Levet v. Calais & Sons, Inc.
| Decision Date | 18 September 1987 |
| Docket Number | No. 86-CA-724,86-CA-724 |
| Citation | 514 So.2d 153 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | Kenneth LEVET and Carol Ann Levet Lassere v. CALAIS & SONS, INC. and Acceptance Insurance Company. |
J.J. McKernan, McKernan & Taylor, Baton Rouge, for plaintiffs/appellees.
Dermot S. McGlinchey, Frederick R. Campbell, Lisa J. Miley, McGlinchey, Stafford, Mintz, Cellini & Lang, New Orleans, for defendants/appellants.
Thomas J. Grace, Beverly M. Klundt, Courtenay, Forstall, Grace & Hebert, New Orleans, for defendant/appellant, Calais & Sons, Inc.
Before KLIEBERT, BOWES, GAUDIN, WICKER and GOTHARD, JJ.
Defendants, Calais & Sons, Inc. (Calais) and its insurer, Acceptance Insurance Company (Acceptance) brought this suspensive appeal from a judgment rendered on a jury verdict. The judgment awarded to Kenneth Levet and Carol Ann Levet Lassere, plaintiffs, each $450,000 1 in general compensatory damages and $100,000 in exemplary damages for the wrongful death of their parents, Mr. and Mrs. Carroll Levet, together with reimbursement of $9,187.66 in funeral expenses. Defendants-appellants contend the general damage award is excessive and the exemplary damage award is improper. Additionally, Acceptance, over Calais' objections made in a brief filed in this court, urges an amendment to the judgment to restrict its liability to the policy limits of $500,000 per occurrence. For the reasons which follow we revise the judgment to correct mathematical errors, to reduce the compensatory damage awards, and to limit Acceptance's liability to its policy provisions and, as revised, affirm the judgment.
This wrongful death action arises out of an automobile accident which occurred in Vacherie, Louisiana on June 27, 1985, when a vehicle driven southbound on La. Highway 3127 by Darryl Richoux, an employee of Calais, proceeded into the wrong lane of traffic, through a stop sign and flashing red warning light at the intersection of La. Highway 20, a favored street, and struck a westbound vehicle broadside occupied by Mr. and Mrs. Carroll Levet. Richoux and the Levets died instantly. Two passengers in the Richoux vehicle, Jimmy LaFont and Kelly St. Amant, employees of Calais, were injured. At trial, due to the defendants' failure to file an answer to plaintiffs' request for admissions of fact, the funeral expenses of Mr. and Mrs. Levet were fixed at $9,182.66 and the following facts were deemed admitted: 2 At the time of the accident, Richoux was acting within the course and scope of his employment and the vehicle he was operating was owned by Calais and covered under a policy of liability insurance issued by Acceptance. Further, Richoux had been instructed to use the vehicle to bring employees from the job location of that day to their homes and Calais had not employed independent drivers to perform this function even though Richoux had discussed with company supervisors the desirability of doing so because on a previous occasion he had almost fallen asleep while driving a vehicle after long hours of work.
Further, at the commencement of the trial the following stipulation was entered into:
"MR. McKERNAN: It's my understanding, Your Honor, that the Defendants have stipulated to liability in this case and fault, as the Defendant, Calais & Sons, Inc., and that the sole and approximate cause of the accident was caused through the negligence of Darryl Richeux and also as to Calais & Sons, Inc.
Is that your understanding of the stipulation, Mr. Rossi?
MR. GROSSEL-ROSSI: Your Honor, we talked about it--
MR. McKERNAN: We talked about it last night.
That's the stipulation, admitting liability as to Calais & Sons, and also that the approximate cause of the accident was the negligence of the driver.
MR. McKERNAN: --because--yes, I'll stipulate to that, yes.
MR. GROSSEL-ROSSI: I didn't want to--
Let's show he stipulates to that fact.
MR. McKERNAN: And we also--it was part of the Admissions, also; it's stipulated that the policy was in full force and effect at the time of the accident; is that correct?
That's also stipulated to?
MR. GROSSEL-ROSSI: Yes."
The plaintiffs' suit sought a recovery of $9,182.66 for funeral expenses, $300,000 for each plaintiff in general damages for the loss of love and affection, paternal compansionship, grief, mental anguish and suffering for each parent, and $1,000,000 in exemplary damages under the provisions of La.C.C. art. 2315.4. In light of the stipulations as to liability and causation, and the amount of funeral expenses, the only issues submitted to the jury were the amount of compensatory damages, and the sufficiency of evidence for an award of exemplary damages, plus the amount of same. The jury returned a verdict on the interrogatories set up by the court and accepted by the litigants' counsel as follows:
"I. In terms of dollars, how much in total damages did the plaintiffs sustain as a result of this accident? You may or may not find that the plaintiffs suffered damages in one or more of the following categories, but each blank must be filled in, either with a dollar amount, or with a '0' if you find no damage for a particular category.
KENNETH LEVET for the death of his father, Carroll Levet:
(a) Loss of love and affection Past and
future $75,000.00
(b) Loss of parental companionship, Past
and future $75,000.00
(c) Grief, mental anguish and suffering $75,000.00
(d) Funeral expenses $ 9,185.66
CAROLE ANN LEVET LASSERE for the death of her father, Carroll Joseph Levet:
(a) Loss of love and affection Past and
future $75,000.00
(b) Loss of parental companionship, Past
and future $75,000.00
(c) Grief, mental anguish and suffering $75,000.00
(d) Funeral expenses $ ----
KENNETH LEVET for the death of his mother, Pearl Levet:
(a) Loss of love and affection Past and
future $75,000.00
(b) Loss of parental companionship Past
and future $75,000.00
(c) Grief, mental anguish and suffering $75,000.00
(d) Funeral expenses $ ----
CAROLE ANN LEVET LASSERE for the death of her mother, Pearl Levet:
(a) Loss of love and affection, Past and
future $75,000.00
(b) Loss of parental companionship Past
and future $75,000.00
(c) Grief, mental anguish and suffering $75,000.00
(d) Funeral expenses $ ----
II. Was Darryl A. Richoux, at the time of the accident operating the defendant, Calais and Son's, Inc. vehicle while under the influence of alcohol?
/ YES NO
III. Was Darryl A. Richoux's intoxication a legal cause of plaintiffs' damages?
/ YES NO
IV. What are the amounts of exemplary damages to be awarded?
(a) Kenneth Levet $100,000.00
(b) Carole Ann Levet Lassere $100,000.00"
On appeal the defendants contend the compensatory damage award was clearly excessive and influenced by improper instructions and interrogatories submitted to the jury. The jury instruction to which defendants object was as follows:
"In estimating the damages of Kenneth Levet and Carol Ann Levet Lassere, you may take into consideration the following elements; Number One, loss of love and affection, past and future; [Number Two], loss of parental companionship, past and future; Number Three, funeral and burial expenses; Number Four, grief, mental anguish and suffering; Number Five, exemplary damages."
Since the jury interrogatories listed each of the above enumerated elements of damages, and the jury awarded each plaintiff $75,000 each of elements one, two, and four for a total of $225,000 for each parent, defendants argue that the "fragmentation" of the award for a single damage, i.e., loss of society, into three separate categories resulted in triple recovery.
We first note that defendants failed to object to the jury instructions despite being asked if there were any objections thereto, and the record does not reflect any objections to the form of the interrogatories. La.C.C.P. art. 1793 provides, inter alia, that a party may not assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires and states the grounds of his objection. In Lilly v. Conoco, Inc., 463 So.2d 28 (La.App. 5th Cir.1985) writ denied 464 So.2d 1382, this court refused to consider alleged errors concerning assertedly incorrect and confusing charges where the defendant failed to object at trial, noting that to do otherwise would contravene the law and jurisprudence of this state and allow a party "two bites at the apple." The requirement that an objection be lodged before the jury retires has been extended to interrogatories, and the failure to do so constitutes a waiver of objections provided the parties were given an opportunity to object. See St. Pierre v. General Am. Transp. Corp., 360 So.2d 595 (La.App. 4th Cir.1978) writ denied 362 So.2d 1386.
Moreover, plaintiffs were entitled to be compensated for the mental pain, suffering and distress, and loss of love, affection and...
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