.Code art. 2203 concluded State Farm had been released. The plaintiff appealed and State Farm answered the appeal raising, alternatively, the issue of quantum.

PEREMPTORY EXCEPTION

The trial court held the release of the tortfeasor and other liable parties, without an express reservation of rights against the uninsured motorist carrier, releases the uninsured motorist carrier. Thus, the trial court granted the objection of no cause of action raised by the peremptory exception and dismissed plaintiff's claim.

Initially, we note no evidence may be introduced in support of an objection that the petition fails to state a cause of action. La.Code Civ.P. art. 931. However, evidence may be properly considered by the court in this regard where it is admitted without objection. In such case, the pleadings are considered to have been enlarged. Lemieux v. Prudential Ins. Co., 416 So.2d 1347 (La.App. 1st Cir.1982), writ denied, 420 So.2d 454 (La.1982), reconsideration denied, 421 So.2d 247 (La.1982). Therefore, although the release agreement in this instance would not ordinarily be admissible in the trial on the objection of no cause of action, it was properly considered by the trial court because no timely objection to its admission was made. Bielkiewicz v. Rudisill, 201 So.2d 136, 143 (La.App. 3d Cir.1967); cf. Boudreaux v. Government Employees Ins. Co., 454 So.2d 135, 137 (La.App. 1st Cir.1984).

The trial court submitted a well reasoned opinion on the issue of release. However, subsequent thereto the clarification of this complex area of the law evolved. In Boudreaux, the court held the release of a tort-feasor and his liability insurer did not release the uninsured and underinsured motorist carrier. The court based its decision on the broad policy in favor of uninsured motorist coverage embodied in La.R.S. 22:1406 D(4) as noted in the case of Niemann v. Travelers Ins. Co., 368 So.2d 1003 (La.1979). Soon after, the Louisiana Supreme Court expanded on this holding in Carona v. State Farm Insurance Co., 458 So.2d 1275 (La.1984) by citing criticism of La.Civ.Code art. 2203 and reiterating the policy supporting the enactment of La.R.S. 22:1406(D). Thus, the jurisprudence is abundantly clear State Farm is still subject to any right of recovery the plaintiff may be entitled to in this instance against the uninsured motorist policies. ² Further, in light of these recent developments, we applaud the foresight of the trial judge in having all evidence presented for the jury's consideration. By so doing he effected judicial economy, an elusive but always desirable goal.

MEDICAL PAYMENTS

The two State Farm insurance policies provide for medical payments in the amount of $5,000 and $2,000 respectively. The plaintiff contends he is entitled to recover these amounts from State Farm as well as the extent of the uninsured motorist insurance in view of the $500,000 verdict and prior settlement totaling only $177,802.91.

In Bunch v. Frezier, 239 So.2d 680 (La.App. 1st Cir.1970) the court held no deduction for medical payments can be made from the sum paid under the uninsured motorist clause where the general award left to be paid by uninsured coverage exceeded its extent of $5,000 and the medical payments exceeded their limit of $500. Further, in Taylor v. State Farm Mutual Automobile Ins. Co., 237 So.2d 690, 693 (La.App. 4th Cir.1970), the court states,

"... in a case such as Mr. Taylor's where the award for general damages exceeds the policy limits on Uninsured Motorist Coverage, the insurance company must pay its insured the full limits of the policy, in this case $5,000 regardless of what it has paid him under the Medical Payments Coverage."

Accord, White v. Patterson, 409 So.2d 290 (La.App. 1st Cir.1981), writ denied, 412 So.2d 1110 (La.1982), where the First Circuit chose to follow the rule in Taylor. Therefore, because the amount to be paid exceeds the uninsured motorist coverage by $122,197.09 ($500,000 verdict minus $177,802.91 settlement minus $200,000 uninsured motorist coverage) and the medical expenses far exceed $7,000, State Farm is liable to provide medical payments to the extent of the $7,000. ³

QUANTUM

State Farm contends the jury erred by awarding the sum of $500,000 in total damages. The focus of our inquiry into this specification must be directed at whether or not the trier of fact clearly abused its "much discretion" in the award of damages. Reck v. Stevens, 373 So.2d 498 (La.1979). Absent an initial determination of such an abuse a reviewing court shall not disturb the trier's award. Wilson v. Magee, 367 So.2d 314 (La.1979). Although we consider the award of $500,000 to be somewhat generous, we do not find it to be so excessive, where evidence of brain damage has been elicited at trial, as to justify the substitution of our judgment for that of the jury in this instance. Cf. Copeland v. La. Dept. of Transp. & Develop., 428 So.2d 1251 (La.App. 3d Cir.1983), writ denied, 435 So.2d 448 (La.1983). Therefore, no reduction will be ordered.

The jury in this instance may reasonably have believed the plaintiff suffered a modicum of brain damage as a result of the car accident which caused a basalar skull fracture. On referral, a neuropsychological examination was administered by Dr. Carey Rostow. Dr. Rostow's credentials are impressive. The Halstead-Reitan Neuropsychological Test Battery was administered to demonstrate organic brain damage at the microscopic level. A brain impairment index of .43 on a scale of 0 to 1.0 was found. This indicates a level of mild to moderate brain damage. Damage was found primarily in the right temporal lobe with additional damage found in the frontal and parietal lobes. These findings are consistent with the mechanics of the accident. Dr. Rostow testified simulation of the cluster of symptoms necessary to indicate organicity (brain damage) in a particular lobe of the brain would require immense sophistication.

According to Dr. Rostow, organic brain damage of the kind found in plaintiff would result in impairment to the emotions, hearing and auditory processing, motor coordination, short-term memory and produce difficulties in interpersonal relationships, hostility, aggression and paranoia. Significant decreases in the employment possibilities and social relationships available to this young man are the forseeable result of this brain damage.

Further, the plaintiff is suffering from a condition termed "tinnitus." Tinnitus is an internal noise caused by damage to the temporal lobe or temporal bone. It is a consequence of the basalar skull fracture which plaintiff sustained. The symptoms of tinnitus are equivalent to a...