Opinion
NUMBER 2013 CA 0054
2013-09-13
EDDIE HOFFMAN v. 21ST CENTURY NORTH AMERICA INSURANCE COMPANY AND CAROLYN ELZY
Aaron J. Lawler Spencer H. Calahan David M. Lefeve Baton Rouge, LA Plaintiff/Appellant Eddie Hoffman Richard D. Roniger, II New Orleans, LA Counsel for Defendants/Appellees 21st Century North America Insurance Company and Carolyn Elzy
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge, Louisiana
Docket Number 604,592
Honorable R. Michael Caldwell, Judge Presiding
Aaron J. Lawler
Spencer H. Calahan
David M. Lefeve
Baton Rouge, LA
Plaintiff/Appellant
Eddie Hoffman
Richard D. Roniger, II
New Orleans, LA
Counsel for Defendants/Appellees
21st Century North America
Insurance Company and Carolyn
Elzy
BEFORE: WHIPPLE, C.J., WELCH AND CRAIN, JJ.
WHIPPLE, C.J.
In this personal injury case, the plaintiff challenges the general and special damages awarded by the district court following a bench trial. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
The accident at issue occurred on October 7, 2010, when a 2000 Dodge van driven by plaintiff Eddie Hoffman was rear-ended by a vehicle driven by defendant Carolyn Elzy, at or near the intersection of Old Hammond Highway and Sharp Road, in Baton Rouge, Louisiana. Ms. Elzy's vehicle was insured by 21st Century North America Insurance Company ("Century") at the time of the accident.
Mr. Hoffman filed the instant suit against Ms. Elzy and Century, seeking recovery for damages allegedly sustained as a result of the automobile accident. A bench trial was conducted on September 25, 2012 on the issue of liability and damages. The only witnesses called to testify at trial were Mr. Hoffman and Ms. Elzy. The only evidence introduced was: (1) Mr. Hoffman's medical records; (2) the deposition transcript of the responding law enforcement officer; (3) photographs of the vehicles involved in the accident; and (4) Century's insurance policy. Thus, no expert medical testimony was introduced. At the conclusion of the trial, the trial judge ruled in favor of Mr. Hoffman on the issue of liability, finding Ms. Elzy one-hundred percent (100%) at fault in causing the accident. The trial judge then awarded Mr. Hoffman $4,500.00 in general damages and $2,478.00 for special medical expenses, for a total award of $6,978.00.
Mr. Hoffman now appeals, contending that the general and special damages awarded by the court are inadequate. Specifically, Mr. Hoffman asserts the following two assignments of error:
1. The trial court erred in awarding only $4,500.00 in general damages, as plaintiff treated for over five months, had a recommendation for three steroid injections, and MRIs revealed bulges at C3-4, C4-5, C5-6, C7-T1, and L3-4, L4-5 and L5-S1.
2. The trial court erred in awarding only $2,478.00 for past medical specials where plaintiff presented evidence of $4,628.00 in past medical specials. Furthermore, the trial court erred in failing to award $18,929.00 in future medical expenses for a series of three epidural steroid injections and a back brace.
As more thoroughly discussed below, we find no merit to either assignment of error.
GENERAL DAMAGE AWARD
(Assignment of Error No. 1)
In his first assignment of error, Mr. Hoffman argues that the general damage award in the amount of $4,500.00 is abusively low in light of the fact that he treated for five months, his MRIs revealed lumbar and cervical disc bulges, and epidural steroid injections were recommended for his severe pain.
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." Duncan v. Kansas City Southern Railway Co., 00-0066 (La. 10/30/00), 773 So. 2d 670, 682 (quoting Keeth v. Department of Public Safety & Transportation, 618 So. 2d 1154, 1160 (La. App. 2nd Cir. 1993)). The trier of fact has much discretion in the assessment of damages. LSA-C.C. art. 2324.1. In reviewing an award of general damages, this court is limited to a review for abuse of the trier of fact's vast discretion. Because of the great discretion vested in the trier of fact, an award of general damages should rarely be disturbed on appeal. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that an appellate court should reduce or increase the award. Smith v. Goetzman, 97-0968 (La. App. 1st Cir. 9/25/98), 720 So. 2d 39, 47.
In awarding Mr. Hoffman $4,500.00 for general damages, the trial judge commented that he found that Mr. Hoffman's neck and back issues, as indicated on the MRIs, pre-existed this accident, and there was little evidence of aggravation of these pre-existing conditions. We find that the record amply supports this conclusion.
Prior to the subject October 7, 2010 accident, Mr. Hoffman was in two automobile accidents. Following those accidents, he sought medical treatment for complaints similar to those raised herein. Specifically, in June of 2008, Mr. Hoffman was in a rear-end accident for which he sought medical treatment for complaints of back, neck, knee pain and headaches.
Mr. Hoffman was in another automobile accident on December 30, 2009. The medical records from the December 30, 2009 accident indicate that Mr. Hoffman had a large hematoma or area of swelling at the C7-T1 level, the mass of which was the size of an egg, due to severe hyperflexion at the base of his neck upon impact of the vehicles. The medical records indicate that Mr. Hoffman was determined to be totally incapacitated from December 30, 2009 through January 8, 2010 and beyond. Although there is no evidence in the record that Mr. Hoffman sought additional treatment for the "severe neck and spinal cord injury" sustained in the December 30, 2009 accident, the medical records from the subject October 7, 2010 accident indicate that Mr. Hoffman's disc bulges were most pronounced at the C6-C7 level, the same area where he had a large mass following the December 30, 2009 accident. Notably, at the trial herein, there was little discussion of these prior accidents and injuries. Mr. Hoffman did testify that his injuries from the prior accidents were resolved at the time of the subject accident. However, there was no other medical or witness testimony offered to support this testimony. As such, we cannot say that the trial judge erred in finding that Mr. Hoffman's injuries pre-existed the subject accident, and in finding that there was little evidence of aggravation of these pre-existing conditions.
Mr. Hoffman next argues that the general damage award was inadequate because: (1) he treated for five months for injuries sustained in the accident, yet was awarded only $4,500.00, which amounts to an award of only $900.00 per month, and (2) his pain was severe and persisted long enough that epidural steroid injections were recommended.
The duration of a plaintiff's injury symptoms and the duration of treatment are relevant factors for a trier of fact to consider in awarding general damages. However, they are not the only relevant factors; the nature and relative severity and extent of injuries are qualitative factors that must also be considered. This court has previously disapproved of the use of a mathematical formula, or simple multiplication, to arrive at an appropriate award of general damages, as such a "shortcut" approach presupposes uniformity of symptoms over the course of time and fails to take account of each victim's unique and subjective injuries and course of recovery. Gillmer v. Parish Sterling Stuckey, 2009-0901 (La. App. 1st Cir. 12/23/09), 30 So. 3d 782, 788.
After the subject accident, Mr. Hoffman treated with a chiropractor for one month and an orthopedist once a month for six months. Mr. Hoffman testified that he stopped treating with the chiropractor because he "felt better" and he stopped treating with the orthopedist because he "was recovered."
In addition to considering the duration of Mr. Hoffman's treatment, we also note that his treatment consisted solely of chiropractic care and pain medication. Moreover, while the orthopedist recommended physical therapy, a back brace, and epidural steroid injections, Mr. Hoffman did not follow through with any of these recommendations. Under these facts, we find no error in the trial court's conclusion, which is reasonable on the record before us, that $4,500.00 was an appropriate damage award for five months of treatment.
This assignment lacks merit.
SPECIAL DAMAGE AWARD
(Assignment of Error No. 2)
In his second assignment of error, Mr. Hoffman argues that the trial court erred in reducing his past medical expenses and in failing to award damages for future medical expenses.
With regard to his past medical expenses, Mr. Hoffman introduced medical bills totaling $4,528.00; however, the trial judge awarded only $2,478.00 in past medicals. The trial judge's calculation of past medical expenses differed from Mr. Hoffman's claim because the trial judge used the discounted price accepted by the MRI imaging center in calculating past medical expenses, not the amount originally charged by the imaging center. Mr. Hoffman introduced a bill from the MRT imaging center that reflected a balance due of $3,000.00. In contrast, defendants introduced a bill from the same imaging center that reflected a $950.00 payment and a bill "adjust" in the amount of $2,050.00. The trial judge commented that the bill was reduced because the imaging center had an arrangement with Mr. Hoffman's attorney. On appeal, Mr. Hoffman argues that his past medical expenses should be calculated using the full amount of the imaging center bill, not the reduced or adjusted bill amount.
Mr. Hoffman argues that an attorney-negotiated discount is subject to the collateral source rule. Under the collateral source rule, a tortfeasor may not benefit, and an injured plaintiff's tort recovery may not be reduced, because of monies received by the plaintiff from sources independent of the torfeasor's procuration or contribution. Bozeman v. State, 2003-1016 (La. 7/2/04), 879 So. 2d 692, 693.
In Griffin v. Louisiana Sheriff's Auto Risk Association, 99-2944 (La. App. 1st Cir. 6/22/01), 802 So. 2d 691, writ denied, 01-2117 (La. 11/9/01), 801 So. 2d 376, this court found that the collateral source applied to a contractual write-off procured by the plaintiff's medical insurer, and the plaintiff was entitled to the full amount of the medical bill prior to any discount given on account of plaintiff having health insurance. In so concluding, this court noted that the plaintiff's patrimony was continually diminished to the extent that she had to pay premiums in order to secure the benefit of the insurance, and thus the write-off amount procured by the payments of premiums would not result in a windfall to the plaintiff. Griffin, 802 So. 2d at 714-715.
In Bozeman, 879 So. 2d at 703-704, the Louisiana Supreme Court agreed with the reasoning of this court in Griffin. In Bozeman, the Court addressed whether the collateral source rule applied to amounts written off by health care providers pursuant to the requirements of the Medicaid program. The Court provided an in-depth discussion of the history of the collateral source rule and the differing application of the rule by various states. The opinion discussed three different applications of the rule. The Court rejected the "reasonable value of services" approach, which awards the plaintiff the entire amount of medical expenses that were billed to the plaintiff, including the written-off amount. The Court further rejected the "actual amounts paid" approach, which denies the plaintiff the ability to recover the write-off amounts because an award to the plaintiff of the written-off amount would result in a windfall for the plaintiff. Rather, the Court adopted the "benefit of the bargain" approach utilized by this court in Griffin, where plaintiffs are entitled to the full value of their medical expenses, including the write-off amount, where the plaintiff has paid some consideration for the benefit of the write-off amounts. Bozeman, 879 So. 2d at 701-704. Ultimately, the Court concluded that Medicaid recipients are unable to collect the Medicaid "write-off amounts as damages because no consideration is provided for the Medicaid benefit. However, the Court further specified that "in those instances, where plaintiff's patrimony has been diminished in some way in order to obtain the collateral source benefits, then plaintiff is entitled to the benefit of the bargain, and may recover the full value of his medical services, including the 'write-off amount" Bozeman, 879 So. 2d at 705-706.
Bozeman instructs that where the plaintiff pays no enrollment fee, has no wages deducted, and otherwise provides no consideration for the collateral source he receives, the collateral source rule does not apply. Bozeman, 879 So. 2d at 705; see also Bellard v. American Central Ins. Co., 2007-1335, 2007-1399 (La. 4/18/08), 980 So. 2d 654, 670. In the instant matter, there is no evidence that Mr. Hoffman paid an enrollment fee, had wages deducted, or provided any consideration for the MRI imaging center to reduce his bill. Rather, Mr. Hoffman testified that he did not know if the bill has been paid, and to his knowledge he did not give up anything or pay anything to get the MRI bill reduced. Accordingly, we cannot say that the trial court erred in finding that the collateral source rule does not apply. Under these specific facts, we find Mr. Hoffman's past medical expenses were correctly calculated using the discounted amount of the MRI imaging center bill.
Despite Mr. Hoffman's urging, we find that this case is factually distinguishable from those cases where a plaintiff was able to recover the value of medical services gratuitously rendered. See Tanner v. Fireman's Fund Ins. Co., 589 So. 2d 507. 515-516 (La. App. 1st Cir 1991), writs denied, 590 So. 2d 1207 (La. 1992).
Last, in regard to his claim for future medical expenses, Mr. Hoffman argues that he should have been awarded future medical expenses for steroid injections and a back brace. The only evidence introduced regarding Mr. Hoffman's need for future medical treatment was a March 10, 2011 report from his treating orthopedist stating, "At this time, I want to put him into an LSO brace to see if that helps his back pain. We are also requesting cervical epidural steroid injections. We await approval for that." The orthopedist did not testify at the trial, and his deposition, if one was taken, was not introduced as evidence.
A plaintiff must show the probability of future medical expenses with supporting medical testimony and estimations of their probable cost. Importantly, future medical expenses must be established with some degree of certainty. The proper standard for determining whether a plaintiff is entitled to future medical expenses is proof by a preponderance of the evidence that the future medical expense will be medically necessary. Menard v. Lafayette Ins. Co., 09-1869 (La. 3/16/2010), 31 So. 3d 996, 1006.
Herein, we find that the orthopedist's report alone, written a year and a half prior to trial, and discussing possible treatment, was insufficient evidence to establish, with any degree of certainty, Mr. Hoffman's claim for future medical expenses. Moreover, while Mr. Hoffman testified at trial that he was now going to have steroid injections, this testimony directly contradicts his testimony that he stopped treating with the orthopedist because he "was recovered." Accordingly, the trial court did not err in dismissing Mr. Hoffman's claim for future medical expenses.
These arguments also lack merit.
CONCLUSION
For the foregoing reasons, we affirm the October 12, 2012 judgment of the trial court. Costs of this appeal are assessed to plaintiff, Eddie Hoffman.
AFFIRMED.