Simon v. Auto. Club Inter-Ins. Exch.

• Decision Date: 13 October 2021
• Docket Number: NO. 20-CA-156,20-CA-156
• Citation: 329 So.3d 1072
• Parties: Kim D. SIMON v. AUTOMOBILE CLUB INTER-INSURANCE EXCHANGE, State Farm Mutual Automobile Insurance Company, and Shannon D. Singleton
• Court: Court of Appeal of Louisiana — District of US

329 So.3d 1072

Kim D. SIMON
v.
AUTOMOBILE CLUB INTER-INSURANCE EXCHANGE, State Farm Mutual Automobile Insurance Company, and Shannon D. Singleton

NO. 20-CA-156

Court of Appeal of Louisiana, Fifth Circuit.

October 13, 2021

COUNSEL FOR PLAINTIFF/APPELLANT, KIM D. SIMON, George B. Recile, Metairie, Walter R. Woodruff, Jr., Mandeville

COUNSEL FOR DEFENDANT/APPELLEE, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Matthew A. Mang, New Orleans, Victoria H. Fabre

Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, Marc E. Johnson, Stephen J. Windhorst, and Hans J. Liljeberg

LILJEBERG, J.

This matter involves a lawsuit for injuries allegedly sustained by plaintiff, Kim D. Simon, during a motor vehicle accident that occurred on February 11, 2013 ("2013 accident"). At trial, Ms. Simon sought damages for alleged injuries to her back

329 So.3d 1075

and hip from her uninsured/underinsured insurer, defendant State Farm Mutual Automobile Insurance Company. The jury awarded Ms. Simon $313,928.00, which included $188,928.00 for past medical expenses, $90,000.00 for future medical expenses and $35,000.00 in general damages for past, present and future physical pain and suffering. The jury did not award any amounts to Ms. Simon for past and future lost wages or for loss of earning capacity.

Ms. Simon now appeals the jury's verdict, as well as the trial court's denial of her motion for judgment notwithstanding the verdict ("JNOV") and/or alternative motion for new trial and additur, on two grounds. First, she contends it was inconsistent and an abuse of discretion to award such a low amount for her past, present and future physical pain and suffering, when the jury awarded significant past and future medical expenses, including costs for two back surgeries and a third surgery on her hip. Second, Ms. Simon argues the jury and trial court abused their discretion by failing to award her past and future lost wages, as well as loss of earning capacity, because she was no longer able to work as an occupational therapist after the 2013 accident. State Farm conversely argues Ms. Simon cannot meet her heavy burden to upset the jury verdict because this matter involves a low impact accident and the evidence established Ms. Simon had preexisting conditions caused by a prior motor vehicle accident in 2011.

For the reasons that follow, we reverse the denial of the JNOV in part and amend the jury verdict to award $200,000.00 for Ms. Simon's past, present and future physical pain and suffering arising from the injuries to her back and hip. We find that the jury undoubtedly determined that the 2013 accident caused Ms. Simon to undergo three surgeries in light of its decision to award past medical expenses. The jury further determined that she will continue to require treatment for her back due to the 2013 accident based on its decision to award $90,000.00 in future medical expenses. This inconsistency constitutes an abuse of discretion that requires an increase in the general damages award.

However, we decline to reverse the denial of the JNOV with respect to lost wages and loss of earning capacity, and affirm the jury's verdict as to this issue. Conflicting evidence exists regarding the debilitating nature of Ms. Simon's injuries from the prior 2011 accident that could have lead reasonable and fair-minded jurors to reach different conclusions.

PROCEDURAL HISTORY AND FACTS

On February 11, 2013, a 2006 GMC Yukon operated by defendant, Shannon Singleton, rear-ended a 2006 Toyota Sequoia operated by Ms. Simon in Jefferson Parish. Ms. Simon's SUV had no visible damage from the accident. The front bumper of Ms. Singleton's SUV had slight damage caused by the trailer hitch on the back of Ms. Simon's SUV. Ms. Simon filed this lawsuit against Ms. Singleton and her insurer, Automobile Club Inter-Insurance Exchange ("ACIIE"), for injuries allegedly sustained during the accident.¹ Ms. Simon also named State Farm, in its capacity as Ms. Simon's uninsured/underinsured insurer, as a defendant.

At the time of the accident, Ms. Simon worked as an occupational therapist for Ochsner Home Health and was on her way to an appointment with a patient. Ms. Simon claimed that as a result of the accident, she sustained injuries to her neck,

329 So.3d 1076

lower back and hip.² Shortly after the accident, Ms. Simon experienced severe lower back pain and underwent an MRI, which revealed a disc herniation at the L3-L4 level. Ms. Simon was referred to a neurosurgeon, Dr. Lucien Miranne, who initially recommended epidural steroid injections. However, after the injections did not relieve Ms. Simon's increasing back pain and radiating leg pain, Dr. Miranne recommended a microdiscectomy at the L3-L4 level, which occurred in June 2013. Ms. Simon continued to experience lingering back and leg pain, and after exhausting all conservative measures, Dr. Miranne performed a spinal fusion on August 10, 2017.

Ms. Simon also claimed that after the accident, she experienced increased pain in her hip. She saw an orthopedic surgeon, Dr. Chad Millet, and he diagnosed a labral tear in her hip following an MRI. He performed arthroscopic surgery on Ms. Simon's hip on March 4, 2015. Ms. Simon also sought past and future lost wages, as well as damages for loss of earning capacity, based on her claim that she was no longer able to work as an occupational therapist after the 2013 accident.

On September 16, 2019, the case proceeded to trial against State Farm before a jury. The parties stipulated that (1) Ms. Singleton was 100% at fault for the 2013 accident; (2) Ms. Simon's past medicals were in the amount of $188,927.78; and (3) Ms. Simon's past lost wages were in the amount of $345,542.02.³ On September 20, 2019, the jury returned a verdict in favor of Ms. Simon and against State Farm in the amount of $313,928.00. The jury awarded Ms. Simon the following damages:

329 So.3d 1077

GENERAL DAMAGES:
Past, present & future Physical Pain and Suffering	$35,000.00
Past, present & future Mental Anguish	$ —
LOST OF ENJOYMENT OF LIFE:
Past, present & future	$ —
PAST MEDICAL EXPENSES:	$188,928.00
FUTURE MEDICAL & LIFE CARE EXPENSES:	$ 90,000.00
PAST LOST WAGES:	$ —
FUTURE LOST WAGES & LOSS OF EARNING CAPACITY:	$ —
TOTAL:	$313,928.00

On November 19, 2019, after deducting the appropriate credit due to State Farm, the trial court made the jury's verdict the judgment of the court, finding in favor of Ms. Simon and against State Farm in the amount of $91,670.00, plus interest and costs.⁴ Subsequently, State Farm filed a motion for new trial and Ms. Simon filed a motion for JNOV and/or motion for new trial, or alternatively, for additur ("motion for JNOV"). The trial court denied the parties’ post-trial motions. Ms. Simon filed the instant appeal.

DISCUSSION

General Damages for Past, Present and Future Pain and Suffering

In her first assignment of error, Ms. Simon argues that the jury abused its discretion by awarding only $35,000.00 in general damages for her past, present and future physical pain and suffering. She also argues that the trial court erred as a matter of law in denying her JNOV, and alternative motions for new trial and additur.⁵ Ms. Simon specifically argues that the jury's award is abusively low and inconsistent because the jury clearly determined the 2013 accident caused her back and hip injuries by awarding her $188,928.00 for her past medical expenses and

329 So.3d 1078

$90,000.00 for future medical expenses. She contends the past medical expenses include costs for three surgeries and State Farm stipulated to allow her the full amount of her past medical expenses once the jury found causation existed for her injuries.

State Farm argues in opposition that the jury awarded only $35,000.00 for Ms. Simon's physical pain and suffering because it accepted the testimony of its medical expert, Dr. Monroe Laborde, and determined that Ms. Simon only sustained soft tissue injuries as a result of the 2013 accident. State Farms bases its argument on two grounds. First, it contends that the jury did not believe Ms. Simon met her burden to...