McGee v. A C and S, Inc.

• Citation: 933 So.2d 770
• Decision Date: 10 July 2006
• Docket Number: No. 2005-CC-1036.,2005-CC-1036.
• Parties: Betty McGEE, et al. v. A C AND S, INC., et al.
• Court: Supreme Court of Louisiana

933 So.2d 770

Betty McGEE, et al. v. A C AND S, INC., et al.

No. 2005-CC-1036.

Supreme Court of Louisiana.

July 10, 2006.

COPYRIGHT MATERIAL OMITTED

Roussel & Roussel, Gerolyn P. Roussel, Perry J. Roussel, Jr., Angelique R. Duhon, LaPlace, for Applicant.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, William L. Schuette, Jr., Leon Gary, Jr., James C. Percy, Michael W. Crosby, New Orleans, Olivia L. Smith, Denver, CO.; Bernard, Cassisa, Elliott & Davis, Stephen N. Elliott, Ann M. Sico, Metairie; Simon, Peragine, Smith & Redfearn, Susan B. Kohn, Douglas R. Kinler, New Orleans; Montgomery, Barnett, Brown, Read, Hammond & Mintz, Lawrence G. Pugh, III, New Orleans; Lynn Luker & Associates, Lynn M. Luker, New Orleans, Francine M. Giugno, for Respondent.

Joy Goldberg Braun, New Orleans, for Amicus Curiae, Product Liability Advisory Council, Inc. (PLAC).

Phil S. Goldberg, Mark A. Behrens, Washington, D.C., Kaye N. Courington, New Orleans, and Victor E. Schwartz, for Amici Curiae, Coalition for Litigation Justice, Inc., Chamber of Commerce of the United States, American Chemistry Council, American Insurance Association, and Property Casualty Insurers Association of America.

Patricia Cowen Penton, Richard Marshall Perles, Gary Allen Lee and Anita Ann Cates, New Orleans, for Amicus Curiae, Pete Territo.

David Mark Bienvenu, Jr., Baton Rouge, and William Shelby McKenzie, for Amici Curiae, National Association of Manufacturers, Louisiana Chemical Association, National Petrochemical & Refiners Association, Louisiana Independent Oil & Gas Association, Alabama Great Southern Railroad Company, Caterpillar, Inc., Conoco Phillips, Dow Chemical Company, Farmers Insurance Exchange, Georgia Pacific Corporation and Union Carbide Corporation.

Maureen Noonan Harbourt and Gary A. Bezet, Baton Rouge, for Amici Curiae, Louisiana Chemical Association, Exxon Mobil Corporation and Shell Oil Company.

Jason Taylor Little, Christopher T. Grace, III, Edwin A. Ellinghausen, III, Brian Carl Bossier, and Tara Nunez Smith, Mandeville, for Amicus Curiae Northrop Grumman Ship Systems Inc.

Joseph Henry Hart, IV, New Orleans, Ryan C. Wallis, and Lawrence Emerson Abbott, New Orleans, for Amicus Curiae, E.I. DuPont De Nemours & Co.

R. Dean Church, Jr., New Orleans, for Amicus Curiae, O-I f/k/a Owens Illinois, Inc.

James L. Ellis, Baton Rouge, for Ascension Chamber of Commerce, Bqaton Rouge Area Chamber, et al., and Ascension Economic Development Corporation.

Walter R. House, Jr., for Louisiana Department of Economic Development.

KIMBALL, Justice.

The issue presented in this case is whether loss of enjoyment of life is recoverable as a separate element of general damages that may be included as a separate item on a jury verdict form. For the reasons that follow, we hold that loss of enjoyment of life is recoverable as a separate element of general damages that may be included as a separate item on a jury verdict form and find that the court of appeal erred in holding that a separate award for loss of enjoyment of life is erroneous as a matter of law. Therefore, we reverse the court of appeal's ruling granting the motion in limine and reinstate the district court's ruling denying the motion in limine.

FACTS AND PROCEDURAL HISTORY

Plaintiffs, the widow and children of James Edward McGee, filed the instant wrongful death and survival actions against many defendants, including James Edward McGee's former employers and manufacturers of asbestos-containing products used during his employment (collectively "defendants"), seeking to recover damages for injuries sustained as a result of James Edward McGee's exposure to asbestos, from which he died on January 28, 2000.

In their petition, plaintiffs sought damages for, among other things, James Edward McGee's loss of enjoyment of life. Thereafter, defendants filed a motion in limine seeking to preclude plaintiffs from asserting a claim for loss of enjoyment of life. At the hearing on the motion, counsel for plaintiffs stated that plaintiffs were entitled to put on evidence and to have the jury give them an award for loss of enjoyment of life. Defense counsel stated that loss of enjoyment of life was a part of the general damage award and was not its own separate category of damages, but counsel for plaintiffs rebutted that loss of enjoyment of life was a separate item of damages. The district court remarked that it had allowed a separate category for loss of enjoyment of life in previous cases and denied defendants' motion in limine.

Defendants applied for supervisory writs, which the Fourth Circuit Court of Appeal granted. In reviewing the district court's ruling, the court of appeal stated that a separate award for loss of enjoyment of life was erroneous as a matter of law and stated that expert testimony concerning loss of enjoyment of life was inadmissible, citing its decision in Mistich v. Volkswagen of Germany, Inc., 94-0226, p. 5 (La App. 4 Cir. 6/25/97), 698 So.2d 47, 51. Accordingly, the court of appeal reversed the district court and granted defendants' motion in limine to prohibit plaintiffs from asserting a claim for loss of enjoyment of life. From that decision, plaintiffs applied for supervisory writs to this court, stating that the court of appeal erred in reversing the district court and holding that a separate award for loss of enjoyment of life is erroneous as a matter of law. We granted plaintiffs' writ application to determine whether loss of enjoyment of life is recoverable as a separate element of general damages that may be reflected as a line item on a jury verdict form.

DISCUSSION

Loss of enjoyment of life, sometimes known as hedonic damages, refers to the detrimental alterations of a person's life or lifestyle or a person's inability to participate in the activities or pleasures of life that were formerly enjoyed. See Day v. Ouachita Parish Sch. Bd., 35,831, p. 8 (La.App. 2 Cir. 8/8/02), 823 So.2d 1039, 1044.

In Louisiana, delictual actions are governed by La. C.C. art. 2315, which states that "[e]very act of man that causes damage to another obliges him by whose fault it happened to repair it." Thus, under La. C.C. art. 2315, a tortfeasor must compensate a tort victim for all of the damages occasioned by his act. The term "damages" refers to "pecuniary compensation, recompense, or satisfaction for an injury sustained." Fogle v. Feazel, 201 La. 899, 909, 10 So.2d 695, 698 (1942). In the delictual context, La. C.C. art. 2315 authorizes compensatory damages. Compensatory damages encompass those damages "designed to place the plaintiff in the position in which he would have been if the tort had not been committed." Frank L. Maraist & Thomas C. Galligan, Jr., LOUISIANA TORT LAW § 7-1 (Michie 1996) (footnotes omitted).

Compensatory damages are further divided into the broad categories of special damages and general damages. Special damages are those which have a "ready market value," such that the amount of the damages theoretically may be determined with relative certainty, including medical expenses and lost wages, while general damages are inherently speculative and cannot be calculated with mathematical certainty. Id. § 7-2 (footnotes omitted).

This court has previously defined general damages as "those which may not be fixed with any degree of pecuniary exactitude but which, instead, involve mental or physical pain or suffering, inconvenience, the loss of gratification of intellectual or physical enjoyment, or other losses of life or life-style which cannot really be measured definitively in terms of money." Duncan v. Kansas City S. R.R., 00-0066, p. 13 (La.10/30/00), 773 So.2d 670, 682; Boswell v. Roy O. Martin Lumber Co., Inc., 363 So.2d 506, 507 (La.1978); Anderson v. Welding Testing Lab., Inc., 304 So.2d 351, 352 (La.1974).

Loss of enjoyment of life falls within the definition of general damages because it involves the quality of a person's life, which is inherently speculative and cannot be measured definitively in terms of money. "The loss of gratification of intellectual or physical enjoyment" included in the definition of general damages directly results from a person's "inability to participate in the activities or pleasures of life that a person formerly enjoyed" as set forth in the definition of loss of enjoyment of life. Similarly, "the loss of life or life-style" included in the definition of general damages is substantially similar to the "detrimental alteration of a person's life or lifestyle" as included in the definition of loss of enjoyment of life. Thus, loss of enjoyment of life is clearly encompassed within "the loss of gratification of intellectual or physical enjoyment, or other losses of life or life-style" component of this court's existing definition of general damages.

La. C.C. art. 2315 authorizes a tort victim to be compensated for the damage sustained as a result of the delict, including those for loss of enjoyment of life, if proven. Moreover, this court has clearly defined general damages to include loss of enjoyment of life. Consequently, loss of enjoyment of life is a compensable component of general damages under both La. C.C. art. 2315 and this court's existing definition of general damages. Therefore, the only remaining issue is whether loss of enjoyment of life may be separated from other elements of general damages, such as mental and physical pain and suffering, and whether that separation may be reflected by having a line for loss of enjoyment of life on a jury verdict form. See Joseph v. Broussard Rice Mill, Inc., 00-0628, p. 1 (La.10/30/00), 772 So.2d 94, 106-107 (Victory, J., assigning additional reasons) (stating "this Court has never squarely addressed the issue of awarding hedonic damages for loss of enjoyment of life as a separate element of damages").

As established above, loss of enjoyment of life is a component of general damages and therefore loss of enjoyment of life is not separate and distinct...