Monica D. Duran v. Allmerica Financial Benefit Insurance Company, the Mer Rouge State Bank, Louisiana Farm Bureau Mutual Insurance Company and Gerald Farrar

Judgment rendered April 10, 2024.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 55,599-CA
No. 55,600-CA
(Consolidated Cases)

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

MONICA D. DURAN Plaintiff-Appellee

versus

ALLMERICA FINANCIAL Defendants-Appellants
BENEFIT INSURANCE
COMPANY, THE MER ROUGE
STATE BANK, LOUISIANA
FARM BUREAU MUTUAL
INSURANCE COMPANY AND
GERALD FARRAR

*****

Appealed from the
Fourth Judicial District Court for the
Parish of Morehouse, Louisiana
Trial Court No. 2017-314

Honorable Alvin R. Sharp, Judge

*****

PHELPS DUNBAR, LLP Counsel for Appellant,
By: Kim M. Boyle Gerald Farrar
Jeremy T. Grabill

LAW OFFICES OF MASON L. OSWALT
By: Mason L. Oswalt

LUNN IRION LAW FIRM, LLC
By: Gerald M. Johnson, Jr.

SEABAUGH & SEPULVADO, LLC Counsel for Appellant,
By: Alan T. Seabaugh Allmerica Financial
Michael C. Melerine Benefit Insurance
Paul L. Wood Company

NELSON, ZENTNER, SARTOR
& SNELLINGS
By: David H. Nelson
Fred W. Sartor, Jr.

THE DOWNS LAW FIRM APC Counsel for Appellee
By: E. Ross Downs, Jr.
E. Ross Downs, III
Hayden S. Downs
Emily W. Downs

*****

Before STONE, THOMPSON, and HUNTER, JJ.

THOMPSON, J.

Gerald Farrar’s blood alcohol content was four times the legal limit

when he hit the side rail of a bridge and the right front wheel of his vehicle

was torn off. The wheel came to rest in the roadway and caused a second

accident when a vehicle came upon it, struck it, and then slammed into a

guardrail, seriously injuring the driver. During the five-week trial that

followed, the jury was presented with information regarding Farrar’s history

of drinking and driving and his attempt to leave the scene of the accident in

his severely damaged vehicle. The evidence at trial also revealed that he

failed a field sobriety test and refused a breathalyzer. He consistently denied

consuming any or very much alcohol the night of the accident, until he was

finally confronted at trial with the evidence of his blood alcohol content

from a blood draw taken at the hospital the night of the accident. The jury

awarded the injured driver $843,155 in past, present, and future medical

expenses and damages for her injuries, and, finding Farrar’s wanton and

reckless conduct to be the cause of her injuries, imposed exemplary damages

against him in the amount of $3,000,000 (a ratio of approximately 3.56 to 1

to the jury award). Farrar now appeals the exemplary damage award,

arguing it is grossly excessive, in amount and as a ratio to the special and

general damages award, and, as such, constitutes a violation of the Due

Process Clause. Farrar asks this court to reduce or eliminate the exemplary

damage award. Finding Farrar’s conduct to be obscenely reprehensible and

considering the substantial damage award by the jury, we affirm the

exemplary damage assessment by the jury.

FACTS AND PROCEDURAL HISTORY

On the evening of October 26, 2016, Monica Duran (“Duran”), was

driving on U.S. Highway 425 in Morehouse, Parish, Louisiana, when she

suddenly came upon a dislodged wheel laying in her lane of travel. Shortly

beforehand, that wheel had been torn from the vehicle driven by Gerald

Farrar (“Farrar”). U.S. 425 is a two-way roadway with a posted speed limit

of 55 miles per hour. Without adequate time to avoid the impact, her vehicle

hit the wheel and was forced into the guardrail, then bounced off it, and

came to rest. Duran was injured; her passenger was not.

Duran called 911 for assistance, and deputies from the Morehouse

Parish Sheriff’s Office and a Louisiana State Trooper responded to the scene

of the accident. Ambulances eventually transported both Duran and Farrar

to the emergency room of St. Francis Medical Center in Monroe, Louisiana.

Duran complained of low back pain and was treated for a concussion before

being discharged. She was subsequently treated over several months by Dr.

Allen Spires (a general practitioner), Dr. Elijah Globke (a chiropractor), and

Dr. David Weir (a neurologist) for her low back pain and neurological

symptoms. Farrar received treatment for a broken ankle, which required

surgery.

Prior to Duran encountering the wheel in the roadway, Farrar had

been driving ahead of and in the same direction as her, when he struck the

guardrail with such force that the entire front right wheel of his Chevrolet

Silverado was torn off. After making impact with the guardrail, Farrar

apparently attempted to continue traveling on the remaining three wheels

and eventually came to a rest approximately 800 feet farther up the road.

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In July of 2017, Duran filed suit for her juries, naming Farrar, his

employer, Mer Rouge State Bank (“the Bank”), which owned the Chevrolet

Silverado Farrar was driving, and its liability insurer, Allmerica Financial

Benefit Insurance Company (“Allmerica”). Prior to trial, the Bank was

dismissed from the litigation when the trial court granted its motion for

summary judgment. In March of 2022, the matter proceeded to a five-week

jury trial. At the conclusion of the trial, the jury returned a verdict in favor

of Duran in the amount of $843,155, for the following itemized damages:

A) Past Medical Expenses $ 80,000

B) Future Medical Expenses $ 82,556

C) Past Lost Earnings $ 478

D) Future Loss of Earnings
and/or Earning Capacity $230,121

E) Past Physical Pain and Suffering $ 50,000

F) Future Physical Pain and Suffering $250,000

G) Past Mental Suffering $ 25,000

H) Future Mental Suffering $ 50,000

I) Past Loss of Enjoyment of Life $ 50,000

J) Future loss of Enjoyment of Life $ 25,000

TOTAL $843,155

The defendants have not appealed the reasonableness of the above

awards. What is in dispute, however, is the award by the jury of added

exemplary damages in the amount of $3,000,000, based on Farrar’s

intoxication at the time of the accident being the cause of Duran’s injuries,

as allowed by La. C.C. Art. 2315.4. The jury verdict form asked the

following:

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Do you find, more probably than not, that Monica Duran’s
injuries were caused by Gerald Farrar’s wanton or reckless
disregard for the rights and safety of others, by Farrar’s driving
while intoxicated at the time of the accident?

The jurors indicated “Yes” in response to that inquiry. Next, the jurors

wrote in “$3,000,000” when asked: “Please state an amount in dollars of

exemplary damages that you assess against Gerald Farrar, if any.”

As Farrar is appealing only the exemplary damage award, the focus of

our review will be the testimony and evidence presented to the jury for its

consideration in determining if exemplary damages were warranted, and if

awarded, whether the award was reasonable under the circumstances.

The Testimony and Evidence Adduced at Trial

During trial, there were numerous witnesses testifying about the cause

of the accident, the injuries sustained, and treatment provided and

recommended for Duran. Sergeant Daniel Jones, a deputy at the Sheriff’s

Office in Morehouse Parish, testified he was one of the first deputies to

respond to the scene of the October 26, 2016 accident (hereinafter “the

Accident”). Sgt. Jones testified he observed Farrar’s white Chevrolet

Silverado on the side of the roadway and a small Toyota blocking the bridge.

Jones did not personally contact anyone from the Silverado at the scene. He

testified that based on his investigation of the accident scene, Farrar

attempted to continue driving the Silverado on three wheels for several

hundred feet after he collided with the right-side guard rail.

Patrick Morris,1 a Louisiana State Police Trooper, also responded to

the accident scene. Trooper Morris testified when he arrived on the scene

1
At the time of trial Trooper Morris was patrol deputy in the Sheriff’s Office in
Richland Parish.

4

that he started taking photos and spoke to both drivers. He observed that

Farrar’s vehicle had struck the guardrail of a small bridge going over a ditch

and that the front right wheel and tire was in the roadway north of the

bridge. Trooper Morris testified that Farrar’s vehicle travelled

approximately 700-800 feet on three wheels after the impact with the guard

rail and that he did not have any doubt that Farrar was hitting the gas while

his vehicle only had three wheels. When Trooper Morris spoke to Farrar

while at the scene as he was being treated in the ambulance for an injury to

his leg, he could smell the odor of alcohol on Farrar’s breath. Farrar denied

being impaired, admitted only to having a couple of drinks before the

accident, and then refused Trooper Morris’ request he submit to a

breathalyzer test. Trooper Morris did, however, conduct a field sobriety test

– the horizontal gauge nystagmus test – which he testified indicated Farrar

was impaired at the time of the accident. Trooper Morris placed Farrar

under arrest at that point and issued him a summons for DWI; Farrar was

then transported to the hospital for medical treatment.

Dr. Christopher John Najberg, a board-certified emergency physician

at the St. Francis Downtown Campus, treated Duran in the emergency room

after her accident. Though he did not personally treat Farrar in the

emergency room, Dr. Najberg did testify regarding the alcohol testing

procedure in the St. Francis emergency room where Farrar was treated.

Farrar’s medical records from the emergency room indicate that a blood

draw was performed on him due to a nurse’s belief that Farrar was

intoxicated; the medical record notes that Farrar’s speech was profane,

5

rambling, and slurred. Dr. Najberg testified that Farrar’s BAC of 0.346%2

indicates a very high degree of intoxication, and that “[F]or an alcohol level

of 0.346 you shouldn’t be operating a golf cart even as a video game. That

is extremely intoxicated.” Dr. Najberg also testified that Farrar having a

long-time drinking problem, or being a chronic drinker, would explain how

he could remain conscious at such a high blood alcohol level, and that no

one can safely operate machinery with a BAC of 0.346%.

James Steven Cox, a board member of Mer Rouge State Bank,

testified at trial regarding Farrar’s history of possibly abusing alcohol and

driving. The record shows that the Bank provided Farrar the vehicle he was

driving the night of the Accident. Cox testified that he attended an informal

meeting of board members regarding a prior automobile accident of Farrar in

2015 but that he was not aware of Farrar’s BAC of 0.346% following the

Accident with Duran. Cox confirmed that Farrar continued to earn bonuses

because of his performance as the bank president after causing the Accident,

but he did not know whether Farrar attended rehab for alcohol abuse after

the Accident.

Alex Rankin, also a board member of the Bank, testified at trial.

Rankin testified that during a prior board meeting he smelled something that

2
La. R.S. 14:98 provides, in pertinent part:
A. (1) The crime of operating a vehicle while intoxicated is the operating
of any motor vehicle, aircraft, watercraft, vessel, or other means of
conveyance when any of the following conditions exist:
(a) The operator is under the influence of alcoholic beverages.
(b) The operator's blood alcohol concentration is 0.08 percent or
more by weight based on grams of alcohol per one hundred cubic
centimeters of blood.

6

he thought could be alcohol on Farrar’s person. Rankin testified that this

board meeting took place sometime in 2015 or 2016, prior to the Accident.

Nancy Lowery, a bank employee at the Bank from 2001 to 2014,

testified that in her position as a loan processor, she worked with Farrar

processing loans he originated. Lowery testified that she believed Farrar

was an alcoholic, based on her own personal experience of her father being

an alcoholic. She believed Farrar was under the influence of alcohol while

at work. She testified that Farrar frequently had a red face and slurred

speech, and that board members regularly attended board meetings with

Farrar when he was visibly drunk. Lowery testified that she did not speak to

her superiors at the bank about her belief that Farrar was an alcoholic.

Cindy Turner, Farrar’s sister, also testified at trial. Like Farrar,

Turner was employed by the Bank, and she has been a bank teller there since

2014. Turner testified that Farrar’s wife, Holly, had approached her on

multiple occasions prior to the Accident with concerns that Farrar was an

alcoholic. She denied her brother had a problem with alcohol. Turner

testified, with a limited recollection of conversations she had with the

superiors at the bank and her sister-in-law, that she did not ever personally

see her brother drinking to excess or driving under the influence of alcohol.

Turner testified that on the evening of the Accident, she spoke to Farrar on

the phone for approximately 15-20 minutes, and that Farrar did not seem

drunk to her and was not slurring his words. Turner confirmed she was

aware that Farrar received a DWI following the Accident, “because of the

things that were released in the news,” but she denied she personally knew

that her brother was drunk on the night of the accident. Turner testified that

7

she went to the hospital to see Farrar the night of the Accident, but denied

observing him use profane or slurred speech to the emergency room

personnel, despite contemporaneous medical records reflecting such conduct

by Farrar.

The refusal or delay by Farrar in the course of this litigation in

admitting and disclosing his level of intoxication at the time of the accident

would understandably be a factor for the jury in arriving at its exemplary

damage award. To that point, Turner confirmed at trial that her brother told

Trooper Morris and hospital personnel that he had one drink earlier in the

day, and she denied smelling alcohol on him. The results of the blood

alcohol test at the hospital, and that of medical personnel familiar with the

effects of alcohol in the system, revealed a significantly different reality

from that consistently depicted by the testimony of Turner and Farrar

regarding Farrar’s condition leading up to and immediately following the

Accident.

Kelley Adamson, a traffic accident reconstructionist and licensed

professional civil engineer in the states of Texas, Louisiana, and Mississippi,

testified that he had been doing accident reconstruction for 39 years and

estimated he had performed approximately 7000 traffic accident

reconstructions in his career. Adamson testified regarding his investigation

and the contents of a report he prepared, regarding Farrar’s accident scene.

Adamson’s report provides the following summary of his opinions:

1. Based upon my review and analysis, Mr. Farrar (driver of
the 2015 Chevrolet Silverado) was traveling northbound on
US 425 in a left curve approaching a bridge section. Mr.
Farrar failed to maintain his vehicle in the travel lane,
traveled to the right and struck the guardrail. The impact
caused the right front wheel to be torn off the vehicle. The

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wheel came to rest in the northbound lane of US 425. Mr.
Farrar’s vehicle traveled over 800 feet further to the north,
traveling on three wheels, before coming to rest. To travel
this distance with the disable vehicle, the driver would have
to apply power.

2. Ms. Monica Duran (driver of the 2000 Toyota Tacoma) was
traveling northbound on US 425. Her vehicle struck the
Silverado’s wheel which caused her vehicle to veer to the
left and strike the left side guardrail. There is no indication
that Ms. Duran was exceeding the posted speed limit.

3. From my training and education in the field of human
factors, Ms. Duran would not have been able to identify the
black tire/wheel in the roadway until too late to avoid the
collision.

Adamson concluded that Farrar’s failure to control his vehicle was

consistent with being under the influence of alcohol, and that his

investigation established that Farrar’s tire did not come off or begin to

loosen prior to him hitting the guard rail.

Also testifying was Dr. William J. George, a pharmacologist,

toxicologist, and professor at Tulane Medical School in New Orleans,

Louisiana, who has 50 years of experience in his field and has been

recognized as an expert in both pharmacology and toxicology in courts

throughout Louisiana and other states. Dr. George testified that he had

reviewed Farrar’s medical records from St. Francis that showed a BAC of

0.346% in reaching his expert opinion. Dr. George noted that Farrar was

approximately four times the legal limit of .08% BAC at the time of his

accident. Dr. George testified that at this blood alcohol level, an individual

would be in a “stupor stage” of intoxication and experience extreme

confusion and loss of motor function, blurred or double vision, and difficulty

staying awake. Dr. George testified that to achieve the 0.346% BAC shown

in Farrar’s certified emergency room records, Farrar had to have consumed

9

at least 12-15 beers, 12-15 shots of bourbon, or 12-15 glasses of wine at a

minimum. Dr. George concluded, in his expert opinion, that Farrar’s blood

alcohol level was clearly a significant factor in his operation of his motor

vehicle and his collision with the right guard rail.

The defendant, Gerald Farrar, testified at the trial. On cross-

examination, he admitted that prior to the Accident he would regularly drink

and drive in his bank-owned vehicle. He repeatedly denied at trial that he

was an alcoholic, but explained that at the time of his accident he had a lot

going on in his personal life.3 The record shows that prior to the Accident,

his physician, Dr. Allen Spires, prescribed him Lorazepam 2 mg per day,

which he took for anxiety. He admitted that he drank too much on the day

and night of the Accident, and that he refused the breathalyzer test from

Trooper Morris at the scene because he was “scared.” Farrar testified that he

was not aware, as testified to by his wife, that she had ever called his

coworkers and fellow board members at the bank expressing concerns about

his drinking.

Farrar acknowledged a prior accident in his bank-owned vehicle one

afternoon in April of 2015, in which the vehicle was totaled when he crashed

into a tree. He told the responding officer at the scene that he swerved to

3
Farrar’s testified a complicated family situation contributed to his separation
from his wife, Holly Farrar, three days before the Accident. Farrar explained his 16-year-
old daughter had become pregnant during her sophomore year in high school, and she
had given birth to his first grandchild on October 26, 2015. What followed, he testified,
was contested litigation regarding the custody and visitation with the child. The day of
the Accident, was the child’s first birthday, which was to begin a visitation schedule
which included overnight stays by the child with his biological father. Farrar attended his
grandson’s first birthday party being hosted at Farrar and his wife’s marital home, and
that he began drinking between 12:00 PM and 1:00 PM that day. At around 6:45 PM
when the accident occurred, Farrar was driving to stay at this friend’s house in Rayville,
Louisiana, with plans to leave the next morning to go out of state on a hunting trip.

10

avoid a wild hog in the road and struck a tree, and that OnStar notified local

authorities after the collision. He acknowledged he suffered a gash on his

head, that an ambulance did come to the scene, and a paramedic treated him

there. Farrar declined a ride with the ambulance to go to the emergency

room. The record shows that despite a request from Duran’s counsel, no

medical records from an ambulance responding to the 2015 accident were

ever produced. Farrar did not go to a hospital, but went to the office of his

friend, Dr. Allen Spires, to receive stitches to his head. Farrar denied that

alcohol was a factor in that accident.

Regarding the Accident, the record shows that throughout litigation

with Duran, Farrar steadfastly maintained that he had consumed one or only

a few drinks. Specifically, in November of 2017, after suit had been filed,

Farrar responded to written interrogatories claiming that he did not consume

any alcohol prior to the Accident. During his deposition in December of

2017, Farrar testified that he only consumed two ounces of alcohol on the

day of the Accident. Finally, at trial, and only after his medical records

showing his BAC of 0.346% hours after the accident were presented to the

jury and introduced in the record, did Farrar finally admit that he did

consume more than one alcoholic drink on the date of the Accident. He

testified that he drank bourbon and waters, but he did not know the number

of drinks he consumed. He testified that he had 20-40 miles to travel on the

two-lane road to his hunting camp, after consuming alcohol at his

grandson’s party that day. Duran’s counsel asked:

Q: And you didn’t limit yourself because you have no limit.
True?

A: I messed up.

11

Farrar admitted to being on the phone with his sister, Cindy Turner, for 30-

45 minutes prior to the Accident. The record shows that while Duran’s

vehicle only travelled 20 feet after she hit the guardrail, Farrar’s vehicle

travelled 880 feet past the point of impact. Farrar could not say whether his

foot was on the gas after he collided with the guardrail. He broke his ankle

during the Accident, which he testified required surgery a few days later. He

did not recall when he first contacted his employer about his accident in his

bank-owned truck, but that during a board meeting when he returned from

his surgery, he did admit to his fellow board members that he had been cited

for a DWI in connection with the Accident. Farrar testified that he was not

fired from his job, and he was encouraged by the board to seek help if he

needed it for a drinking problem. He denied having a drinking problem,

only admitting that he had too much drink the day of the Accident. He

testified that he has not had a drink since the accident and expressed remorse

for the harm he caused to Duran and to his own family. Farrar testified that

he continued to receive pay and bonuses from the bank after the Accident.

Farrar denied knowing his BAC was 0.346% following the Accident until

trial.

Holly Farrar, Farrar’s wife, testified that Farrar’s drinking had been a

stressor throughout their 23-year marriage. Farrar would drink and drive to

and from his hunting property on Higginbotham Road, and she testified she

would smell alcohol on him after he returned. In multiple telephone calls

from 2013-2014, Holly Farrar testified that she called Turner, Farrar’s sister,

regarding Farrar’s drinking issues.

12

Regarding the incident where Farrar ran into a tree in 2015, Holly

Farrar testified that she arrived to that scene, saw blood coming from his

head, and observed the severity of the damage to the bank’s vehicle. She

testified that instead of the ambulance taking Farrar to the emergency room,

she took him to the office of his friend and family physician, Dr. Allen

Spires. Dr. Spires testified and confirmed that no blood tests were ordered

on this date and there is no record of Farrar’s visit or treatment at his office.

Shortly after that accident in 2015, Holly Farrar contacted Farrar’s

coworker, John Shackelford, to discuss the ongoing drinking problem and

suggested that Farrar may need rehab. Shackelford testified at trial and

confirmed Holly was concerned Farrar was drinking too much.

As it is relevant as a guidepost for exemplary damage award

considerations, there was testimony regarding the financial standing of

Farrar. The record shows that Gerald Farrar and Holly Farrar’s gross

earnings from 2012 to 2017 averaged $176,000 per year, and to owning his

home, 60 acres of land in Morehouse Parish, and owning additional acreage

with his brother. Farrar received yearly raises and bonuses ranging from

$10,000-$20,000 in the years following the Accident.

When the trial came to an end on April 14, 2022, the jury rendered a

verdict in favor of Duran $162,556 for past and future medical expenses for

injuries caused or aggravated by the Accident, plus $680,599 loss of past,

present and future of income and various general damage awards, detailed

above, and against Farrar and Allmerica,4 in addition to the $3,000,000

4
This Court granted summary judgment in favor of Mer Rouge State Bank on
issues of vicarious liability, punitive damages, and negligent entrustment, and dismissed
the claims against them. Duran v. Allmerica Fin. Benefit Ins. Co., 53,615 (La. App. 2

13

exemplary damage award. Based on the jury’s verdict, a judgment in the

amount of $3,843,155 was signed by the court, and it is from this judgment

that Farrar and Allmerica appeal.

DISCUSSION

Exemplary Damages:

On appeal, Farrar presents one assignment of error related to the

jury’s assessment of exemplary damages against him:

The jury’s award of $3,000,000 in punitive damages (which is a
ratio of almost 4:1 when compared to the $843,155 awarded as
compensatory damages) is “grossly excessive” and in violation
of the Due Process Clause because Farrar’s conduct was not
significantly reprehensible or malicious, he is not a recidivist,
Duran did not establish at trial that she could have suffered
more significant harm, and the award is not justified by Farrar’s
modest wealth. Thus, this Court should reduce the punitive
damages award to no more than a 1:1 ratio, such that punitive
damages would be no more than $843,155 and the total
judgment in Duran’s favor would be no more than $1,686,310.

The standard of review of an exemplary damages award on appeal is

de novo. Farrar asserts the instant “grossly excessive” exemplary damage

award by the jury violates his due process rights. The United States

Supreme Court has held that when a defendant has properly raised a federal

due process claim at the trial court level, determining whether an award of

punitive damages is “grossly excessive” in violation of the Due Process

Clause under the Fourteenth Amendment is subject to a de novo standard of

review. See Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S.

424, 121 S. Ct. 1678, 149 L. Ed. 2d 674 (2001); State Farm Mut. Auto. Ins.

Co. v. Campbell, 538 U.S. 408, 418, 123 S. Ct. 1513, 155 L. Ed. 2d 585

Cir. 11/18/20), 306 So. 3d 611, writ denied, 21-00212 (La. 4/7/21), 313 So. 3d 979, and
writ denied, 21-00202 (La. 4/7/21), 313 So. 3d 980

14

(2003). In accordance with this directive, the Louisiana Supreme Court has

also adopted a de novo standard of review in assessing whether an award of

punitive damages violates a defendant’s due process rights. Mosing v.

Domas, 02-0012 (La. 10/15/02), 830 So. 2d 967.

In BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S. Ct.

1589, 134 L. Ed. 2d 809 (1996), the United States Supreme Court provided

three “guideposts” to determine when an exemplary damage award crossed

the constitutional line. The BMW factors include: (1) the degree of

reprehensibility of the defendant's conduct; (2) the disparity between the

harm and/or potential harm suffered by the plaintiff and the exemplary

damages award; and (3) the difference between the exemplary damages

awarded by the jury and the civil or criminal penalties authorized or imposed

in comparable cases. BMW of North America, Inc., supra.

The United States Supreme Court stated that “perhaps the most

important indicium of the reasonableness of a punitive damages award is the

degree of reprehensibility of the defendant’s conduct.” Id. (emphasis

added). The BMW Court held the most important factor was the degree of

the reprehensibility of the defendant’s conduct and whether the harm caused

was physical as opposed to economic; the tortious conduct evinced an

indifference to or a reckless disregard for the health and safety of others; the

target of the conduct had financial vulnerability; the conduct involved

repeated actions or was an isolated incident; and the harm was the result of

intentional malice, trickery, or deceit, or mere accident. Id.

We recognize our legislature has made clear its desire to increasingly

put juries in control of determining damage awards, as evidenced by

15

substantially lowering the threshold of the amount in controversy eligible to

be submitted to a jury from $50,000 to $10,000, effective in 2021. La. C. C.

P. art. 1732. With that policy in mind, we will review each of the guideposts

in determining the reasonableness of the exemplary damages awarded by

this jury.

The Degree of Reprehensibility of Farrar’s Conduct

The Louisiana legislature has identified certain behaviors which it

clearly intends to dissuade. Some activities are criminalized and can include

incarceration and financial penalties, which are enumerated in Title 14 of

our revised statutes. To discourage other actions, it imposes treble damages,

awarding a damaged plaintiff three times their actual damages in specifically

enumerated circumstances.5 In those instances, such as improperly

harvesting the timber of another, the trier of fact only has to undertake the

somewhat simple mathematical task of affixing the award of three times the

damage amount. The formula for determining treble damages can easily be

represented as [D] being damages, and multiplying that number by three. As

such: treble damages = [D] x 3

Regarding the dangers inherent in driving while intoxicated, our

legislature has found drunk driving to be so reprehensible that, in addition to

potential criminal prosecution, it exposes the driver to exemplary damages in

favor of those injured as a result. La. C. C. art. 2315.4 authorizes recovery

of exemplary damages, in addition to general and special damages, when

there is sufficient proof there were injuries caused by a “wanton or reckless

5
Examples include La. R.S. 51:1401-1430 (the Louisiana Unfair Trade Practices
Act (LUPTA), as well as the Timber Trespass Statute, La. R.S. 3:4278.1.

16

disregard for the rights and safety of others by a defendant whose

intoxication while operating a motor vehicle was a cause in fact of the

resulting injuries.” In these very limited circumstances, there is no clear-cut

formula controlling the calculation of exemplary damages, other than the

award must be determined on review to be reasonable under the specific

facts and circumstances

Exemplary damage awards serve to punish the defendant and dissuade

others from undertaking similar reprehensible conduct. It is the complexities

encountered by the trier of fact in arriving at a “reasonable” amount of

damages that are designed to punish and deter that we draw our focus. In

this endeavor, we are guided at the outset by the Louisiana Supreme Court’s

considerations in Mosing v. Domas, 02-0012 (La. 10/15/02), 830 So. 2d 967

and Warren v. Shelter Mut. Ins. Co., 16-1647 (La. 10/18/17), 233 So. 3d

568, which are cases addressing large exemplary damage awards that were

challenged as grossly excessive.

A determination of the degree of reprehensibility of a certain behavior

is far more than a one-step “true or false” inquiry. The Louisiana Supreme

Court found that the inquiry into whether punitive damages are grossly

excessive begins with balancing the reprehensibility of the act against the

severity of the punitive damages award. Mosing, supra. The Mosing Court

considered the following aggravating factors of particularly reprehensible

conduct: the type of injury caused or that could have been caused by the

conduct; the defendant’s indifference to or reckless disregard for the health

and safety of others; and the probability of recidivism. The reprehensibility

analysis was further refined by the United States Supreme Court in State

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Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 123 S. Ct. 1513, 155

L.Ed.2d 585 (2003), which the Louisiana Supreme Court later adopted in

Warren v. Shelter Mut. Ins. Co., 16-1647 (La. 10/18/17), 233 So. 3d 568.

The Court provided the five following considerations: (1) whether the harm

caused was physical as opposed to economic; (2) whether the conduct

causing the plaintiff’s harm showed indifference to or a reckless disregard of

the health or safety of others; (3) whether the “target of the conduct” was

financially vulnerable; (4) whether the defendant’s conduct involved

repeated actions as opposed to an isolated incident; and (5) whether the harm

caused was the result of intentional malice, trickery, deceit, or mere

accident. Farrar’s actions fit squarely in each of these considerations as

aggravating factors and would appear to push the needle towards making a

significant exemplary damages award to deter such dangerous and harmful

actions.

Duran suffered physical and significant economic harm – not only the

costs of medical treatment for her injuries, but the lasting impact to her

ability to work and fully enjoy her life to the fullest. Farrar’s conduct of

driving while intoxicated demonstrated a reckless disregard to the health and

safety of others travelling on the highway. The numbers of those killed and

seriously injured on Louisiana roads each year in accidents caused by drunk

drivers is alarming (and completely preventable). The record demonstrates

that Farrar’s conduct of driving while intoxicated involved repeated actions,

as opposed to this being an isolated incident as he attempts to argue.

Finally, the harm caused to Duran was a direct result of Farrar’s intentional

malice of opting to drive while he was dangerously intoxicated; he was

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considered by medical professionals and experts to be in the “stupor stage”

of intoxication when his actions caused the Accident and resulting injuries to

Duran. The record also reveals that Farrar went to great lengths to conceal

the fact that he drank so heavily before choosing to drive – he refused a

breathalyzer test, gave repeated false statements regarding his drinking on

the day of the Accident, and failed to disclose to his employer and family

members the extent of his drinking while he operated the bank’s vehicle.

Disparity Between Harm and/or Potential Harm Suffered and
Exemplary Damages Awarded

Farrar argues that his conduct was not sufficiently reprehensible or

malicious to justify the damages award and that his conduct that led to the

accident lacked malice. Farrar asserts that due to his personal stress and

pressure from his family issues that day, his conduct was not anywhere near

the extreme end of the reprehensibility spectrum. Farrar also focuses his

argument on the fact that this was his first offense DWI conviction and

therefore concludes that he does not qualify as a “recidivist” for purposes of

the reprehensibility analysis. We disagree. Reprehensible and dangerous

activity resulting in substantial damages triggers significant exemplary

damages. The greater the harm and the greater the reprehensibility of the

conduct, the greater the award required to achieve the deterrence necessary.

After hearing evidence presented regarding Duran’s physical injuries,

her inability to continue employment, and her mental distress, the jury

awarded approximately $843,155 in compensatory damages, of which over

$162,000 was awarded for past and future medical expenses. Those awards

by the jury were not challenged as excessive by Farrar. The possible injuries

to Duran or her passenger, the three individuals in the vehicle behind Duran

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that the record indicates stopped to provide assistance, or others that crossed

paths with Farrar that evening, could have easily included death or

additional catastrophic injuries. The record in its entirety and the evidence

at trial supported the jury’s finding that Farrar possessed a behavioral pattern

of driving while intoxicated on other occasions, including the probability

that this was not his first time to drive intoxicated.

The timeline of events established by the record, including concerns

from Farrar’s wife and fellow bank employees regarding his alcohol abuse,

support the apparent conclusion by the jury that Farrar was in fact a

recidivist and that this was not an isolated incident. The record also

establishes that Farrar displayed malice when he chose to drive drunk on the

day of the accident. He repeatedly failed to disclose the truth of his

consumption of alcohol that day, and often changed his story to his family

and coworkers regarding the circumstances surrounding the Accident

throughout the litigation, even up until the trial on the matter. The jury,

rightfully so, disapproved of such actions.

Further, the record establishes Farrar’s disregard for human life and

safety was high based on his own testimony that he would drink alcohol and

routinely drive. Farrar’s high level of intoxication at the time of the accident

– a 0.346% BAC hours later – is extremely alarming. The higher the BAC

when one gets behind the wheel, the greater evidence of a wanton disregard

for the life and safety of others. Actions exhibiting a greater degree of

reprehensible conduct are deserving of greater deterrence, and that

deterrence comes in the form of effective financial penalty and

accountability. The considerations begin with the level of damages resulting

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from the reprehensible conduct, and the resulting significant exemplary

damages are an expected result, both in dollar figure and as a ratio to

damages.

Farrar argues that the relative reprehensibility of his conduct is

nowhere near egregious enough to justify a punitive to compensatory

damages ratio above 1:1, and asks this Court to reduce the punitive to

compensatory damages ratio to no more than 1:1 based on the particular

facts of this accident. Farrar argues Duran was sufficiently compensated in

general damages, and she failed to establish that greater harm could have

befallen her during the accident. We disagree.

We note that exemplary damages are not designed to make the injured

party whole, as that is role of special and general damages. The purpose of

exemplary damages is the punishment and deterrence of reprehensible

conduct of the defendant. Other than treating exemplary damages to

something akin to penalties under our criminal statutes and those funds paid

to the State of Louisiana, what are we to do with exemplary damages? The

legislature intends the exemplary damages should be paid to the injured

party, rather than some government agency or subdivision, or it would have

drafted the applicable provisions of the law otherwise. This framework does

not cause the injured party to be overcompensated, as it is punishment, not

compensation, that is the primary focus and intent of exemplary damages..

Courts have “decline[d] again to impose a bright line ratio which a

punitive damages award cannot exceed.” Warren, supra. Ratios in excess

of single-digits could raise serious constitutional questions, and single-digit

ratios are “more likely to comport with due process.” Id. Although the

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United States Supreme Court stated “there are no rigid benchmarks that a

punitive damages award may not surpass,” it strongly indicated the

proportion of punitive damages to harm should generally not exceed a ratio

of 9 to 1. State Farm Mut. Auto. Ins. Co. supra. The ratio of exemplary

damages against Farrar fixed by the jury was approximately 3.56 to 1.

The Court in State Farm Mut. Auto. Ins. Co., supra, discussed certain

combinations of factors that would justify relatively higher or lower ratios.

When compensatory damages are substantial, then a lesser ratio, perhaps

only equal to compensatory damages, can reach the outermost limit of the

due process guarantee. Id. The Court also minimized the relevance of

criminal penalties as a guide, saying that they were not particularly helpful

in determining fair notice. Id.

Considering the deliberations set forth above by the Louisiana and

United States Supreme Courts, the following formula is helpful, with

exemplary damages being the result of calculations taking into consideration

the actual damages inflicted, the degree of reprehensible conduct as a

multiplying factor of any fractional or whole number, and the wealth of the

responsible party resulting in any fractional or whole number.

[Damages] x [Reprehensibility] x [Wealth]
The damages, medical expenses and otherwise, were very significant

in the present matter – $843,155. The reprehensibility of getting behind the

wheel and driving at four times the legal limit should result in an exponential

increase. Lastly, the wealth of Farrar is not significant, and therefore no

further enhancement would be appropriate.

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[$843,155] x [±3.56] x [1] = $3,000,000
(Damages) (Reprehensibility) (Wealth Factor)

The record as a whole indicates that despite this being Farrar’s first

DWI conviction, Farrar had driven while likely and admittedly impaired

numerous times. Farrar’s BAC of 0.346% was almost four times the legal

limit of 0.08% for operating a vehicle. The ratio of the punitive damages to

the compensatory damages awarded by the jury in his case is approximately

3.56 to 1.

Louisiana courts have previously upheld an exemplary damage to

compensatory damage ratio well in excess of a 1:1 ratio. In Warren, supra,

the Court approved punitive damages in a 2:1 ratio, awarding $4,250,000.00

in exemplary damages to a plaintiff who received $2,125,000.00 in

compensatory damages. In Tingle v. Am. Home Assur. Co., 10-71 (La. App.

3 Cir. 6/2/10), 40 So. 3d 1169, 1174, writ denied, 10-1580 (La. 10/29/10),

48 So. 3d 1095, and writ denied, 10-1578 (La. 10/29/10), 48 So. 3d 1095,

and writ denied, 10-1564 (La. 10/29/10), 48 So. 3d 1095, and writ denied,

2010-1563 (La. 10/29/10), 48 So. 3d 1096, and writ denied, 2010-1562 (La.

10/29/10), 48 So. 3d 1096, an intoxicated driver of an 18-wheeler ran a red

light and collided with the plaintiffs’ car, killing their two-year-old daughter

and injuring both parents. The jury awarded approximately $2.5 million in

compensatory damages and $5 million in exemplary damages – a 2:1

exemplary damage to compensatory damage ratio. The Louisiana Supreme

Court in Mosing, supra, considered the actions of an intoxicated driver and

upheld a jury award of nine times the amount of compensatory damages

awarded – a ratio of 9:1.

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Considering the above, we find Farrar’s arguments in favor of a 1:1

ratio are without merit considering these specific facts and circumstances. It

is only because Farrar caused such extensive damages that is there a

correspondingly high exemplary damage award. The members of the jury

were presented with ample evidence regarding Farrar’s actions before,

during, and after the accident which caused significant injury to Duran. We

find that the 3.56:1 ratio ($3,000,000) of exemplary damages to

compensatory damages in this case, under these specific factors and with

this shocking level of reprehensibility, is not grossly excessive, and does not

violate the Due Process Clause.

Difference Between Exemplary Damages Awarded and Civil or
Criminal Penalties Authorized

In this case, the record shows that Farrar was convicted of DWI, first

offense. Farrar’s BAC of 0.346% exposed him to enhanced criminal

penalties, pursuant to La. R.S. 14:98.1; however, his high BAC was not

known to the judge at the time of his sentencing, and he was spared that

enhancement. Farrar’s criminal penalties are not the major factor to

consider in determining whether the exemplary damages award in this

matter is excessive. As noted in Thistlewaite v. Gonzales, 12-130 (La. App.

5 Cir. 12/18/2012), 106 So. 3d 238, there is not an available conversion table

for incarceration versus money damages. Certainly, such an alarmingly high

BAC could have resulted in a six-month jail sentence as provided in La. R.S.

14:98.1 and an extended suspension of driving privileges.

The Added Consideration of Farrar’s Wealth

The only non-BMW factor traditionally considered by Louisiana

courts in fixing exemplary damages is to take into consideration the

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defendant’s relative economic wealth. A defendant’s assets and income are

relevant factors that may be considered in determining whether an award of

exemplary damages is excessive: “The importance of the defendant’s

financial situation to the goals of punishment and deterrence is obvious:

What ‘may be awesome punishment for an impecunious individual

defendant [may be] wholly insufficient to influence the behavior of a

prosperous corporation.’” In re New Orleans Train Car Leakage Fire Litig.,

00-0479 (La. App. 4 Cir. 6/27/01), 795 So. 2d 364, 388, quoting Cont’l

Trend Res., Inc. v. OXY USA, Inc., 101 F.3d 634, 641 (10th Cir.1996), cert.

denied, 520 U.S. 1241, 117 S. Ct. 1846, 137 L. Ed. 2d 1049 (1997).

However, the defendant’s economic situation is only one of the factors that

may be considered in determining whether an award of exemplary damages

is excessive. Id.

Farrar argues that he and his wife earned approximately $176,000 per

year from 2012 to 2017. He asserts he is an individual of normal means who

has no prior history of DWI offenses; he is not a major corporation that

needs significant exemplary damages to be adequately deterred from future

drunk driving incidents. We note that the record does not contain any

objectively verifiable evidence regarding Farrar’s actual wealth aside from

his income tax returns. Farrar presented evidence as to his employment

history and salary, plus the existence of a retirement account and a list of

assets, including residential and recreational land and properties. The record

does not contain evidence as to the amount of the retirement account or the

value of his other assets. Accordingly, we find that Farrar’s wealth is not a

major or enhancing factor in the analysis regarding the exemplary damages

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award and would not be a contributing factor to further increase the ratio of

exemplary damages to actual damages. Individuals with significant wealth

may require proportionate exemplary damages to ensure the message

regarding reprehensible conduct from the jury and society is received.

However, in this case, Farrar’s wealth is not a necessary additional factor.

Farrar’s extreme and dangerous conduct of driving with a blood

alcohol content four times the legal limit and then attempting to actively

conceal that relevant fact throughout the litigation is of such a high degree of

reprehensibility that we cannot say the jury’s award of exemplary damages

of a 3.56 to 1 ratio, or the dollar amount, was unreasonable. Considering

each of the above guideposts and recognizing the degree of reprehensibility

of Farrar’s conduct, as well as the extent of the resulting damage to Duran,

we affirm the ratio and amount of exemplary damages as reasonable.

Suspensive Appeal Bond

Also pending before the court is Duran’s appeal regarding the

suspensive appeal bond posted by Farrar and his insurer. At the conclusion

of the trial, Farrar timely moved for a suspensive appeal from the May 31,

2022 judgment holding him and Allmerica liable for Duran’s damages in the

amount of $3,843,155. The trial court granted the motion for suspensive

appeal and set the appeal bond for $5,500,000. Allmerica timely filed the

suspensive appeal bond. The bond for $5,500,000 was provided by Hanover

for the principals listed in the judgment, Farrar and Allmerica.

In December of 2022, Duran filed a motion to test the sufficiency and

validity of the suspensive appeal bond with the trial court. On June 22,

2023, the trial court denied Duran’s motion, but did order Hanover Insurance

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Company to file an amended affidavit providing additional details regarding

the process it used to approve submission of the suspensive appeal bond in

this matter. On August 1, 2023, Hanover filed the amended affidavit as

directed. Duran did not seek supervisory review at the time of the trial

court’s judgment on its motion to test the sufficiency of the suspensive

appeal bond, in accordance with La. C. C. P. art. 2201, but filed its own

separate devolutive appeal on the issue. In general, when an unrestricted

appeal is taken from a final judgment, the appellant is entitled to seek review

of all adverse interlocutory judgments prejudicial to him, in addition to the

review of the final judgment. Martin v. Martin, 52,401 (La. App. 2 Cir.

11/14/18), 261 So. 3d 984, 989. Accordingly, we will address Duran’s

arguments regarding the trial court’s judgment on the suspensive appeal

bond here in this consolidated appeal.

Duran asserts that Farrar’s pursuit of a suspensive appeal is improper

because the suspensive appeal bond is invalid. Specifically, Duran argues

that the surety company securing the appeal bond, Hanover Insurance

Company, is not entitled to serve as surety on the appeal bond. Duran

asserts that Hanover – an excess insurer of Mer Rouge State Bank, who was

dismissed from this lawsuit through a motion for summary judgment – is not

entitled to serve as surety on Farrar’s suspensive appeal bond.

In response to Duran’s arguments on appeal relating to the suspensive

appeal bond, Farrar argues that the suspensive appeal bond was issued by a

reputable surety in an amount greater than the judgment plus interest, and

was approved by the trial court. Farrar argues that although Hanover did

issue an excess insurance policy to Mer Rouge State Bank, the jury verdict

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and subsequent judgment in favor of Duran are not against Hanover or Mer

Rouge State Bank. Thus, neither Hanover nor its named insured, Mer Rouge

State Bank, have been cast in judgment in this matter.

The trial court correctly determined that Hanover is not serving as

“surety for its own debt” and the suspensive appeal bond is valid, in

accordance with La. C. C. P. art. 2124(E). We find Duran’s arguments

regarding the suspensive appeal bond are without merit. Therefore, Duran’s

motion to dismiss Farrar’s suspensive appeal is denied, and the trial court’s

June 22, 2023, judgment recognizing Hanover as surety of the suspensive

appeal bond is affirmed.

CONCLUSION

We conclude that the jury's award of $3,000,000 in exemplary

damages is not excessive under these specific facts and circumstances, and it

does not violate the Due Process Clause of the Fourteenth Amendment. We

affirm the exemplary damages ratio of 3.56 to 1 and the monetary award of

$3,000,000 against Gerald Farrar. Further, we affirm the trial court’s June

22, 2023 judgment recognizing Hanover as a proper surety for the

suspensive appeal bond. Costs are assessed to Gerald Farrar and Allmerica.

AFFIRMED.

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