Opinion
NO. 2021-CA-0590
10-05-2022
Linda BOMBARDIER v. Richard CLASEN, Farmers Insurance Group, and Progressive Security Insurance Company
Bruce C. Dean, Dean Law Firm LLC, P. O. Box 127, Chalmette, LA 70044, Michele Gaudin, MICHELE GAUDIN, LLC, 433 Metairie Rd., Suite 100, Metairie, LA 70005, COUNSEL FOR PLAINTIFF/APPELLEE James Ryan III, JAMES RYAN III & ASSOCIATES, LLC, 201 St. Charles Avenue, Suite 2401, New Orleans, LA 70170, Margaret Emily Woodward, ATTORNEY AT LAW, 1229 N. Tonti Street, New Orleans, LA 70119, COUNSEL FOR DEFENDANT/APPELLANT
Bruce C. Dean, Dean Law Firm LLC, P. O. Box 127, Chalmette, LA 70044, Michele Gaudin, MICHELE GAUDIN, LLC, 433 Metairie Rd., Suite 100, Metairie, LA 70005, COUNSEL FOR PLAINTIFF/APPELLEE
James Ryan III, JAMES RYAN III & ASSOCIATES, LLC, 201 St. Charles Avenue, Suite 2401, New Orleans, LA 70170, Margaret Emily Woodward, ATTORNEY AT LAW, 1229 N. Tonti Street, New Orleans, LA 70119, COUNSEL FOR DEFENDANT/APPELLANT
(Court composed of Judge Joy Cossich Lobrano, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Tiffany Gautier Chase, Judge Dale N. Atkins )
Judge Rosemary Ledet This is a personal injury suit arising out of a rear-end collision. The appellant, Church Mutual Insurance Company ("Church Mutual"), seeks review of the trial court's judgment granting the motion for judgment notwithstanding the verdict ("JNOV") filed by the appellee, Linda Bombardier ("Ms. Bombardier"), raising the jury's quantum awards. Church Mutual also appeals the trial court's denial of its motion to amend judgment. Ms. Bombardier answered the appeal, seeking a further increase in the quantum awards. For the reasons that follow, we reverse the trial court's judgment on the JNOV in part, reinstate the jury's verdict in part, amend the trial court's judgment to reflect our rulings, and render judgment.
Judge Ledet was designated as the writer on September 29, 2022.
FACTUAL AND PROCEDURAL BACKGROUND
This lawsuit stems from an October 2012 collision. The vehicle Dr. Richard Clasen ("Dr. Clasen") was operating rear-ended the vehicle Ms. Bombardier was operating on Paris Road in St. Bernard Parish (the "Collision"). Seeking to recover damages she allegedly sustained in the Collision, Ms. Bombardier filed suit against Dr. Clasen and his insurer, Mid-Century Insurance Company (incorrectly named Farmers Insurance Group) ("Mid-Century"). In her petition, Ms. Bombardier alleged that she sustained injuries to her neck, back, shoulders, and hands. She also alleged loss of earnings as a physical therapist.
Ms. Bombardier also named her under-insured motorist carrier, Progressive Security Insurance Company ("Progressive"), as a defendant. Before trial, she settled her claim with Progressive and dismissed Progressive from the suit. Progressive is not a party to this appeal.
At the time of the accident, Ms. Bombardier was a self-employed physical therapist and the sole owner of a physical therapist business—Motion Dynamics, LLC. Ms. Bombardier asserted a damages claim for the loans that she allegedly made to fund Motion Dynamics, LLC, since the accident. Both the jury and the trial court, in ruling on the JNOV, rejected this damages claim, finding Ms. Bombardier was not entitled to any damages for loans attributable to the Collision.
Ms. Bombardier subsequently amended her petition to allege that, at the time of the Collision, Dr. Clasen was on a mission for St. Luke's Evangelical Lutheran Church ("St. Luke"). In her amended petition, she added St. Luke's insurer, Church Mutual, as a defendant. Thereafter, Ms. Bombardier settled her claim against Mid-Century, but reserved her right to pursue any collectible insurance available to Dr. Clasen, specifically the policy provided by Church Mutual to St. Luke.
The jurisprudence has named this type of settlement as a Gasquet settlement. See Jones v. Capitol Enterprises, Inc ., 11-0956, p. 6 (La. App. 4 Cir. 5/9/12), 89 So.3d 474, 480 (citing Gasquet v. Commercial Union Ins. Co. , 391 So.2d 466 (La. App. 4th Cir. 1980) ). In Gasquet , the plaintiff settled her claim with the defendant's primary insurer for less than policy limits and then proceeded against the defendant's excess insurer. The issue was whether as a result of that settlement the plaintiff released the excess insurer from its liability. Answering that question in the negative, this court held that a defendant may be released with his rights reserved against an insurer.
Before trial, the parties stipulated that Dr. Clasen, Mid-Century, and Church Mutual were liable for the Collision and that Ms. Bombardier "did not cause or contribute to" the Collision. The defendants—Dr. Clasen, Mid-Century, and Church Mutual—reserved "all rights to challenge [Ms.] Bombardier's entitlement to damages or any causal link between the [Collision] and [Ms.] Bombardier's alleged damages and any injuries that might relate to the [Collision]."
The case proceeded to a four-day jury trial against two defendants—Dr. Clasen (nominally) and Church Mutual—on two issues—medical causation (the nature of Ms. Bombardier's injuries and the extent her injuries were attributable to the Collision) and damages. The jury returned a verdict in Ms. Bombardier's favor. In response to the first jury interrogatory, the jury found it was more likely than not that the Collision was the cause-in-fact of the injuries sustained by Ms. Bombardier. In response to the second jury interrogatory, the jury itemized the damages caused by the Collision and proved by Ms. Bombardier as follows:
| Past Pain and Suffering: | $0.00 |
| Future Pain and Suffering: | $0.00 |
| Past Medical Expenses: | $51,537.00 |
| Future Medical Expenses: | $30,855.00 |
| Past Lost Income: | $173,608.00 |
| Future Lost Income: | $90,000.00 |
| Loans Attributed to [Collision]: | $0.00 |
| Loss of Earning Capacity: | $0.00 |
| Loss of Life's Enjoyment: | $0.00 |
| Total Damages | $346,000.00 |
On May 20, 2020, the trial court rendered a judgment that included the following provisions:
• Adopted the jury's verdict as the judgment of the court, finding in Ms. Bombardier's favor and against Church Mutual and Dr. Clasen in the total amount of $346,000.00;
• Awarded legal interest from the date of judicial demand, October 8, 2013, until paid;
• Assessed all costs against Church Mutual; and
• Acknowledged Church Mutual's right to a credit for Mid-Century's underlying policy limits of $500,000.00 (the "May Judgment").
In response, Ms. Bombardier filed a JNOV motion; and Church Mutual filed a motion to amend the May Judgment. In its motion to amend, Church Mutual requested that the judgment be amended in three respects: (i) to reflect that it prevailed against Ms. Bombardier as the jury verdict was significantly under the $500,000.00 credit; (ii) to reflect that it owes no legal interest; and (iii) to assess costs against Ms. Bombardier. The trial court denied Church Mutual's motion to amend and granted, in part, Ms. Bombardier's JNOV motion. In granting the JNOV in part, the trial court amended the awards in the May Judgment as follows:
General Damages $217,500.00 Past Medical Expenses $84,982.41 Future Medical Expenses $263,910.00 Past Lost Income (No Change) $173,608.00 Future Lost Income $180,000.00 Loans Attributed to [Collision] $0.00 Total Damages $920,000.414
[Editor's Note: The preceding image contains the reference for footnote ]
On June 3, 2021, the trial court amended its reasons for judgment associated with the judgment denying Church Mutual's motion to amend to reflect that its additur brought the damages up to a total of $920,000.41.
This appeal followed. Although Church Mutual asserts five assignments of error, one is dispositive—whether the trial court erred in making an award for injuries the jury determined the Collision did not cause.
Church Mutual assigns the following five errors:
1) The trial court erred in substituting its judgment on quantum for jury decisions that were reasonably supported by the evidence;
2) The trial court erred in making an award for injuries the jury determined were not caused by the [Collision];
3) The trial court erred in partially granting Ms. Bombardier's motion in limine;
4) The trial court erred in charging all cost to Church Mutual; and
5) The trial court erred in charging Church Mutual for interest not covered by its policy.
JNOV PRINCIPLES AND STANDARD OF REVIEW
The governing statutory provision regulating a JNOV is La. C.C.P. art. 1811. This article provides that a JNOV may be granted on the issue of liability, the issue of damages, or both. La. C.C.P. art. 1811(F). Although this article does not specify the grounds upon which a trial court may grant a JNOV, the criteria have been jurisprudentially established. Templet v. State ex rel. Dept. of Transp. and Development , 00-2162, p. 5 (La. App. 1 Cir. 11/9/01), 818 So.2d 54, 58.
The jurisprudence has observed that an appellate court reviews a judgment granting a JNOV by applying the same criteria used by the trial court. Anderson v. New Orleans Pub. Serv., Inc ., 583 So.2d 829 (La. 1991) (citing Scott v. Hospital Service District. No. 1 , 496 So.2d 270 (La. 1986) ). The jurisprudence has established the following standard for granting a JNOV:
• The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover.
• If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied.
• In making this determination, the court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party.
Anderson , 583 So.2d at 832 (internal citation omitted and text reformatted).
The jurisprudence, thus, has established a rigorous standard for granting a JNOV. Under this standard, "[n]either the trial court, nor this court can substitute its evaluation of the evidence for that of the jury unless the jury's conclusions totally offend reasonable inferences from the evidence." Templet , 00-2162, p. 5, 818 So.2d at 58. The rigorous standard to be applied when determining whether or not a motion for JNOV should be denied is based upon the principle that "[w]hen there is a jury, the jury is the trier of fact." Adams v. Voyager Indemnity Ins. Co., 02-1333, p. 3 (La. App. 4 Cir. 10/1/03), 858 So.2d 681, 684. A trial court's authority to grant a JNOV under Louisiana Code of Civil Procedure Article 1811 is limited by the jurisprudence to those cases where the jury's verdict is absolutely unsupported by any competent evidence. Davis v. Lazarus, 04-0582, p. 8 (La. App. 4 Cir. 3/8/06), 927 So.2d 456, 461 (citing Selico v. Intercontinental Bulk Tank Corporation , 98-0763, p. 9 (La. App. 4 Cir. 5/12/99), 733 So.2d 1240, 1245 ).
DISCUSSION
On appeal, Church Mutual concedes that the trial court correctly granted the JNOV, in part, and awarded $17,500.00 in general damages for the aggravation of Ms. Bombardier's shoulder injury (the "shoulder re-injury"). Church Mutual, however, contends that the trial court erred in granting the JNOV in all other respects. Stated otherwise, Church Mutual contests the trial court's finding that the Collision also caused Ms. Bombardier to suffer back and neck injuries and its awarding of the following additional amounts attributable to her back and neck injuries:
Church Mutual's concession is based on the jurisprudence recognizing the inconsistency in a jury's award of substantial special damages for an injury without any corresponding award of general damages. The Louisiana Supreme Court has observed that "[when] a jury has awarded special damages but declined to award general damages, ‘as a general proposition,’ the verdict may ‘often’ be so inconsistent as to constitute an abuse of discretion." Thibodeaux v. Donnell , 16-0570, p. 9 (La. 1/20/17), 219 So.3d 274, 280.
• general damages for the neck injury of $100,000.00;
• general damages for the back injury of $100,000.00;
• past medical expense of $33,445.41 (increasing the jury's past medical expenses award to $84,982.41);
• future medical expenses for cervical surgery ($84,518.00), an artificial cervical disc ($92,418.00), and lumbar surgery ($56,119.00) (increasing the jury's future medical expenses award to $263,910.00); and
• future lost income of $90,000.00 "which provides compensation for another year of recovery for the cervical and lumbar surgeries" (increasing the jury's future lost income award to $180,000.00).
The thrust of Church Mutual's position is that the trial court, in granting the JNOV, wrongly set aside the jury's verdict on medical causation. Church Mutual contends that the jury confined its finding of medical causation to Ms. Bombardier's shoulder re-injury.
Ms. Bombardier counters that the jury found all her injuries were caused by the Collision. In support, she cites the jury's affirmative answer to the first jury interrogatory—"[i]s it more likely than not that the [Collision] was the cause in fact of the injuries sustained by [Ms.] Bombardier?" She further counters that Church Mutual agreed the jury erred, as a matter of law, in failing to award any general damages and agreed that a JNOV on quantum of such damages was appropriate. Once the trial court granted a JNOV on any issue, Ms. Bombardier contends, the trial court became the trier of fact on every issue before the jury.
Agreeing with Ms. Bombardier, the trial court revisited all the issues before the jury—medical causation and damages. In so doing, the trial court erred in two respects. First, the trial court, by adopting Ms. Bombardier's position, overstated the scope of Church Mutual's agreement. In its reasons for judgment, the trial court observed: "At the hearing on this matter, the parties agreed that the jury erred in failing to award general damages to the Plaintiff. Therefore, the [JNOV] as to general damages is GRANTED and the only issue before the Court in regard to these damages is quantum." But, contrary to the trial court's observation and Ms. Bombardier's position, Church Mutual's agreement was limited to a specific injury—the shoulder re-injury—and specific damages—general damages for the shoulder re-injury. As noted elsewhere in this opinion, Church Mutual's agreement was limited to correcting the inconsistency in the jury's award of substantial past and future special damages for the shoulder re-injury without awarding any general damages for that specific injury. The same inconsistency is not present in the jury's award of no general damages for the neck and shoulder injuries; the jury failed to award any future medical expenses or future lost income for the neck and shoulder injuries.
Church Mutual's agreement did not extend to making any awards for the separate injuries—neck and back injuries—that the jury did not find were caused by the Collision. To the extent the trial court relied on Church Mutual's agreement to grant a JNOV on quantum, in general, it erred. Given there was an agreement to carve out a JNOV limited to one specific injury—the shoulder re-injury—and one specific type of damages—general damages for that injury, we pretermit addressing Ms. Bombardier's argument that the grant of JNOV on any issue renders the trial court the trier of fact on all issues. Here, an agreement of the parties formed the basis for a JNOV on single issue—damages due for a specific injury. The agreement, however, did not transform the trial court into the trier of fact as to any other issue the jury decided. We, thus, turn to the dispositive issue of whether the trial court erred in making an award for injuries the jury determined the Collision did not cause.
The appropriate starting point is an analysis of the jury's answers to the interrogatories. Causation was put to the jury in the first interrogatory, which asked "[i]s it more likely than not that the [Collision] was the cause in fact of the injuries sustained by [Ms.] Bombardier?" The jury's affirmative answer to this interrogatory, if viewed in isolation, is ambiguous because it can be construed to mean that the jury found either all or some of Ms. Bombardier's injuries were caused by the Collision. But, the jury's response to the second interrogatory clarifies any ambiguity.
The second interrogatory asked the jury to set forth the amount it believed would fairly compensate Ms. Bombardier "for injuries and damages caused by the [Collision]." The jury's answer to the second interrogatory demonstrates the jury's finding that the only injury caused by the Collision was Ms. Bombardier's shoulder re-injury. This finding is reflected in the jury's award of future medical expenses in the exact amount that Ms. Bombardier's expert estimated to be the cost of the future shoulder repair surgery, coupled with the jury's award for future lost wages solely for the time to recover from the future shoulder repair surgery. The jury also declined to award the full amount of past medical expenses, reflecting its finding that not all of Ms. Bombardier's injuries were caused by the Collision.
The trial court acknowledged in its reasons for judgment that the jury only awarded damages for Ms. Bombardier's shoulder re-injury. The trial court, nonetheless, found that "based on the medical evidence and testimony presented at trial ... [Ms. Bombardier] suffered a neck injury, a back injury and an aggravation to a pre-existing injury to her right shoulder as a result of the [Collision]." This finding, as Church Mutual contends, is the crux of the trial court's error.
Based on this finding, the trial court framed the issue before it on the JNOV as fixing the quantum for each of these three specific injuries—the neck, back, and shoulder re-injury. The flaw in this analysis is that it fails to first address whether a JNOV was warranted on the jury's medical causation finding—a factual finding that the Collision only caused the shoulder re-injury. Simply because a JNOV was warranted to award general damages for the specific shoulder re-injury—given the substantial special damages, including future medical expenses and future lost earnings awarded by the jury for that shoulder re-injury—does not translate into a finding that a JNOV was warranted as to any other specific injury.
The trial court, in ruling on the JNOV, redefined the injury Ms. Bombardier sustained as a result of the Collision to include not only the shoulder re-injury, but also neck and back injuries. The jury, however, only found the Collision caused the shoulder re-injury. The initial issue presented in reviewing the trial court's grant of the JNOV motion, thus, must be whether reasonable people could have arrived at a verdict that the only injury caused by the Collision was the shoulder re-injury. The jury heard the testimony of expert witnesses, examined all pertinent medical records, and evaluated Ms. Bombardier's credibility. The jury was informed that Ms. Bombardier was involved in other motor vehicle accidents and that she had a prior work-related accident in 2008 that injured her shoulder. The jury also was informed that Ms. Bombardier's failure to have shoulder surgery to correct her shoulder injury could have contributed to any neck or back problems she experienced. After examining all of the evidence, the jury made a determination regarding medical causation.
A similar issue was addressed in Caskey v. Merrick Const. Co ., 46,886 (La. App. 2 Cir. 3/14/12), 86 So.3d 186, by the dissenting judge. The Caskey case was a tort suit in which the trial court granted the plaintiff's JNOV motion as to, among other issues, general damages. The majority in Caskey affirmed the trial court. The dissenting judge, however, observed "there is a vast difference between the jury's award of $1,872.50 in general damages and the JNOV awards of the trial judge of $175,000 (pain and suffering and loss of enjoyment of life)" and that this vast difference is due to the definition of the specific injury the plaintiff suffered. The dissenting judge further observed that "[t]he trial court specifically found that [the plaintiff] suffered a herniated disc in the accident, a new and severe injury," but "the jury obviously found that no disc injury occurred in the accident." For this reason, the dissenting judge framed the issue presented in reviewing the trial court's grant of the JNOV motion as "whether reasonable people could have arrived at a verdict that no disc herniation resulted from the accident."
Continuing, the dissenting judge observed that "[t]his issue is different from the question of the amount of damages for pain and suffering which has a different standard of review by both the trial judge in a JNOV review and the appellate court. Again, any judicial reaction to the extremely low and odd quantum figure of $1,872.50 for pain and suffering does not allow the judiciary to find an injury completely different from what the jury reasonably determined." The dissenting judge, thus, would have reinstated the jury's award.
Applying the standards for granting a JNOV to the medical causation issue, we find the trial court erred in reversing the jury's finding that the accident caused only Ms. Bombardier's shoulder re-injury. The jury's finding that Ms. Bombardier's only specific injury the Collision caused was the shoulder re-injury cannot be said to be "absolutely unsupported by any competent evidence." Davis , supra . Simply stated, the requirement that reasonable jurors could not arrive at a contrary verdict cannot be met. The jury was presented with conflicting medical and lay evidence on the causation issue on which it could have reasonably relied to decide that only Ms. Bombardier's shoulder re-injury was caused by the Collision. The trial court, thus, erred in setting aside the jury's finding that the Collision only caused Ms. Bombardier's shoulder re-injury. Given this finding, the trial court likewise erred in awarding additional general and special damages—future medical expenses and future lost income—for Ms. Bombardier's back and neck injuries.
Summarizing, we affirm the grant of the JNOV to award $17,500.00 general damages for the shoulder re-injury; in all other respects, we reverse the JNOV and reinstate the jury's verdict. The jury's verdict, as increased by the $17,500.00 general damages award, sums to $363,500.00, which is less than the $500,000.00 credit due to Church Mutual. Given that Church Mutual is not cast with paying any amount, no legal interest is owed by Church Mutual—an excess insurer. See McGowan v. Sewerage & Water Bd. of New Orleans , 555 So.2d 472, 478 (La. App. 4th Cir. 1989) (citing O'Donnell v. Fidelity General Insurance Co ., 344 So.2d 91 (La. App. 2d Cir.1977) )) (observing that an excess insurer is liable for legal interest only on the portion of judgment for which it was cast). Likewise, given Church Mutual is not cast with paying any amount, Ms. Bombardier cannot be viewed as the prevailing party and we decline her invitation to cast Church Mutual with court costs. Given these findings, we pretermit an analysis of the evidentiary issues Church Mutual raises on appeal and the issues Ms. Bombardier raises in her answer to the appeal regarding inadequacy of the quantum awards.
DECREE
For the foregoing reasons, the trial court's judgment granting the JNOV is affirmed in part as to the $17,500.00 general damage award for the shoulder re-injury and reversed in all other respects; except for the increase in the general damage award to $17,500.00 for the shoulder re-injury, the jury verdict is reinstated. The trial court's judgment is amended to delete the awards of legal interest and costs.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that there be judgment in favor of Ms. Bombardier and against Church Mutual in the following manner:
| General Damages (Shoulder Re-Injury): | $17,500.00 |
| Past Medical Expenses: | $51,537.00 |
| Future Medical Expenses: | $30,855.00 |
| Past Lost Income: | $173,608.00 |
| Future Lost Income: | $90,000.00 |
For a total award of $363,500.00, subject to Church Mutual's credit of $500,000.00.
REVERSED IN PART; AFFIRMED IN PART; JUDGMENT AMENDED; AND JUDGMENT RENDERED
LOBRANO, J., DISSENTS FOR THE REASONS ASSIGNED BY JENKINS, J.
JENKINS, J., DISSENTS WITH REASONS
JENKINS, J., DISSENTS WITH REASONS
I respectfully dissent. I do not find that the trial court erred in setting aside the jury's verdict and awarding additional damages for neck and back injuries.
The majority opinion finds that the trial court erred in reversing the jury's finding that the accident caused only Ms. Bombardier's shoulder re-injury and awarding additional general and special damages for Ms. Bombardier's back and neck injuries. However, to reach such a conclusion is speculative when the jury interrogatories did not delineate Ms. Bombardiers’ injuries.
In Delores M. v. S. Farm Bureau Cas. Ins. Co ., 44,883, p. 1 (La. App. 2 Cir. 1/6/10), 29 So.3d 654, 658, the appellate court reviewed whether the trial court erred in granting the plaintiff's motion for judgment not withstanding the verdict and increasing the jury's award by $500,000.00. The jury failed to award past special damages, general damages, and loss of earning capacity. Id. The court explained that the jury's verdict which failed to award general damages was illogical and inconsistent, representing an abuse of discretion. The court also noted that "the jury's award for special medical damages only purported to address the future medical expenses, ignoring the past special medical damages which were stipulated by the parties." Id. at p. 9, 29 So.3d at 661. The court provided:
The jury was obviously confused in filling out the verdict form without consideration of the previously tendered insurance payments as instructed by the form. In such case, neither the trial court nor a court of appeal can speculate regarding what the flawed jury verdict might mean ... The trial court was therefore correct in granting the JNOV, overruling the jury's verdict, and conducting a de novo review of the record for the determination of damages and the issue of penalties.
Id . at p. 9, 29 So.3d at 661-62. The Delores M . court noted that awards for lost future income are inherently speculative, and courts must exercise sound discretion to render awards which are consistent with the record and do not work a hardship on either party. Id. at p. 17, 29 So.3d at 665 (citing Doss v. Second Chance Body Armor, Inc ., 34,788 (La. App. 2 Cir. 8/22/01), 794 So.2d 97 ). From the appellate court's review of the record, it found that the trial court's additional award for future economic loss and training and medical expenses were adequate. Id . at 18, 29 So.3d at 666.
Here, the majority's theory is that causation was put to the jury in the first interrogatory and the jury's affirmative answer to the interrogatory is ambiguous because it can be construed to mean that the jury found either all or some of Ms. Bombardier's injuries were caused by the October 10, 2012 accident; however, the jury's response to the second interrogatory clarifies any ambiguity.
I do not agree with the majority's assessment that the accident only caused a re-injury to Ms. Bombardier's shoulder. The jury's award of $51,537.00 for past medical expenses exceed the $22,145.41 in past medical expenses that were introduced at trial for Ms. Bombardier's shoulder injury.
Similar to Delores M. , the record shows that the jury was confused in filling out the verdict form. The jury determined that October 10, 2012 accident was the cause in fact of Ms. Bombardier's injuries. Conversely, the jury interrogatories did not delineate Ms. Bombardier's injuries. The first interrogatory asked, "[i]s it more likely than not that the accident of October 10, 2012 was the cause in fact of the injuries sustained by Linda Bombardier." [Emphasis added.] If the jury answered "YES," they were instructed to proceed to the second interrogatory relative to the amount that would fairly compensate Ms. Bombardier for her injuries and damages caused by the October 10, 2012 accident. While the jury responded affirmatively and awarded $346,000.00, it to failed to follow the second interrogatory relative to specifically designating amounts for general and special damages.
After the jury returned its verdict, the trial court noted "[y]ou all have only indicated one number, and you didn't fill in the blanks; so that is problematic because I specifically instructed you to put numbers in the blanks that provided for each answer to No. 2 if you answered ‘yes’ to No. 1. So as this form is improper ..." The trial court then instructed the jury to fill in the blanks. Five minutes later, the jury returned with the verdict form, designating $51,537.00 in past medical expenses, $30,855.00 in future medical expenses, $173,608.00 in past lost income, and $90,000.00 in future lost income. Moreover, the jury did not award any general damages.
The majority finds that that the trial court overstated the scope of Church Mutual's agreement that a JNOV was warranted. I disagree. In its reasons for judgment, the trial court acknowledged that the parties agreed that the jury erred in failing to award general damages to Ms. Bombardier. However, I do not find that a trial court solely grants a JNOV based off of a common acknowledgement of error by the parties.
When a trial court has determined that a JNOV is warranted because reasonable men could not differ on the fact that the award was abusively high or abusively low, it must determine the proper amount of damages to be awarded. Fox v. Layton , 42,491, p. 5 (La. App. 2 Cir. 10/17/07), 968 So.2d 302, 306. Once the jury verdict is set aside under the strict JNOV standards, the trial court is then the trier of fact. McAshan v. Jack's Pest Control , 1999-1068, p. 5 (La. App. 4 Cir. 1/5/00), 782 So.2d 1, opinion vacated on reh'g (Nov. 29, 2000), writ denied , 786 So.2d 733 (La. 2001) (citing Anderson v. New Orleans Public Service, Inc ., 583 So.2d 829, 834 (La.1991) ; Pino v. Gauthier , 633 So.2d 638, 653 (La. App. 1st Cir. 1993) ). The trial court considers the issue of damages de novo , and awards damages based upon its independent assessment of the injuries and damages. Lockett v. UV Ins. Risk Retention Grp., Inc. , 2015-166, p. 13 (La. App. 5 Cir. 11/19/15), 180 So.3d 557, 565 (citing Anderson , 583 So.2d at 834 (La.1991) ); see Graffia v. Louisiana Farm Bureau Cas. Ins. Co. , 2008-1480, p. 3 (La. App. 1 Cir. 2/13/09), 6 So.3d 270, 272. "In making this determination, the trial court is not constrained as are the appellate courts to raising (or lowering) the award to the lowest (or highest) point reasonably within the discretion afforded that court." Fox , 42,491, p. 5, 968 So.2d at 306. "In consequence, when reviewing the amount awarded by the trial court on JNOV, the appellate court employs the same analysis it would in any quantum challenge." Lockett , 2015-166, pp. 13-14, 180 So.3d at 565-66 (citing Anderson , 583 So.2d at 834 ).
In its reasons for judgment, the trial court, through its independent assessment, found that "based on the medical evidence and testimony presented at trial ... [Ms. Bombardier] suffered a neck injury, a back injury and an aggravation to a pre-existing injury to her right shoulder as a result of the accident at issue. The issue then turns to quantum for each of these injuries." The trial court considered Ms. Bombardier's surgery recommendations, and the fact that she had not yet undergone such surgeries. The trial court also took into consideration Ms. Bombardier's previous shoulder injury in awarding her $17,500.00 in general damages.
In supporting its de novo assessment of special damages, the trial court outlined the evidence presented on Ms. Bombardier's past and future medical expenses and future lost wages. The trial court stated that "the evidence is clear that a JNOV is warranted and that the facts and inferences point so strongly and overwhelmingly in favor of [Ms. Bombardier] that the court believes that reasonable jurors could not arrive at a contrary verdict." Based on its independent assessment, the trial court found that the jury's findings were not reasonable in light of the record viewed in its entirety.
I find that the trial court's reasons indicate that it properly considered the facts, testimonies, and evidence presented in this matter in making its award Accordingly, I do not find that the trial court erred in setting aside the jury's verdict and awarding additional damages. "Neither the trial court nor a court of appeal can speculate regarding what the flawed jury verdict might mean." Delores M. , 44,883, p. 9, 29 So.3d at 662.
The majority pretermits review of Church Mutual's remaining assignments of error, however, I find it necessary to address the remaining issues in relation to the validity of the final judgment entered by the trial court.
Motion in Limine
Prior to trial, Ms. Bombardier filed a motion in limine. The trial court held a hearing on the motion in limine. On October 15, 2019, the trial court granted in part and denied in part the motion in limine to exclude a record of plaintiff's visit to Freeman L. Garrett, DC. The trial court ruled that the record was not admissible but may be referred to in cross examination and may be used for impeachment purposes. The trial court granted the motion in limine to exclude irrelevant matters of personal history and plaintiff's past, such as her difficult marriage, divorce, and treatment for alcohol abuse. Additionally, the trial court granted the motion in limine excluding any witness offering testimony not based on personal knowledge, in particular the testimony of plaintiff's ex-husband, from whom she has been divorced for more than twenty years.
Church Mutual contends that the trial court erred in partially granting Ms. Bombardier's motion in limine. Church Mutual argues that the trial court excluded four relevant pieces of evidence: 1) Ms. Bombardier's visit to the chiropractor which identified both the subject accident and an accident that occurred in 2013 as sources of her pain; 2) evidence of Ms. Bombardier's marital and custodial history; 3) evidence that Ms. Bombardier has undergone multiple plastic surgery procedures before the accident and sought more afterwards; and 4) the police report of the accident.
"[T]he reviewing court must determine whether the alleged erroneous evidentiary ruling, when compared to the record in its totality, prejudiced the complaining party and had a substantial effect on the outcome of the case." FIE, LLC v. New Jax Condo Ass'n, Inc ., 2016-0843, 2017-0423, p. 42 (La. App. 4 Cir. 2/21/18), 241 So.3d 372, 400 (citing Freeman v. Phillips 66 Co. , 2016-0247, p. 5 (La. App. 4 Cir. 12/21/16), 208 So.3d 437, 441-42 ).
When the trial court rules evidence inadmissible, a proffer can be made pursuant to La. C.C.P. art. 1636. Danna v. Ritz-Carlton Hotel Co., L.L.C. , 2020-0116, 2020-0187, 2020-0318, p. 20 (La. App. 4 Cir. 3/24/21), ––– So.3d ––––, ––––, 2021 WL 1159726, *10. "[T]he purpose of mandating the trial court to allow the excluded evidence to be proffered is so that ‘the testimony (whatever its nature) is available for appellate review.’ " Danna , 2020-0116, 2020-0187, 2020-0318,p. 20, ––– So.3d at ––––, 2021 WL 1159726, *10 (quoting Ohm Lounge, L.L.C. v. Royal St. Charles Hotel, L.L.C ., 2010-1303, p. 10 (La. App. 4 Cir. 9/21/11), 75 So.3d 471, 477 ). Further, "[i]t is incumbent upon the party who contends his evidence was improperly excluded to make a proffer, and if he fails to do so, he cannot contend such exclusion is error." Yokum v. Funky 544 Rhythm & Blues Cafe , 2016-1142, pp. 26-27 (La. App. 4 Cir. 5/23/18), 248 So.3d 723, 742 (quoting Ritter v. Exxon Mobile Corp. , 2008-1404, p. 9 (La. App. 4 Cir. 9/9/09), 20 So.3d 540, 546.)
La. C.C.P. art. 1636(A) provides "[w]hen the court rules against the admissibility of any evidence, it shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence."
Here, the record is void of the August 15, 2019 hearing transcript on Ms. Bombardier's motion in limine. Further, the record on appeal does not indicate any evidence or testimony was proffered. "[A]n appellant has the duty to present a full record and state clearly the basis of his attribution of error when he appeals a judgment." Land Coast Insulation, Inc. v. Gootee Constr., Inc ., 2021-0052, p. 5 (La. App. 4 Cir. 9/24/21), ––– So.3d ––––, ––––, 2021 WL 4350221, *3, aff'd on reh'g , 2021-0052 (La. App. 4 Cir. 12/1/21), ––– So.3d ––––, writ denied , 333 So.3d 434 (La. 2022) (quoting Harts v. Downing , 2019-0620, p. 8 (La. App. 4 Cir. 6/24/20), 302 So.3d 102, 110 ). "When the record lacks a transcript that is pertinent to an issue raised on appeal, the inadequacy of the record is attributable to the appellant." Id. Without the August 15, 2019 hearing transcript, it is undeterminable whether any evidence or testimony was proffered, and review is limited to the evidence presented in the record. See La. C.C.P. art. 2164. Without proffered evidence in the record and without the ability to review that evidence, I cannot find that the trial court abused its discretion by excluding it.
La. C.C.P. art 2164 provides in pertinent part that "[t]he appellate court shall render any judgment which is just, legal, and proper upon the record on appeal."
Legal Interest
Additionally, I find that Church Mutual was correctly charged legal interest. Church Mutual argues that the trial court erred in charging Church Mutual for interest not covered in its policy. La. R.S. 13:4203 provides that "[l]egal interest shall attach from date of judicial demand, on all judgments, sounding in damages, ‘ex delicto’, which may be rendered by any of the courts." In tort cases, an award of legal interest is not discretionary with the court since interest attaches automatically until judgment is paid, whether prayed for in the petition or mentioned in the judgment. Dubois v. Armstrong , 2015-345, p. 18 (La. App. 3 Cir. 2/10/16), 186 So.3d 305, 318 (citing Odom v. City of Lake Charles , 2000-1050 (La. App. 3 Cir. 1/31/01), 790 So.2d 51 ). An excess insurer is liable for legal interest only on the portion of judgment for which it was cast. McGowan v. Sewerage & Water Bd. of New Orleans , 555 So.2d 472, 478 (La. App. 4th Cir.1989) (citing O'Donnell v. Fidelity General Insurance Company , 344 So.2d 91 (La. App. 2 Cir.1977) ). Here, the judgment reflects that legal interest applied only to the portion of the judgment subject to Church Mutual's underlying policy credit of $500,000.00.
Costs
With respect to costs, I find that Church Mutual was not the prevailing party and therefore not entitled to recover its costs from Ms. Bombardier. Church Mutual argues that because it is an excess insurer and the judgment did not exceed $500,000.000, costs cannot be accessed against it. As a general rule however, the party cast by the judgment bears all costs, including its own and those of the prevailing party. Certain St. Bernard Par. Gov't Computer Disks v. St. Bernard Par. Gov't ex rel. Ponstein , 2013-1054, p. 8 (La. App. 4 Cir. 12/18/13), 130 So.3d 56, 61. The judgment reflects that even subtracting the credit of $500.000.00, Church Mutual was still responsible for $420.000.41.
Finally, allocating cost against the prevailing party is considered an abuse of discretion absent proof that the prevailing party incurred costs pointlessly or engaged in other conduct that justified the allocation. Certain St. Bernard Par. Gov't Computer Disks , 2013-1057, pp. 8-9, 130 So.3d at 61 (citing Amato v. Office of Louisiana Comm'r of Sec. , 94-0082, p. 12 (La. App. 4 Cir. 10/3/94), 644 So.2d 412, 419 ). I find no abuse in discretion in the trial court casting cost to Church Mutual.
For the reasons assigned, I find the trial court did not err in granting the motion for judgment not withstanding the verdict; therefore, the judgment of May 7, 2021 should be affirmed.