McLin v. Mary Mcnabb, Auto. Club Inter-Insurance Exch., & Am. First Ins. Co.

• Decision Date: 22 December 2016
• Docket Number: NUMBER 2016 CA 0449
• Parties: JASON McLIN v. MARY McNABB, AUTOMOBILE CLUB INTER-INSURANCE EXCHANGE, AND AMERICA FIRST INSURANCE COMPANY
• Court: Court of Appeal of Louisiana — District of US

JASON McLIN v. MARY McNABB, AUTOMOBILE CLUB INTER-INSURANCE EXCHANGE,AND AMERICA FIRST INSURANCE COMPANY

NUMBER 2016 CA 0449

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

December 22, 2016

NOT DESIGNATED FOR PUBLICATION

Appealed from the 21^st Judicial District Court In and for the Parish of Livingston, Louisiana

Trial Court Number 144,465

Honorable M. Douglas Hughes, Judge

Mark D. Plaisance

Thibodaux, Louisiana

Attorney for Appellant

Plaintiff - Jason McLin

John W. Norwood, III

Metairie, Louisiana

Attorney for Appellee

Defendant - American First Insurance

Company

BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.

WELCH, J.

The appellant/plaintiff, Jason McLin, appeals a judgment of the trial court rendered in conformity with the jury's verdict awarding past medical expenses, but no future medical expenses or general damages.For the reasons set forth below, we reverse in part, render in part, and remand the matter for further proceedings.

FACTS & PROCEDURAL HISTORY

On March 22, 2013, the plaintiff, Mr. McLin, was at the drive-through window at Fernando's Restaurant in Walker, Louisiana, when Mary McNabb backed her vehicle into the passenger side of the plaintiff's vehicle.At the time of the accident, the plaintiff was operating a 2003 Chevrolet 1500 that was owned by Bruce McLin, and was covered by an uninsured/underinsured automotive policy issued by America First Insurance Company.

In May of 2014, the plaintiff filed suit against Ms. McNabb, her insurer, and American First Insurance Company seeking recovery for damages he incurred as a result of the accident.Ms. McNabb and her insurer, Automobile Club Inter-Insurance Exchange, were voluntarily dismissed with prejudice from the suit in November of 2014.A one-day jury trial on the issue of damages and recovery under the uninsured/underinsured policy was conducted on September 15, 2015.

The parties stipulated that the plaintiff had incurred $18,087.00 in medical bills in the wake of the March 2013 accident.Evidence presented to the jury included the plaintiff's medical records for treatment following the March 2013 accident, medical bills, plaintiff's responses to interrogatories, as well as testimony from the plaintiff and two of his medical care providers.The jury verdict form contained individual blanks for the following categories of damages: past medical expenses, future medical expenses, past physical pain and suffering, future physical pain and suffering, past mental pain and suffering, future mental pain and suffering, and loss of enjoyment of life.The jury awarded the plaintiff the entire$18,078.00 in past medical expenses, but declined to award any damages for past or future physical pain and suffering, past or future mental suffering, loss of enjoyment of life, or future medical expenses.On October 19, 2015, the trial court rendered a judgment conforming to the jury verdict, and ordered each party to bear its own costs.The plaintiff filed a motion for judgment notwithstanding the verdict, or alternatively new trial or addittur, which was denied by the trial court on January 13, 2016.

On appeal, the plaintiff assigns five assignments of error.First, the plaintiff contends that the jury abused its discretion in not awarding him general damages in light of its finding that he incurred injuries in the accident as evidenced by its award of past medical expenses.Second, the plaintiff contends based on the special damages award he is entitled to be awarded the lowest reasonable general damage award.Third, the plaintiff maintains that the jury erred in failing to award him future medical expenses.Fourth, the plaintiff asserts that the trial court erred in not granting his judgment notwithstanding the verdict or a new trial.Finally, the plaintiff challenges the trial court's order that each party bear its own costs and seeks a remand of the matter to the trial court for hearing on the issue of costs, including expert fees.

LAW AND DISCUSSION

I.Jury's Failure to Award General Damages

General damages involve mental or physical pain or suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle that cannot be measured definitively in terms of money.Boudreaux v. Farmer, 604 So.2d 641, 654(La. App. 1^st Cir.), writs denied, 605 So.2d 1373, 1374(La.1992).The primary objective of general damages is to restore the party in as near a fashion as possible to the statehe was in at the time immediately preceding injury.Lohenis v. Rousse, 2014-1078(La. App. 1^st Cir.3/9/15), 166 So.3d 1020, 1024.Special damages are those which must be specially pled or have a ready market value, that is, the amount of the damages supposedly can be determined with relative certainty.Id.Medical and related expenses are classified as special damages.SeeId.

Under La.C.C. art. 2324.1, a jury has much discretion in the assessment of general damages.However, when a jury awards special damages but declines to award general damages, the reviewing court must determine whether the jury's finding is so inconsistent as to constitute an abuse of its much discretion.Green v. K-Mart Corporation, 2003-2495(La.5/25/04), 874 So.2d 838, 843-844.A trier of fact abuses its discretion in failing to award general damages where it finds that a plaintiff has suffered injuries causally related to the accident that required medical attention.Id., 874 So.2d at 844;SeeThibodeaux v. Donnell, 2015-0503(La. App. 1^st Cir.2/24/16), 189 So.3d 469, 475, writ granted, 2016-0570 (La.6/3/16), 192 So.3d 756;Harris v. Delta Development Partnership, 2007-2418(La. App. 1^st Cir.8/21/08), 994 So.2d 69, 83;Leighow v. Crump, 2006-0642(La. App. 1^st Cir.3/23/07), 960 So.2d 122, 129, writs denied, 2007-1195 (La. 9/21/07), 964 So.2d 337, and 2007-1218(La.9/21/07), 964 So.2d 341.

The jury's award of the total amount of the plaintiff's claimed past medical expenses evidences that it found that the plaintiff had suffered injuries causally related to the March 2013 accident; therefore, the jury's failure to award general damages constitutes an abuse of discretion, warranting our de novo review of the record and the rendering of an appropriate award by this court.SeeThibodeaux, 189 So.3d at 475-476;Harris, 994 So.2d at 83.In instances where the correction of the verdict is based on a finding of an abuse of discretion, such as in the instant matter, this court's award must necessarily be limited to raising the inadequate general damages award to the lowest amount reasonably within the jury'sdiscretion.SeeCoco v. Winston Industries, Inc., 341 So.2d 332, 335(La.1977);Thibodeaux, 189 So.3d at 476;Harris, 994 So. 2d at 83.

Pain and suffering, both physical and mental, refers to the pain, discomfort, inconvenience, anguish, and emotional trauma that accompanies an injury.McGee v. A C and S, Inc., 2005-1036(La.7/10/06), 933 So.2d 770, 775.The elements of physical pain and suffering and associated mental anguish are conceptually related and to a large extent overlapping, and therefore difficult to precisely distinguish.Harris, 994 So.2d at 84.Accordingly, in correcting the jury's abuse of discretion, we choose to make one undifferentiated award to the plaintiff for past and future physical and mental suffering.Id.

The jury verdict form in the instant matter separately itemized the plaintiff's claim for loss of enjoyment of life.Loss of enjoyment of life is not a separate and distinct component from general damages.Nevertheless, the Louisiana Supreme Court has held that allowing a separate award for loss of enjoyment of life does not offend the existing concept of general damages and reflects the accepted method of listing elements of general damages separately.McGee, 933 So.2d at 774-775.Loss of enjoyment of life refers to detrimental alterations of the person's life or lifestyle or the person's inability to participate in the activities or pleasures of life that were formerly enjoyed prior to the injury.Whether a plaintiff experiences a detrimental lifestyle change depends on both the nature and severity of the injury and the lifestyle of the plaintiff prior to the injury.Id., 933 So.2d at 775.Only if detrimental changes in a victim's lifestyle (comparative to before the injuring event) would otherwise go uncompensated by other general damage awards is a separate award for loss of enjoyment of life warranted.Travis v. Spitale's Bar, Inc., 2012-1366(La. App. 1^st Cir.8/14/13), 122 So.3d 1118, 1132, writs denied, 2013-2409 (La. 1/10/14), 130 So.3d 327, and 2013-2447(La.1/10/14), 130 So.3d 329.

The evidence presented at trial herein established that the plaintiff was involved in four previous automobile accidents - three in 2002(January 2002, August 2002, and October 2002), and one in 2009.Additionally, the plaintiff was involved in a subsequent April 2014 automobile accident.The plaintiff testified that he suffered three herniated discs in the January 2002 accident.In discovery responses entered into evidence at trial, the plaintiff stated that he sustained injuries to his leg and lumbar region with an aggravation of his disc issues as a result of the August 2002 accident.The plaintiff's discovery responses further stated that he sustained injuries to his neck, both arms, shoulder, head, back, both legs and thighs following the October 2002 accident.Finally, the plaintiff's discovery responses provided that the plaintiff sustained injuries to his neck, back, shoulder and right arm in the 2009 accident.According to the plaintiff's discovery responses, all of his previous injuries fully resolved following treatment and all claims related to said injuries were settled out of court.

The medical evidence in this case establishes that following the March 2013 accident, the plaintiff underwent a total of eighteen months of medical treatment with three health care providers.Initially, the plaintiff sought chiropractic treatment from Dr. Ronald...