Leblanc v. Acadian Ambulance Service, Inc., 99-271.

• Decision Date: 13 October 1999
• Docket Number: No. 99-271.,99-271.
• Citation: 746 So.2d 665
• Parties: Russell L. and Elizabeth B. LeBLANC, et al., Plaintiffs-Appellants, v. ACADIAN AMBULANCE SERVICE, INC., et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

746 So.2d 665

Russell L. and Elizabeth B. LeBLANC, et al., Plaintiffs-Appellants, v. ACADIAN AMBULANCE SERVICE, INC., et al., Defendants-Appellees.

No. 99-271.

Court of Appeal of Louisiana, Third Circuit.

October 13, 1999.

Rehearing Denied December 8, 1999.

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Paul H. Due; Kirk Andrew Guidry, Baton Rouge, for Russell L. and Elizabeth LeBlanc.

James E. Moore, Jr., Willam Carl Shockey, Baton Rouge, for Acadian Ambulance Service, Inc. et al.

Before DOUCET, C.J., AMY and SULLIVAN, Judges.

AMY, Judge.

The plaintiff alleges extensive injuries from an automobile accident in which his vehicle was struck by an ambulance owned by Acadian Ambulance. The trial court found in favor of the plaintiff, awarding both special and general damages. Both parties appeal. The plaintiff maintains that the jury erred in awarding inadequate damages, both general and special. The defendants have answered the appeal seeking reductions in the awards for loss of past wages and benefits, lost earning capacity, and medical expenses. We have amended the judgment in favor of the plaintiff in the areas of medical expenses, general damages, and loss of consortium. Further, we reverse the trial court's decision to assess a portion of the court costs to the plaintiff. In all other respects, we affirm the judgment entered by the trial court.

Factual and Procedural Background

On November 29, 1992, Russell LeBlanc was eastbound on Interstate 10 near Baton Rouge, Louisiana when he became involved in the three-vehicle accident now at issue. The accident occurred when an ambulance owned by Acadian Ambulance Service, Inc., and driven by one of its employees in the course and scope of his employment, hit a Jeep Cherokee on the roadway which, in turn, struck LeBlanc's vehicle from the rear. LeBlanc was taken to the hospital following the accident for treatment and was released later in the evening.

The record reflects that in the months and years following the accident, LeBlanc was treated extensively, including several surgeries, for both back and neck-related problems. He was also diagnosed with carpal tunnel syndrome in both arms which was treated with surgery. Although he returned to work as a systems analyst with DynMcDermott Petroleum Operations Company following the accident, LeBlanc's work schedule began to decrease and he was eventually terminated with the company due to time spent away from work for medical treatment, surgery, and LeBlanc's assertion that he could not work due to pain. Furthermore, LeBlanc, a major in the United States Army Reserve, alleges that he became unable to pass the required physical and, in 1995, was placed on nondeployable status and removed from active drilling status.

LeBlanc and his wife, Elizabeth LeBlanc, individually and on behalf of their three minor children, filed suit seeking recovery for injuries related to the accident. LeBlanc claimed entitlement to medical expenses, general damages, loss of earning capacity, lost past and future wages, and permanent disability. Mrs. LeBlanc and the children sought recovery for loss of consortium. Acadian Ambulance Service, Inc. (Acadian), Justin Cox, the driver of the ambulance, and Acadian's insurer, Insurance Company of North America (INA) were named as defendants.

The matter was heard by a jury in January 1998. The parties stipulated that the defendants were liable for the accident. At issue was the causation of the damages alleged by LeBlanc and the extent of any such damages. The jury awarded the following:

                Physical/mental pain and suffering:   $140,000.00
                Physical disability:                   $13,000.00
                Past medical expenses:                $100,000.00
                Future medical expenses:                    $0.00
                Loss of past wages:                   $144,000.00
                Loss of future earning capacity:       $51,000.00
                Loss of employment benefits:           $11,000.00
                Loss of military retirement:                $0.00
                

The jury denied any award for loss of consortium to LeBlanc's wife and three sons.

LeBlanc appeals and asserts that the trial court committed reversible error in denying his pre-trial motions in limine filed in an attempt to exclude reference to payment of expenses by a collateral source and questioning related to his income tax returns. He contends these errors require a de novo review by this court. Alternatively, the plaintiff argues that the jury erred in making insufficient awards for pain and suffering, physical disability, past medical expenses, loss of past wages, loss of future earning capacity, and loss of employment benefits. LeBlanc further contends the jury erred in failing to make any award for future medical expenses, loss of military retirement, and loss of consortium. Finally, LeBlanc asserts the trial court erred in assigning him twenty-five percent of court costs.

The defendants have answered the appeal and assert that the jury erred in awarding excessive damages for loss of past wages/benefits and in finding that any award was appropriate for lost earning capacity. The defendants also maintain that the award for medical expenses should be reduced.

Discussion

Collateral Source Rule

Before trial, the plaintiff filed a motion in limine in an attempt to prevent the defendant from presenting evidence regarding payments made for medical expenses by collateral sources, namely, the plaintiff's medical insurer, Aetna. LeBlanc contends that questioning along these lines was prejudicial and the erroneous ruling permitting this evidence is reversible error. He asks that this court conduct a de novo review of the record. The defendant contends that the ruling did not violate the collateral source rule, as the evidence was limited to that regarding LeBlanc's credibility. In particular, the defendant contends that questioning was permissible as it related to whether the plaintiff informed Aetna that there was potential third-party liability and whether he completed and forwarded a reimbursement agreement which would require him to use proceeds obtained from Acadian and INA to repay payments made by Aetna.

La.Code Evid. art. 402 provides that "[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of Louisiana, this Code of Evidence, or other legislation. Evidence which is not relevant is not admissible." Even if relevant, "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time." La.Code Evid. art. 403.

Given the type of evidence regarding health insurance offered by the defendant, and objected to by the plaintiff, the general rules of Article 402 and Article 403 must be viewed alongside La.Code Evid. art. 409 which provides as follows:

In a civil case, evidence of furnishing or offering or promising to pay expenses or losses occasioned by an injury to person or damage to property is not admissible to prove liability of the injury or damage nor is it admissible to mitigate, reduce, or avoid liability therefor. This Article does not require the exclusion of such evidence when it is offered solely for another purpose, such as to enforce a contract for payment.

In Francis v. Brown, 95-1241 (La.App. 3 Cir. 3/20/96); 671 So.2d 1041, a panel of this court found Article 409 to prohibit the introduction of the type of payments made by an independent source which are also excluded by the "collateral source rule." This rule provides "`that the tortfeasor may not benefit, and an injured plaintiffs tort recovery may not be diminished, because of benefits received by the plaintiff from sources independent of the tortfeasor's procuration or contribution.'" Id. at p. 7; 1046 quoting Kidder v. Boudreaux, 93-859 (La.App. 3 Cir. 5/19/94); 636 So.2d 282, 284, writ denied, 94-1150 (La.10/7/94); 644 So.2d 629, writ denied, 94-1640 (La.10/7/94); 644 So.2d 630.

In Francis, the plaintiff's motion in limine was granted prior to trial prohibiting reference to payment of medical expenses by her attorney. However, at trial, the defense was allowed to cross-examine the plaintiff and elicit testimony indicating that she did not have money to pay for an emergency room visit and that she arrived at another doctor's appointment with a check for five hundred dollars. The trial court found this type of questioning properly within the parameters of cross-examination. On appeal, this court found otherwise stating:

Clearly, this exchange violated the "collateral source" rule. A tortfeasor may not benefit because plaintiff benefitted from an independent source. La. Code Evid. art. 409 prevents introduction of such evidence. To allow a jury to consider such evidence can only lead to unjust results. If a jury could consider the occasion where a defendant makes certain payments to a plaintiff, it could be misconstrued that the defendant made an admission of liability. To allow a jury to hear evidence that plaintiffs attorney provided the funds for her medical expenses only fanned the flames of the prejudice that now exists against civil litigants and their attorneys. A jury should not be guided by bias, prejudice, passion, or sympathy, but should coolly and dispassionately weigh the facts and the law to reach a just and proper verdict.

Francis, 95-1241, p. 9-10; 671 So.2d at 1047.

Our review indicates that the majority of evidence introduced here does not run afoul of the considerations of the collateral source rule discussed above. Rather, a portion of the evidence dealt with whether LeBlanc informed Aetna that there was potential third-party liability and whether he completed a reimbursement agreement form with the company. Although the plaintiff argues that a variety of evidence existed that such a form was completed, e.g., Aetna's payment of the medical expenses, and therefore, any probative value...