Opinion
NUMBER 2013 CA 1970
05-02-2014
JONATHAN LEFEAUX v. ANDREA CRAVEN, SHELTER MUTUAL INSURANCE COMPANY, AND SOUTHERN FARM BUREAU INSURANCE COMPANY
Alan L. Schwartzberg Robert E. Kleinpeter Baton Rouge, LA Counsel for Plaintiff/Appellant Jonathan Lefeaux Craig J. Fontenot Baton Rouge, LA Counsel for Defendants/Appellees Andrea Craven and Shelter Mutual Insurance Company Kirk A. Patrick III Heather A. Cross Holly Q. Sides Baton Rouge, LA Counsel for Defendants/Appellees Louisiana Farm Bureau Casualty Insurance Company and Rig Fabrication and Repair, Inc.
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge, Louisiana
Docket Number C596162
Honorable Todd Hernandez, Judge Presiding
Alan L. Schwartzberg
Robert E. Kleinpeter
Baton Rouge, LA
Counsel for Plaintiff/Appellant
Jonathan Lefeaux
Craig J. Fontenot
Baton Rouge, LA
Counsel for Defendants/Appellees
Andrea Craven and Shelter Mutual
Insurance Company
Kirk A. Patrick III
Heather A. Cross
Holly Q. Sides
Baton Rouge, LA
Counsel for Defendants/Appellees
Louisiana Farm Bureau Casualty
Insurance Company and Rig Fabrication
and Repair, Inc.
BEFORE: WHIPPLE, C.J., WELCH, AND CRAIN, JJ.
WHIPPLE, C.J.
This matter is before us on appeal by plaintiff in a lawsuit arising from a motor-vehicle accident. After a jury trial, the jury awarded plaintiff $560,000.00 for general and special damages. Plaintiff appeals, challenging certain awards. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On or about November 12, 2009, plaintiff, Jonathan Lefeaux, was involved in an automobile accident while, traveling south on Nicholson Drive in Baton Rouge, Louisiana, when a vehicle being operated by defendant, Andrea Craven, attempted to cross Nicholson Drive and struck plaintiff's vehicle. On October 28, 2010, Lefeaux filed a suit for damages resulting from the accident, naming as defendants: Andrea Craven; her insurer, Shelter Mutual Insurance Company; and plaintiff's uninsured/underinsured motorist insurer, Southern Farm Bureau Casualty Insurance Company.
Although plaintiff's petition states that the accident at issue occurred on November 11, 2009, the testimony and evidenced all refer to November 12th as the accident date.
A jury trial was conducted on March 18 through 21, 2013, where the chief issues were medical causation of plaintiff's injuries and the extent of plaintiff's damages.
Prior to trial, plaintiff filed and the trial court granted a motion for partial summary judgment on the issue of liability (duty, breach, and scope of protection).
After hearing and considering the trial testimony, the jury found that the November 12, 2009 automobile accident caused injuries and damages to plaintiff and awarded plaintiff the following damages:
Past Medical Expenses $300,000.00
Future Medical Expenses $125,000.00
Past Lost Wages $85,000.00
Loss of Future Earning Capacity or Future Lost Wages $0.0
Mental and Physical Pain and Suffering $50,000.00
Past, Present and Future Loss of Enjoyment of Life $0.0
A written judgment in accordance with the jury's verdict was signed on April 15, 2013. Plaintiff then filed a motion for judgment notwithstanding the verdict on the issue of damages, which was denied on July 31, 2013.
Plaintiff now appeals, assigning as error: the amounts awarded for past and future medical expenses; the failure to award any amount for future lost wages and loss of earning capacity; and the amount awarded for general damages.
DISCUSSION
At trial, the issues of causation and the extent of plaintiff's injuries were highly contested. As the record demonstrates, determining the cause of plaintiff's injuries was complicated by the fact that plaintiff had significant leg and back problems since he was in middle school; he was involved in a prior automobile accident in January of 2008; he had a one-level spinal fusion in July of 2008; and he had a two-level spinal fusion in July of 2009.
According to plaintiff, following his two-level spinal fusion in July of 2009 and before the instant accident, he was able to go fishing and camping, play with his children, and take daytrips to New Orleans. Three weeks before the subject accident, plaintiff was released to full-time work with no written restrictions, and his supervisors testified that his work performance was back to normal
However, following the November 12, 2009 accident, plaintiff complained of an increase in pain in his low back, bilateral leg pain, hip pain, and left foot pain. Thus, following the subject automobile accident, plaintiff's treatment included a hemilaminectomy; a three-level spinal fusion in September of 2011 (extending his prior fusion from L5 to S1); surgery to implant a spinal stimulator; arthroscopic surgery on his left shoulder; and psychiatric treatment for pain disorder, depression, and post-traumatic stress.
Past and Future Medical Expenses
(Assignments of Error Numbers One and Two)
On appeal, plaintiff first contends that the jury erred in awarding $300,000,00 in past medical expenses, where his summary showing $375,866.30 in past medical expenses was submitted into evidence without objection and defendants did not dispute, through any documents or testimony, the necessity of treatment nor the amount of medical bills incurred. Plaintiff further contends that the jury erred in awarding $125,000.00 for future medical expenses, where an economist calculated the minimum amount of future medical expenses to be $364,262.00, based on the disability cost analysis approved by plaintiff's treating physicians.
Defendants counter that these awards do not constitute an abuse of discretion as plaintiff had a significant medical condition before the instant accident which continued after the accident. Therefore, defendants contend, the jury reasonably found that some of the past and future medical bills were unrelated to the November 12, 2009 accident.
At trial, plaintiff presented the testimony of Dr. Kyle Girod, the orthopedic surgeon who performed plaintiff's two-level spinal fusion in July of 2009, prior to the subject accident, and performed plaintiff's three-level spinal fusion in September of 2011, after the instant accident. Dr. Girod testified that in October of 2009, he released plaintiff back to work and plaintiff's recovery from the two-level fusion was excellent at that point. He further testified that at that time, there were no plans for plaintiff to undergo a future surgery. However, after the November 12, 2009 accident, plaintiff reported having pain throughout his low back, bilateral leg pain, hip pain, and left foot pain, Dr, Girod testified that plaintiff's pain was uncontrollable and he tried various conservative treatment measures, which all failed; thus, he eventually had to perform the three-level spinal fusion at the L5/S1 level. When specifically questioned by plaintiff's counsel. Dr. Girod responded that "more likely than not," plaintiff's increased treatment and subsequent surgery were caused by the November 12, 2009 accident.
On cross-examination, however, Dr. Girod testified that he did not see any changes in plaintiff's scans before and after the subject accident. Furthermore, after the subject accident, he saw no industrial structural damage to the prior two-level spinal fusion that he performed. Dr. Girod further testified that during the three-level spinal fusion, he did notice some "compression," but this condition was due to an "ongoing process." Furthermore, Dr. Girod acknowledged that according to the pre-accident discogram performed on plaintiff by Dr. Isaza in 2008, plaintiff had pain in three discs, which are the discs that he ultimately fused in September of 2011.
In their case-in-chief, defendants introduced the videotaped trial deposition of neurosurgeon, Dr. Scrantz. At defendants' request, Dr. Scrantz performed a medical exam on plaintiff on May 3, 2010. Plaintiff reported to Dr. Scrantz with complaints of low back pain and pain "shooting down" the back side of his right leg. Dr. Scrantz reviewed excerpts of plaintiff's medical records prior to the November 12, 2009 accident, where plaintiff had similar complaints of back and right leg pain. Dr. Scrantz testified that these complaints are consistent with nerve damage at the L5/S1 level. Dr. Srantz also found that Dr. Isaza's 2008 discogram showed that plaintiff was having pain in all three levels in his lower lumbar spine, and that these were the same three levels that Dr. Girod ultimately extended the fusion to in September of 2011. When questioned whether, based on his review of plaintiff's medical records, plaintiff had nerve irritation problems at the L5/S1 level prior to the November 2009 accident, Dr. Scrantz responded, "I think that's fairly clear, yes, sir."
As the record herein demonstrates, the jury apparently concluded that despite plaintiff's claims, the entirety of his treatment was not necessitated by the subject accident. Accordingly, the jury did not award the full amount of medical expenses requested by plaintiff Given the conflicting testimony on medical causation and the medical records reflecting plaintiff's condition and complaints prior to the subject accident, we find that there is a reasonable basis for the jury's conclusion that not all of the treatment and attendant expenses sought herein by plaintiff were attributable to this accident, which conclusion is supported by the record. Accordingly, we are unable to say that the jury abused its discretion in its past and future medical expenses award.
These assignments of error lack merit.
Future Lost Wages and Loss of Earning Capacity
(Assignment of Error Number Three)
Plaintiff next contends that the jury abused its discretion in failing to award him anything for future lost wages and loss of earning capacity.
Plaintiff was approximately thirty years old when the November 12, 2009 accident occurred. He was working as the auto service and repair foreman at Elayn Hunt Correctional Center, earning approximately $43,000.00. His job duties included supervising the prisoners who worked under him, as well as performing a lot of the repairs and maintenance on his own given the prisoners lack of experience. Dr. Girod released plaintiff back to work on December 16, 2009, approximately one month after the subject accident. The work release form stated that plaintiff could carry and push forty pounds, run, and climb steps or ladders to the tops of buildings. Plaintiff testified that while he returned to work, he was in a lot of pain, thus, special accommodations had to be made for him. Plaintiff's supervisors testified that plaintiff appeared to be in significant pain after the November 12, 2009 accident, and that plaintiff was not in noticeable pain prior to this accident. On May 31, 2012, plaintiff submitted a letter of resignation. Plaintiff's supervisor testified that this was sort of a "forced resignation" because plaintiff could no longer perform the job and had depleted his leave time. At the time of trial, plaintiff was doing automotive computer diagnostic work, earning approximately $500.00 a week.
Factors to consider in fixing awards for loss of earning capacity include: age, life expectancy, work life expectancy, appropriate discount rate, the annual wage rate increase, prospects for rehabilitation, probable future earning capacity, loss of earning ability, and the inflation factor or decreasing purchasing power of the applicable currency. Thibodeaux v. USAA Cas. Ins. Co., 93-2238 (La. App. 1st Cir. 11/10/94), 647 So. 2d 351, 361. Awards for lost future income are intrinsically insusceptible of mathematical exactitude, and as such, the trier of fact must exhibit sound discretion in rendering awards that are consistent with the record and do not impose a hardship upon either party. American Cent. Ins. Co. v. Terex Crane, 2003-0279 (La. App. 1st Cir. 11/7/03), 861 So. 2d 228, 234, writ denied, 2004-0327 (La. 4/2/04), 869 So. 2d 881.
At trial, plaintiff offered the expert opinion of Dr. Randall Rice, an economist, who calculated plaintiff's future earning loss to be $1,096,454. However, Dr. Rice acknowledged that he was not in a position to tell the jury whether or not the figures that he calculated were caused by the November 12, 2009 accident
Plaintiff also offered the testimony of Tom Mungall, a vocational rehabilitation specialist. Mr. Mungall testified that plaintiff is restricted to four hours of sitting during the day, four hours of standing during the day, and four hours of walking during the day. He testified that plaintiff cannot go back to his job at the correctional center at this point in time. He described plaintiff as having a tremendous work ethic, but also noted that plaintiff's vocational goal is always changing. Mr. Mungall opined that once plaintiff decides on an occupation goal, and gets retrained, he could possibly make more than what he was making at the correctional center.
Notably, Mr. Mungall had also issued a report regarding plaintiffs condition and employment limitations on July 14, 2009, prior to the subject accident and prior to plaintiff's two-level fusion surgery. This report reflects that plaintiff reported that he was having "extreme difficulty" on the job due to the pain from his injuries, and he was very concerned that he would lose his job due to his injuries and resulting time loss. Mr. Mungall testified that in 2009, he warned plaintiff that this employer may require him to do more than his body could physically do and that plaintiff needed to begin engaging in sedentary to light work. Mr. Mungall acknowledged that in the July 2009 report, he found that plaintiff was "occupationally confused," and stated that plaintiff continued to be "occupationally confused" after the subject accident.
Plaintiff was working as the auto service foreman at Hunt's Correctional Center when this report was rendered.
Defense counsel also called Mr. Mungall's attention to the fact that plaintiff reported to him in July of 2009 that he was having "extreme difficulty" on the job due to pain from his injuries and that this is not consistent with plaintiff's supervisors' testimony that they did not recall any problems with plaintiff before the November 12, 2009 accident.
Although defendants did not present their own vocational rehabilitation expert or economist to directly contradict the opinions of plaintiff's experts, the jury was still free to accept or reject, in whole or in part, the opinions of plaintiff's experts. See Green v. K-Mart Corp., 2003-2495 (La. 5/25/04), 874 So. 2d 838, 843; Shelton v. Wal-Mart Louisiana, LLC, 2009-0871 (La. App. 3rd Cir. 2/3/10), 28 So. 3d 1241, 1247, writ denied, 2010-0823 (La. 6/18/10), 28 So. 3d 325. The jury herein apparently concluded that plaintiff's future lost wages and loss of earning capacity were not a result of the subject accident, and therefore, plaintiff was not entitled to damages for these claims. After carefully considering the record herein, including the conflicting evidence regarding plaintiff's work difficulties prior to the accident at issue, we are constrained to find that the jury's conclusion is supported by the evidence of record herein, Thus, we are unable to say the jury abused its discretion in refusing to award plaintiff damages for loss of future income and loss of earning capacity.
Accordingly, this assignment of error also lacks merit.
Genera] Damages
(Assignment of Error Number Four)
In his last assignment of error, plaintiff contends that the jury abused its discretion in awarding him $50,000.00 in general damages. Plaintiff submits that $300,000.00 is the lowest reasonable award for his past and future loss of enjoyment of life, permanent physical restrictions, and physical and mental pain and suffering.
In Duncan v. Kansas City Southern Railway Co., 2000-0066 (La. 10/30/00), 773 So. 2d 670, 682-683, the Louisiana Supreme Court set forth the standard for appellate review of general damage awards as follows:
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." Vast discretion is accorded the trier of fact in fixing general damage awards. This vast discretion is such that an appellate court should rarely disturb an award of general damages. Thus, the role of the appellate court in reviewing general damage awards 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.With these principles in mind, we review the evidence of record and determine if the jury's general damage award constitutes an abuse of discretion.
* * *
The initial inquiry, in reviewing an award of general damages, is whether the trier of fact abused its discretion in assessing the amount of damages. Only after a determination that the trier of fact has abused its "much discretion" is a resort to prior awards appropriate and then only for the purpose of determining the highest or lowest point which is reasonably within that discretion, (Citations omitted.)
In support of his claim that the general damage award of $50,000.00 is woefully inadequate, plaintiff cites Wainwright v. Fontenot, 2000-0492 (La. 10/17/00), 774 So. 2d 70, 74-77; Green v. K-Mart Corp., 2003-2495 (La. 5/25/04), 874 So. 2d 838, 844; and Stewart v. Haley, 2011-0584 (La. App. 1st Cir. 11/9/11), 2011 WL 5415175 (unpublished opinion), In each of these cases, error was found, in part, when the jury concluded that the defendant was legally at fault for the plaintiff's injuries and liable to him for his medical expenses incurred, yet declined to make any award at all for general damages. We find that this line of jurisprudence is distinguishable, as the jury herein awarded plaintiff $50,000.00 in general damages.
In sum, this jurisprudence directs that where special damages have been incurred (such as for precautionary medical examination(s)) without attendant physical pain and suffering, a trier-of-fact may reasonably find that general damages are not warranted; however, a trier of fact abuses its discretion in failing to award general damages when it finds that a plaintiff has suffered injuries causally related to the accident that required medical attention. Stewart, 2011 WL 5415175 at * 5.
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Pretermitting what this court would have awarded as the trier of fact, after considering the trial testimony and extensive evidence that was introduced into the record, we again are unable to say that the jury abused the vast discretion reserved to it in making its general damage award. As such, we need not look to prior damage awards. Only after finding that an award constitutes an abuse of discretion is a resort to prior awards appropriate and then only for the purpose of determining the highest or lowest point which is reasonably within that discretion. Youn v. Maritime Overseas Corporation, 623 So. 2d 1257, 1260 (La. 1993), cert. denied. 510 U.S. 1114, 114 S. Ct. 1059, 127 L.Ed.2d 379 (1994) (citing Coco v. Winston Industries, Inc., 341 So. 2d 332 (La. 1976)).
Thus, this assignment of error also lacks merit.
CONCLUSION
For the above and foregoing reasons, the April 15, 2013 judgment of the trial court is hereby affirmed. Costs of this appeal are assessed to plaintiff, Jonathan Lefeaux.
AFFIRMED. JONATHAN LEFEAUX
VERSUS
ANDREA CRAVEN, SHELTER
MUTUAL INSURANCE COMPANY
AND SOUTHERN FARM BUREAU
INSURANCE COMPANY
NO. 2013 CA 1970
WELCH, J., concurring in part, dissenting in part.
While I agree with the result ultimately reached by the majority on the issues of past and future medical expenses and future lost wages and loss of earning capacity, the jury's award of $50,000 for general damages was an abuse of discretion and that award should be increased to at least $200,000.
Specifically, with regard to loss of enjoyment of life, the evidence at trial established that before the accident, Mr. Lefeaux was back to normal, took fishing and other trips and was working full-time. The evidence further established that after the accident, Mr. Lefeaux's mobility was severely impaired, that he frequently exhibited signs of pain, and that he lost his career as a mechanic—a job that he loved. For Mr. Lefeaux's loss of enjoyment of life, the jury awarded $0. Considering the jury's finding that Mr. Lefeaux sustained injuries that necessitated four surgical procedures and future treatment, as noted by the majority, the jury's determination that Mr. Lefeaux suffered no detrimental change in his quality of life as a result of those injuries is inconsistent and was an abuse of its discretion. Therefore, the plaintiff's award for loss of enjoyment of life should be increased from $0 to at least $25,000.
With regard to pain and suffering, the evidence established that since the accident, Mr. Lefeaux lost his career because he could not longer perform the job of a mechanic, that he has permanent physical restrictions, that Mr. Lefeaux will require orthopedic treatment for life, that he has had four surgeries, that he has suffered from post-traumatic stress, depressive and pain disorders, that he takes psychiatric medications, and that he will need counseling and medication for the rest of his life. For Mr. Lefeaux's pain and suffering, the jury awarded him $50,000. Given the evidence, this award was an abuse of the jury's discretion and the award should be increased to at least $175,000.
For these reasons, I respectfully concur in part and dissent in part with the majority in this case.