Phillips v. Osmun

• Decision Date: 24 October 2007
• Docket Number: No. 07-50.,07-50.
• Citation: 967 So.2d 1209
• Parties: Kourtney PHILLIPS, et al. v. Cecilia OSMUN, et al.
• Court: Court of Appeal of Louisiana — District of US

967 So.2d 1209

Kourtney PHILLIPS, et al. v. Cecilia OSMUN, et al.

No. 07-50.

Court of Appeal of Louisiana, Third Circuit.

October 24, 2007.

Roy Seale Halcomb, Jr., Broussard, Bolton, Halcomb & Vizzier, Alexandria, LA, for Plaintiffs/Appellees, Kourtney Phillips and Edmond Bratton.

Keith M. Borne, Borne & Wilkes, L.L.P., Lafayette, LA, for Defendants/Appellants, Safeway Insurance Company of Louisiana and Cecilia Osmun.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, MICHAEL G. SULLIVAN, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.

THIBODEAUX, Chief Judge.

Defendants, Cecilia Osmun (Ms. Osmun), and her automobile liability insurer, Safeway Insurance Company of Louisiana (Safeway), appeal the trial court's judgment awarding general and special damages to plaintiffs, Kourtney Phillips (Ms. Phillips) and Edmond Bratton (Mr. Bratton) as a result of an automobile collision for which Ms. Osmun was found to be 100 percent at fault after a trial on the issues of liability and damages. Safeway also appeals the trial court's judgment awarding $5,000.00 in penalties against it in favor of Ms. Phillips because the court found that Safeway was arbitrary and capricious for not initiating loss adjustment on Ms. Phillips's medical expenses in a timely manner.

For the following reasons, we affirm the trial court's judgment awarding damages to both Mr. Bratton and Ms. Phillips. However, because the trial court abused its discretion in awarding $5,000.00 in penalties to Ms. Phillips against Safeway, the judgment awarding penalties to Ms. Phillips is reversed.

I. ISSUES

Ms. Osmun and Safeway raise three issues on appeal:

1. the trial court erred by awarding general damages to Ms. Phillips in the amount of $12,000.00 and $2,000.00 for future medical expenses;

2. the trial court erred by awarding $12,000.00 in general damages to Mr. Bratton; and,

3. the trial court erred by awarding Ms. Phillips $5,000.00 in penalties per La.R.S. 22:1220 from Safeway because it did not timely initiate loss adjustment of her medical expenses as required by La.R.S. 22:658(A)(3).

II. FACTS

A head-on collision occurred between the vehicle being driven by Mr. Bratton and the vehicle owned and driven by Ms. Osmun on March 27, 2004. Ms. Phillips was a passenger in Mr. Bratton's vehicle. As a result of that collision, both Ms. Phillips and Mr. Bratton sustained injuries.

Ms. Phillips was taken to a local emergency room and released. She then underwent treatment with a physician for two months, which included approximately two weeks of physical therapy. Her physician placed a note in her chart that she was experiencing no pain nor did she have any further symptoms of injury when he released her from treatment. While she had not sought any further medical care, she was complaining of continuing pain in her back at the time of trial.

Mr. Bratton's left hand hit the windshield of the car as a result of the impact with Ms. Osmun's vehicle. His hand was cut in a number of places. Pieces of glass from the windshield had to be removed from some of the wounds. Photos of his vehicle reveal blood on his air bag from his injured hand, and that the windshield was shattered from the impact of his hand.

Safeway was contacted by the plaintiffs approximately three to four days after the accident. Within forty-eight hours of receiving that notification, an adjuster for Safeway attempted to reach both plaintiffs by phone. Safeway then sent both Ms. Phillips and Mr. Bratton packets containing letters asking each of them to contact Safeway regarding the accident and their injuries. The packets also contained `bodily injury letters,' asking each plaintiff to forward all medical bills and records to Safeway when their treatment was completed so that settlement of their claim could begin. Those packets were sent on March 31, 2004.

Ms. Phillips and Mr. Bratton retained an attorney within one week of the collision. Their attorney contacted Safeway informing the company that all medical bills and claims would come from the attorney and that all correspondence about the claim should be received by the attorney. The claim for damage to Mr. Bratton's vehicle was settled without incident or complaint.

Medical bills were sent to Safeway by the plaintiffs' attorney on June 18, 2004, and received by Safeway on June 21, 2004. Safeway alleges that the medical bills did not come with an attendant settlement demand as Safeway requested of the plaintiffs' attorney. More medical bills were sent on three other occasions to Safeway. On October 12, 2004, a demand for settlement was sent to Safeway by the plaintiffs' attorney. While Safeway responded to this demand and attempted to conclude the loss adjustment on the medical bills and general damages claims at that time, the plaintiffs' attorney filed suit for damages and penalties.

The trial court found in favor of Ms. Phillips and Mr. Bratton. Ms. Phillips was awarded general damages in the amount of $12,000.00. She was also awarded special damages for past medical expenses in the amount of $2,657.32, future medical expenses in the amount of $2,000.00, and lost wages in the amount of $432.50. Mr. Bratton was awarded general damages in the amount of $12,000.00. The trial court also awarded $5,000.00 in penalties against Safeway in favor of Ms. Phillips for its failure to timely initiate loss adjustment of her claim for medical expenses, finding that this late payment was arbitrary and capricious pursuant to La.R.S. 22:1220.

III.

LAW AND DISCUSSION

Standard of Review

We note that neither Ms. Osmun nor Safeway raise the issue of liability on appeal. Therefore, the trial court's determination that Ms. Osmun was 100% at fault for the accident will not be discussed.

An award for general damages compensates an injury victim for the less specific injuries that accompany physical trauma. These injuries are not as easily confined to exact bills.

General damages are those which may not be fixed with pecuniary exactitude; instead, they "involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or life-style which cannot be definitely measured in monetary terms." Keeth v. Dept. of Pub. Safety & Transp., 618 So.2d 1154, 1160 (La.App. 2 Cir.1993).

Duncan v. Kansas City S. Ry. Co., 00-66, p. 13 (La.10/30/00), 773 So.2d 670, 682, writ dismissed, 532 U.S. 992, 121 S.Ct. 1651, 149 L.Ed.2d 508 (2001).

An appellate court can only change an award of general damages if it finds that the trial court abused the great discretion vested in it to determine such damage awards. Id.

Importantly, on review, an appellate court should rarely disturb an award of general damages because "the discretion vested in the trier of fact is `great,' and even vast." Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). It is only when the trier of fact has abused its much discretion that the appellate court may disturb the award, but then only to the extent of lowering it to the highest point or raising it to the lowest point which was reasonably within the discretion of the trier of fact. Id. However, this principle of appellate review applies only when a litigant "questions the adequacy of a monetary award in a case which is otherwise uncomplicated by factual errors relating to the cause or duration of the plaintiff's disability." Mart v. Hill, 505 So.2d 1120, 1128 (La. 1987).

Basco v. Liberty Mut. Ins. Co., 05-143, p. 9 (La.App. 3 Cir. 8/17/05), 909 So.2d 660, 666.

Therefore, we will review the record in its entirety to determine if the trial court abused its vast discretion, and not to determine what this court would award if reviewing the case de novo. "`[T]he role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact.' Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70, 74 (quoting Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994))." Mouhot v. Twelfth St. Baptist Church, 06-1283, p. 4 (La.App. 3 Cir. 2/7/07), 949 So.2d 668, 671.

Did the Trial Court Abuse its Vast Discretion by Awarding Ms. Phillips $12,000.00 in General Damages and $2,000.00 For Future Medical Expenses?

General Damage Award

Testimony and evidence in the record establish that Ms. Phillips was a relatively healthy young woman with no reported injuries, aches or pains before the accident with Ms. Osmun. After the accident there is both subjective and objective evidence in the record showing that she sustained injuries to her knees, neck and back. The injury to her back required ongoing medical treatment that included physical therapy for at least two months.

Her physician, Dr. Robert K. Rush, testified that he diagnosed Ms. Phillips with lumbar strain, post-traumatic headaches, trauma to her knees, and muscle spasms in her lower back. He stated that muscle spasms are indicative of soft tissue muscle and ligament injury which usually means that there has been tearing of those tissues with subsequent inflammation.

Dr. Rush felt that Ms. Phillips's complaints regarding pain during prolonged sitting, standing or repetitive bending were consistent with a diagnosis of lumbar strain. He also testified that the injury and resulting pain were more likely than not a result of the car accident. Dr. Rush described Ms. Phillips as a sincere young lady. He had no reason to believe that her complaints were either embellished or misleading.

Because there is ample evidence in the record which supports the trial court's award of $12,000.00 in general damages to Ms. Phillips, we affirm the judgment of the trial court.

Future Medical Expenses

Future medical expenses are a component of...