Montgomery v. Opelousas General Hosp., 87-492

• Decision Date: 28 June 1989
• Docket Number: No. 87-492,87-492
• Citation: 546 So.2d 621
• Parties: Jackie MONTGOMERY, et ux., Plaintiffs-Appellees, v. OPELOUSAS GENERAL HOSPITAL, et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 621

546 So.2d 621

Jackie MONTGOMERY, et ux., Plaintiffs-Appellees, v. OPELOUSAS GENERAL HOSPITAL, et al., Defendants-Appellants.

No. 87-492.

Court of Appeal of Louisiana Third Circuit.

June 28, 1989.

Kermit A. Doucet, Lafayette, for plaintiffs-appellees.

Watson, Blanche, Wilson & Posner, Katherine Gilmore, Ambrose Ramsey, S. Alfred Adams, Baton Rouge, for defendants-appellants.

Before GUIDRY, FORET and DOUCET, JJ.

GUIDRY, Judge.

This is a medical malpractice suit instituted by Jackie Montgomery and her husband, J.L. Montgomery, against Robert Sullivan, a medical technologist, Opelousas General Hospital, and the Louisiana Association of Hospitals Trust Fund (the Louisiana Patients' Compensation Fund). In our original opinion reported at 529 So.2d 52 (La.App. 3rd Cir.1988), we reversed the judgment of the trial court and ordered plaintiffs' suit dismissed with prejudice. The Supreme Court of Louisiana granted a writ of certiorari, 532 So.2d 164 (La.1988), and in an opinion dated March 13, 1989, 540 So.2d 312, reversed our judgment, reinstated the trial court's finding as to liability and remanded the matter to this court for consideration of appellants' argument that the trial court's damage award is excessive.

QUANTUM

The trial court awarded Jackie Montgomery $200,000.00 in damages and $5,000.00 in medical expenses. J.L. Montgomery was awarded $8,000.00 for loss of consortium. Appellants do not challenge the award for medical expenses but contend that the damage award to Jackie Montgomery and that to J.L. Montgomery are clearly excessive.

"Before an appellate court can disturb a quantum award, the record must clearly reveal that the trier of fact abused its discretion in making the award. An award made in the trial court may not be modified unless it is unsupported by the record. The appellate question is not whether a different award may have been more appropriate, but whether the trial court's award can be reasonably supported by the record. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Bitoun v. Landry, 302 So.2d 278 (La.1974); Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971); Black v. Ebasco Services, Inc., 411 So.2d 1159 (La.App. 1st Cir.1982); Greene v. Wright, 365 So.2d 551 (La.App. 1st Cir.1978). Moreover, the appellate function in reviewing quantum is limited to raising inadequate awards to the lowest amount the trial court could have reasonably awarded, and lowering excessive awards to the highest amount the trial court could have reasonably awarded. Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, supra; Alexander v. Leger, 423 So.2d 731 (La.App. 3d Cir.1982); Greene v. Wright, supra. In the final analysis, the damages due in a given case must reflect the facts and circumstances of that case. Alexander v. Leger, supra; Wilkinson v. Hartford Accident & Indemnity Co., 421 So.2d 440 (La.App. 3d Cir.1982); Profit v. Linn, 346 So.2d 253 (La.App. 1st Cir.1977).

General damages are those which may not be fixed with pecuniary exactitude; they instead involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or lifestyle which cannot be definitively measured in monetary terms. Boswell v. Martin Lumber Co., Inc., 363 So.2d 506 (La.1978); Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974)."

Morgan v. Willis-Knighton Medical Center, 456 So.2d 650 (La.App. 2d Cir.1984).

DAMAGE AWARD TO JACKIE MONTGOMERY

Inasmuch as the jury did not specify how much of the damage award was for economic loss and how much was for general damages, we will attempt to make that distinction in order to aid in our evaluation of her damage award.

At the time plaintiff suffered the injury to the median nerve of her right arm (February 17, 1984), she was employed as a school bus driver by Washington Bus, Incorporated (WBI). Mrs. Montgomery began her employment with WBI in September of 1981 and was paid at the rate of $150.00 per month. In October of 1982, her salary was raised to $200.00 per month (for nine months out of the year) and it remained at that level until she resigned. While the record is silent as to the date of her resignation, a letter from Marvin Anderson, secretary/treasurer of WBI, established that plaintiff was still employed by WBI on April 18, 1986.

At trial, Mrs. Montgomery testified that she can no longer drive a school bus. She stated that she can no longer lift heavy objects or engage in hard work as such activities cause pain in her lower right arm. Mrs. Montgomery stated that besides driving a school bus, her past work experience included working in grocery stores and similar establishments plus several years of clerical experience at Opelousas General Hospital.

Plaintiff presented two witnesses who testified that they offered Mrs. Montgomery work in grocery store type settings after her accident. Appellee claims that she turned down one of the jobs because she knew she couldn't do it and that she tried the other job for two days, but had to quit because she was physically unable to meet the demands of the position. Allegedly, either position would have paid her $4.50 to $5.00 per hour. The only evidence plaintiff presented relating to past grocery store work was a 1981 W-2 form from St. Amand's Grocery showing total wages for the year of $2,950.51.

When questioned concerning her ability to perform clerical work, Mrs. Montgomery replied that she had not applied for a clerical position, even though she was qualified and physically able to handle a clerical job. She stated that she was just not interested in a clerical position such as she previously held at Opelousas General Hospital.

"Awards for loss of future income are inherently speculative, and are intrinsically insusceptible of being calculated with mathematical certainty. Thus, the courts must exercise sound judicial discretion in determining these awards, and render awards which are consistent with the record and which work an injustice on neither party. Robinson v. Graves, 343 So.2d 147 (La.1977); Edwards v. Sims, 294 So.2d 611 (La.App.1974); Viator v. Gilbert, 253 La. 81, 216 So.2d 821 (1968); Holmes v. Texaco, Inc., 422 So.2d 1302 (La.App. 5th Cir.1982); Black v. Ebasco Services, Inc., 411 So.2d 1159 (La.App. 1st Cir.1982); Payton v. Travelers Ins. Co., 373 So.2d 1324 (La.App. 4th Cir.1979).

A number of factors must be analyzed in determining loss of future income, including the plaintiff's physical condition before and after his injury; his past work record and the consistency thereof; the amount plaintiff probably would have earned absent the injury complained of; and the probability he would have continued to earn wages over the balance of his working life. Viator v. Gilbert, supra; Payton v. Travelers Ins. Co., supra. It is well established that a loss of future income award is not merely predicated upon the difference between a plaintiff's earnings before and after a disability injury. Such an award is predicated, more strictly considered, upon the difference between a plaintiff's earning capacity before and after a disabling injury. Folse v. Fakouri, 371 So.2d 1120 (La.1979); Ward v. Louisiana & Arkansas Railway Co., 451 So.2d 597 (La.App. 2d Cir.1984); Green v. Farmers Ins. Co., 412 So.2d 1136 (La.App. 2d Cir.1982); Hill v. Sills, 404 So.2d 1323 (La.App. 2d Cir.1981). Loss of future income awards thus encompass the loss of a plaintiff's earning potential--the loss or reduction of a persons' capability to do that for which he is equipped by nature, training, and experience, and for which he may receive recompense...."

Morgan v. Willis-Knighton Medical Center, supra.

Plaintiff presented no economic experts in an attempt to quantify her alleged loss of income. Further, none of the doctors who treated Mrs. Montgomery assigned any percentage of disability either to her right arm or to her body as a whole. At the time of trial plaintiff was 45 years old. If she had continued to work as a school bus driver for the next 15 years at the same rate of pay she was earning at the time of her resignation, she would have grossed $27,000.00. Considering the lack of any expert economic testimony, the lack of any assignment of disability rating percentage by her doctors and the fact that plaintiff admittedly had not sought any employment for which she is suited by reason of her training, age, experience and physical condition (clerical work), we find that the highest possible award the trier of fact could have made for economic loss (both past and future) is the sum of $30,000.00.

"Before a trial court's award in general damages may be viewed as excessive or inadequate, this Court must look first, not to prior awards, but to the individual circumstances peculiar to the case. Only after an analysis of the facts of a particular case and an analysis of the particular injuries to the party may this Court determine the excessiveness or inadequacy of the award. Reck v. Stevens, 373 So.2d 498 (La.1979); Darbonne v. Safeco Ins. Co. of America, 452 So.2d 801 (La.App. 3 Cir.1984). After an examination of the particular facts of a case, an appellate court must then determine whether the trier of fact clearly abused his much discretion in awarding damages. Former La.C.C. Art. 1934(3); Reck, supra; Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Darbonne, supra.

An examination of prior awards, in the initial determination of excessiveness or insufficiency, serves a limited function--to serve as an aid in determining whether the award complained of is greatly disproportionate to past awards for "truly similar" injuries. Reck, supra, at page 501, citing Coco, supra. The mass of awards for truly similar injuries may therefore be used as an aid in determining a disproportion in the award complained of when viewed in light of the facts of the case; however, an appellate court will only disturb...