Smoot v. Hernandez
| Citation | 6 So.3d 352 |
| Decision Date | 04 March 2009 |
| Docket Number | No. 2008-1121.,2008-1121. |
| Parties | Tina SMOOT, Individually and on Behalf of Her Minor Children, Malcolm Smoot and Coretta Smoot, and Elizabeth Bennett and Aaron Bennett v. Ken HERNANDEZ, et al. |
| Court | Court of Appeal of Louisiana — District of US |
Brian M. Caubarreaux, Derrick G. Earles, Emily G. Meche, Brian Caubarreaux and Associates, Marksville, LA, for Plaintiff/Appellee, Tina Smoot.
Harry J. Philips, Jr., Cynthia M. Amedee, Taylor Porter Brooks & Phillips L.L.P., Baton Rouge, LA, for Defendants/Appellants, Ken Hernandez and Employers Mutual Casualty Company.
Jeffery Ingram, Alexandria, LA, for Defendant/Appellee, State Farm Fire & Casualty Company.
Court composed of MARC. T. AMY, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
In this personal injury case, Defendants appeal the trial court's grant of Plaintiffs Motion for Judgment Notwithstanding the Verdict and Alternatively Motion for New Trial and/or Additur (JNOV) and its subsequent award of general damages and future medical expenses. Plaintiff attempted to answer the appeal, seeking modification of the general damage award. Defendants moved to strike Plaintiffs answer to appeal. For the following reasons, we affirm the trial court's grant of the JNOV, affirm the trial court's award of general damages, affirm the trial court's award of future medical expenses, and strike Plaintiffs answer to appeal.
On November 1, 2006, in Bunkie, Louisiana, Plaintiff, Tina Smoot, was involved in an automobile accident with Defendant, Ken Hernandez, who was in the course and scope of his employment with Tommy Williams Plumbing at the time of the accident. Ms. Smoot, individually, and on behalf of her minor children, Malcolm Smoot and Coretta Smoot, Elizabeth Bennett, and Aaron Bennett, instituted the present action against Mr. Hernandez, Employers Mutual Casualty Company, the liability insurer of Tommy Williams Plumbing (hereinafter collectively referred to as Mr. Hernandez), and State Farm Fire and Casualty Company,1 Ms. Smoot's own uninsured/underinsured insurer. State Farm Mutual Automobile Insurance was also later added as a defendant in its capacity as the liability insurer of Mr. Hernandez.
Following a stipulation as to the liability of Mr. Hernandez, the claims of Ms. Smoot proceeded to trial by jury on April 2-3, 2008.2 The jury returned a verdict in favor of Ms. Smoot in the amount of $101,228.70 for past medical expenses only. The jury did not award any amount for general damages or future medical expenses. The trial court signed a judgment in accordance with the jury verdict on April 11, 2008.
On April 18, 2008, Ms. Smoot filed a Motion for Judgment Notwithstanding the Verdict and Alternatively Motion for New Trial and/or Additur. Following a hearing on May 9, 2008, the trial court granted the JNOV, affirmed the jury award of $101,228.70 representing past medical expenses, awarded $10,000.00 in future medical expenses, and awarded $250,000.00 in general damages, for a total award of $361,228.003 in favor of Ms. Smoot. The trial court signed a judgment in accordance therewith on January 16, 2008, and Mr. Hernandez appealed. Ms. Smoot attempted to answer the appeal, and Mr. Hernandez filed a motion to strike same. The motion to strike was referred to the merits.
Mr. Hernandez raises the following issues for our review:
1. Whether the trial court erred as a matter of law in granting a motion for judgment notwithstanding the verdict in favor of Plaintiff-Appellee[,] Tina Smoot.
2. If the JNOV was otherwise proper as a matter of law, whether the trial court abused its discretion in awarding an excessive amount for general damages and future medicals to Plaintiff-Appellee[,] Tina Smoot.[4]
The mechanism by which a judgment notwithstanding the verdict may be granted is provided by La.Code Civ.P. art. 1811.[5] In describing the circumstances under which a JNOV is appropriate, the Louisiana Supreme Court has explained that the procedure is to be used only when the facts and circumstances favor one party so overwhelmingly that reasonable men could not arrive at a contrary verdict. Anderson v. New Orleans Public Service, 583 So.2d 829 [(La.1991)]. It is inappropriately used in cases in which the evidence merely preponderates in favor of the moving party. Id. Also, we are mindful that the motion must not be granted if there is evidence in opposition that is of such quality and weight that it would permit "reasonable and fairminded men in the exercise of impartial [judgment]" to reach different conclusions. Id. at 832. Finally, the court cautioned that, in weighing whether a JNOV is appropriate, the court should not weigh witness credibility and should resolve all reasonable inferences/factual questions in favor of the non-moving party. Id. See also Davis v. Wal-Mart Stores, Inc., 00-0445 (La.11/28/00); 774 So.2d 84.
On review, an appellate court employs a two-part inquiry when considering whether a JNOV is appropriate. Davis, 00-445; 777 So.2d 84. First, applying the same criteria as the trial court, the appellate court must determine if the trial court erred in granting the motion. Id. Next, if the appellate court determines that the standard was correctly applied to the jury verdict at the trial level, the appellate court must then review the JNOV granted using the manifest error standard of review. Id.
Bowie v. Young, 01-715, p. 12 (La.App. 3 Cir. 3/20/02), 813 So.2d 562, 570-71, writ denied, 02-1079 (La.6/21/02), 819 So.2d 335.
Mr. Hernandez contends that the trial court committed legal error in granting the JNOV. For the following reasons, we find that the trial court's grant of the JNOV entered on general damages and future medical expenses was warranted. We, therefore, affirm the trial court's grant of the JNOV in favor of Ms. Smoot.
As this court stated in Murchison v. Lyndon Property Insurance Co., 04-933, p. 3 (La.App. 3 Cir. 12/30/04), 896 So.2d 214, 217-18, writ denied, 05-274 (La.5/13/05), 902 So.2d 1016:
Louisiana Code of Civil Procedure Article 1811 controls the use of a judgment notwithstanding the verdict (JNOV). Although the Article does not specify the grounds on which a trial judge may grant a JNOV, the supreme court in Joseph v. Broussard Rice Mill, 00-628 (La.10/30/00), 772 So.2d 94, sets forth the criteria in determining when a JNOV is proper. A JNOV is proper when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. Id.
As explained by our supreme court, "[t]he motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover." Trunk v. Med. Ctr. of Louisiana at New Orleans, 04-181, p. 4 (La.10/19/04), 885 So.2d 534, 537 (quoting Joseph, 772 So.2d at 99).
In the case at bar, the jury awarded Ms. Smoot special damages in the amount of $101,228.70, constituting past medical expenses which she incurred as result of the subject accident. However, the jury did not render an award of general damages. Mr. Hernandez asserts on appeal that the jury's failure to award Ms. Smoot any amount of general damages was "not abusively low or unreasonable." Rather, he contends that the jury's verdict was the result of the evidence presented at trial demonstrating that:
(1) Smoot had a long, pre-existing history of back and leg pain unrelated to the accident at issue; (2) the medical experts disagreed as to whether the lumbar fusion that Smoot elected to have was even medically necessary; (3) the jury's award of zero general damages and future medicals was factually correct; (4) Smoot's credibility was seriously challenged and found to be deficient; and (5) Smoot failed to mitigate her damages by being non-compliant with her treating physician's recommended course of treatment.
Ms. Smoot argues that "Louisiana jurisprudence has long held that where there is a factual finding that a plaintiff was injured and incurred medical expenses as a result of another's fault, the failure to award general damages is legal error unless special damages have been incurred without attendant physical pain and suffering." Specifically referring to a JNOV, Ms. Smoot contends that "[a] judgment notwithstanding the verdict is also warranted where a jury finds that a plaintiff has sustained new injuries or aggravation of a preexisting condition and awards past and future medical expenses, but award[s] no general damages." Mindful of the standards set forth above relative to a JNOV, we have thoroughly reviewed the record of these proceedings.
On the evening of the accident at issue, Ms. Smoot presented to the emergency room at the Bunkie General Hospital. The following day, November 2, 2006, she saw her family physician, Dr. Newell Gauthier. Ms. Smoot underwent conservative treatment with Dr. Gauthier. However, due to continuing complaints, Dr. Gauthier ordered an MRI which revealed disc herniations at L4-5 and L5-S1. Dr. Gauthier then referred Ms. Smoot to Dr. Louis Blanda, an orthopedic surgeon, who then became Ms. Smoot's primary caretaker for any accident related injuries.
Ms. Smoot first saw Dr. Blanda April 10, 2007. After physical therapy, steroid injections, and additional testing, including nerve conduction studies and a cervical MRI which revealed disc herniations at C4-5 and C6-7, Dr. Blanda ultimately performed a two-level lumbar disc fusion on Ms. Smoot in February of 2008. Dr. Blanda's observations during surgery confirmed the lumbar disc herniations which had been revealed by the diagnostic testing.
What is indisputable from the record is that Ms. Smoot had a two-level disc herniation for which she underwent a lumbar fusion. The jury obviously accepted this fact and awarded her the...
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