J. Quentin Simon v. Jeffery T. Reel

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

03-932

J. QUENTIN SIMON

VERSUS

JEFFERY T. REEL, ET AL

**************
APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, DOCKET NO. 2000-4854
HONORABLE JOHN D. TRAHAN, PRESIDING

**************
SYLVIA R. COOKS
JUDGE
**************

Court composed of Sylvia R. Cooks, Oswald A. Decuir, and Glenn B. Gremillion,
Judges.

AFFIRMED AS AMENDED.

Barry L. Domingue
Simon Law Offices
122 Representative Row
P.O. Box 52242
Lafayette, Louisiana 70505
(337) 232-2000
COUNSEL OF APPELLANT:
J. Quentin Simon

Richard J. Petre, Jr.
P.O. Drawer 3507
Lafayette, Louisiana 70502-3507
(337) 237-2660
COUNSEL FOR APPELLEE:
Allstate Insurance Company

COOKS, Judge.

On March 11, 2000, J. Quentin Simon, was a back seat passenger in a Chevy

Tahoe driven by Jeffery Reel. Mr. Reel ran into the rear of a vehicle driven by Margie

Duplantis. When the collision occurred, Mr. Simon was thrown forward causing his

chest and right shoulder to hit the front seat. Mr. Simon sued Jeffery Reel and his

liability insurer, State Farm Mutual Automobile Insurance Company, Margie R.

Duplantis and her liability insurer, Southern United Fire Insurance Company, and his

own uninsured/underinsured motorist carrier, Allstate Insurance Company (Allstate).

Prior to trial, Jeffery Reel and his liability insurer, State Farm Mutual

Automobile Insurance Company settled with Mr. Simon for the policy limits of

$100,000.00. Additionally, Margie Duplantis and her insurer, Southern United Fire

Insurance Company, settled with Mr. Simon. Liability was stipulated to and the only

remaining issue was the amount of damages Mr. Simon was entitled to recover under

his uninsured/underinsured motorist policy with Allstate.

The trial court found although Mr. Simon had a “preexisting lumbar defect and

and possibly preexisting disc bulges that predisposed him to injury, he was

asymptomatic prior to the accident and therefore . . . [was] entitled to damages for the

aggravation of the preexisting conditions as well as for other injuries sustained in the

accident.” The trial court awarded past medical expenses of $17,539.86, future

medical expenses of $5,000.00 and general damages of $100,000.00. Allstate was

entitled to a credit of $5,000.00 for the medical payments it had already made. Mr.

Simon was entitled to recover from Allstate the portion of his damages which

exceeded $100,000.00. It is from this judgment that Mr. Simon appeals. We find the

trial judge’s award of future medical expenses and general damages are not supported

by the record and, therefore, we amend the decision of the trial court. In all other

respects, we affirm.

2

LAW AND DISCUSSION

It is undisputed Mr. Simon had significant back problems prior to the accident

in March 2000. He had a congenital problem in his back known as spondylolisthesis

or forward vertebral slippage of L5 on the right side. Dr. Michael Heard, the treating

physician, testified this condition may render an individual “more fragile to trauma

and more - - it takes longer for them to get well and they get - - sometimes they just

never get completely well because it’s an extra - - it’s like a weak link in the spine,

and when there’s a trauma, that weak link can be significantly aggravated and they

never make a full recovery.”

In addition to the congenital spinal condition, the record indicates Mr. Simon

was involved in prior automobile accidents in April 1989 and May 1990. However,

the trial court found, based on testimony by Dr. Heard, that Mr. Simon was

asymptomatic prior to the March 2000 accident. In August 2000, after the accident

in question, Mr. Simon began seeing Dr. Heard. Dr. Heard testified that he had

multiple level cervical disc bulging and a disc protrusion without any nerve

impingement C5-6 and at L5-S1; had bilateral slippage of the L5 vertebral body; and

had ulnar nerve entrapment on the left side.

Past medical expenses

Mr. Simon contends the trial court erred in refusing to award the expenses

associated with a hot tub and medical reports as past medical expenses. In his refusal

to award the cost of buying and installing a hot tub, the trial court found “[t]here was

no evidence submitted at trial that any of his doctors had prescribed or recommended

that he get a hot tub for his house. The Court finds that Simon has failed to prove that

the cost of purchasing and installing the hot tub are expenses necessitated by injuries

he suffered in the accident.” We find no error in this conclusion and, therefore, affirm

the trial court’s decision.

3

Mr. Simon contends the trial court erred in not awarding as medical expenses

Dr. Heard’s narrative reports. In Hunter v. Kroger Co., 600 So.2d 837, 845 (La.App.

3 Cir. 1992), this court stated “charges for narrative reports, conference[s], and other

related services apparently incurred for litigation purposes” are not items of damages.

We find no error in the trial court’s decision.

Future Medical Expenses - Lumbar Surgery

In order to recover future medical expenses, a “plaintiff must show that the

medical expenses will more probably than not be incurred.” Endsley v. Pennington,

31,027 (La.App. 2 Cir. 9/29/98), 718 So.2d 650, 653. The trial court found:

Dr. Heard has not recommended lumbar surgery to date. He said,
however, that Simon will probably need surgery sometime in the future.
Surgery was suggested as a possible option in 1991. Although it may be
more probable than not that Simon will eventually need lumbar surgery,
plaintiff has not proved that he will likely need the surgery because of
the March 2000 accident.

Despite finding Mr. Simon will need lumbar surgery in the future, the trial court

only awarded $5,000.00 for future medical expenses. We find the medical evidence

supports a finding that Mr. Simon’s current back problems are the result of the

accident of March 2000. Any future back surgery will be a direct result of the

accident of March 2000 which aggravated an already fragile back condition. Dr.

Heard did not recommend back surgery because he testified the type of back surgery

Mr. Simon would require is extensive and dangerous. Dr. Heard testified:

Now, he has a mechanical problem and a disc problem. So he’s going
to need the extreme, which will be removal of the disc, instrumentation
with screws and plates, and spinal fusion. So, your trying - - you
address both of the problems because he has a mechanical problem in the
back and he has that disc problem. So he can’t have the - - if he goes to
surgery, he can’t have the simple micro-discectomy with a half-inch scar
on his back. That’s the - - that’s the least of back operations, and the
extreme is the decompression - - laminectomy, decompression,
discectomy, instrumentation and fusion. And that - - that’s why I’ve
been telling him - - I say you live with this as long as you can, but, you
know, - - because the surgery that you’re going to need, if you come to

4

surgery, is not the simple micro-discectomy. I hate to say simple
because there are no simple back operations - - the lesser back
operation. What he would need would be the full, blue plate special.

The type and severity of the surgery has thus far caused Mr. Simon to opt for

conservative treatment. However, his congenital defect, coupled with the trauma of

the March 2000 accident, makes the need for surgery in the future very probable. Dr.

Heard further testified:

It’s not recommended right now, but it’s an option for him and it’s more
probable that he’s going to have continued, ongoing, permanent
problems in his back. He doesn’t just have a back strain; he’s got a - -
he has a mechanical defect in his back that was pre-existing and
asymptomatic that’s been aggravated, and he has a small herniation in
his back.

Dr. Heard testified the cost of the back surgery, including hospital, surgeon and

implants would be $60,000.00. Based on the testimony of Dr. Heard, we increase the

future medical expenses to $65,000.00.

Future Ulnar Nerve Surgery

The trial court found Mr. Simon did not prove he would incur medical expenses

for ulnar nerve surgery. We find no error in this finding. Dr. Heard noted Mr. Simon

was not experiencing any muscle atrophy or weakness that would have made the

procedure necessary. He recommended continued conservative treatment. There was

no evidence Mr. Simon’s condition would likely worsen or that the procedure would

be necessary in the future as a result of the March 2000 accident.

General Damages

In awarding general damages, the trial court failed to consider the future lumbar

surgery. Louisiana law provides general damages are those which may not be fixed

with exactitude. Instead, general damage awards involve mental and physical pain

and suffering, inconvenience, loss of intellectual gratification and physical enjoyment,

or other losses of life or lifestyle which cannot be definitely measured in monetary

5

terms. Montgomery v. Opelousas General Hospital, 546 So.2d 621 (La.App. 3 Cir.

1989). The factors to be considered in assessing quantum for pain and suffering are

severity and duration. Glasper v. Henry, 589 So.2d 1173 (La.App. 4 Cir. 1991). A

tortfeasor takes his victim as he finds him and the primary objective of general

damages is to restore the injured party to the state he was in prior to the accident.

Thibodeaux v. USAA Casualty Insurance Company, 647 So.2d 351 (La.App. 1 Cir.

1994). The evidence indicates Mr. Simon sustained injury to his back which will

require extensive back surgery in the future. He is currently under the care of Dr.

Heard and Dr. David Barczyk, a chiropractor. We find the award of $100,000.00

excessively low and increase the award to $140,000.00. Coco v. Winston Industries,

Inc., 341 So.2d 332 (La.1977).

Uninsured/underinsured Coverage

Allstate contends Mr. Simon failed to carry his burden of proving Jeffery Reel

was an underinsured motorist under the policy. We disagree. The filing of the

Allstate policy together with proof at trial that Mr. Simon’s damages exceeded the

policy limits was sufficient to satisfy Mr. Simon’s burden of proof. Once this proof

is met, the burden shifts to Allstate to show there were other applicable policies

available. Scherer v. Chaisson, 469 So.2d 510 (La.App. 3 Cir. 1985).

Subrogation

Allstate contends the trial court erred by allowing Mr. Simon to recover

$5,000.00 in medical expenses paid by State Farm. Allstate contends, upon payment

by State Farm, State Farm became subrogated to plaintiff’s rights to the extent of the

$5,000.00 and the subrogation language contained in the State Farm policy enures to

Allstate’s benefit to prevent Mr. Simon from recovering any additional past medical

expenses. We find no merit in this argument. Mr. Simon asserted his own right to

recover additional past medical expenses under his own policy with Allstate.

6

DECREE

Based on the foregoing review of the evidence, we amend to increase, the trial

court’s award of future medical expenses to $65,000.00 and the general damage award

to $140,000.00. In all other respects, we affirm the decision of the trial court.

AFFIRMED AS AMENDED.

7