Keith A. Lowery, Et Ux. v. Safeway Ins. Co. of Louisiana

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1456

KEITH A. LOWERY, ET UX.

VERSUS

SAFEWAY INS. CO. OF LOUISIANA, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 208,427
HONORABLE BERT DEXTER RYLAND, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Billie Colombaro Woodard, Elizabeth A. Pickett and Arthur J.
Planchard,* Judges.

AFFIRMED AS AMENDED.

Thomas Overton Wells
Attorney at Law
1254 Dorchester Drive
Alexandria, LA 71303-0000
(318) 445-4500
Counsel for Plaintiff Appellee:
Keith A. Lowery
Sandra Lowery

Ray F. Lucas III
Joana Ortego LaBruyere
Borne, Wilkes & Brady
P. O. Box 4305
Lafayette, LA 70502-4305
(337) 232-1604
Counsel for Defendant Appellant:
Safeway Ins. Co. of Louisiana
Jennifer B. Lewis

*
Judge Arthur J. Planchard, Retired participated in this decision by appointment
of the Louisiana Supreme Court as Judge pro tempore.

Pickett, Judge.

FACTS

On February 9, 2002, a vehicle being driven by Keith Lowery was involved in

an accident with a vehicle being operated by Jennifer Lewis. Lowery’s wife, Sandra,

and his two minor daughters, Sankeitha and Iniki, were passengers in his vehicle. The

Lewis vehicle was insured by Safeway Insurance Company. Lowery and his wife,

individually and on behalf of their minor daughters, filed suit against Lewis and

Safeway.

A bench trial was held on April 24, 2003. The parties stipulated that Lewis was

solely liable for the accident. As part of the stipulation, Lewis was dismissed from the

suit. The only issue before the court was damages. The court issued written reasons

for judgment on April 30, 2003. Keith Lowery was awarded the following damages:

Lost wages $ 132.00

Rental expenses $1,344.20

Sales tax expenses $1,234.00

General damages $4,500.00

The court awarded Sandra Lowery, on behalf of Sankeitha, medical expenses

in the amount of $870.00 and general damages in the amount of $4,500.00.

The court awarded Sandra Lowery, on behalf of Iniki, medical expenses in the

amount of $712.60 and general damages in the amount of $3,500.00.

The court awarded Sandra Lowery $1,888.30 for medical expenses and

$7,500.00 for general damages.

It is from this judgment that Safeway appeals.

ASSIGNMENTS OF ERROR

Safeway alleges six assignments of error:

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1) The trial court committed legal error in awarding $1,234.00 for the
taxes paid by Keith A. Lowery on the total loss sustained to his vehicle.

2) The trial court erred in awarding $1,344.20 as reimbursement for a
rental car.

3) The trial court erred in awarding general damages in the amount of
$2,000.00 to Keith A. Lowery.

4) The trial court erred in awarding $4,500.00 in general damages to
Sankeitha Lowery.

5) The trial court erred in awarding $3,500.00 in general damages to
Iniki Lowery.

6) The trial court erred in awarding $7,500.00 to Sandra Lowery.

DISCUSSION

In the first assignment of error, Safeway argues the trial court erred by awarding

sales tax paid by Keith Lowery on the vehicle he purchased to replace the vehicle

which was a total loss as a result of the accident.

The value of the Lowery vehicle that was completely destroyed in the accident

as a result of the fault of Safeway’s insured was $5,928.00. Lowery purchased a

replacement vehicle for $18,475.00 and paid sales taxes in the amount of $1,234.00

on the vehicle. The trial court awarded the full amount of sales taxes paid. Safeway

argues this results in a windfall for Lowery and the amount of sales taxes should be

reduced to the sales taxes that would be due on a vehicle that had the same value as

the vehicle that was destroyed, or 8% of $5,928.00, which is $474.24.

The legislature, by Acts 2001, No. 478, amended La.Civ.Code art. 2315 to

include the final sentence (emphasis added):

A. Every act whatever of man that causes damage to another obliges
him by whose fault it happened to repair it.

B. Damages may include loss of consortium, service, and society, and
shall be recoverable by the same respective categories of persons who

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would have had a cause of action for wrongful death of an injured
person. Damages do not include costs for future medical treatment,
services, surveillance, or procedures of any kind unless such treatment,
services, surveillance, or procedures are directly related to a manifest
physical or mental injury or disease. Damages shall include any sales
taxes paid by the owner on the repair or replacement of the property
damaged.

The purpose of the tort statute is to place the injured person back in the position

he was in before the tort. Wainwright v. Fontenot, 00-492 (La. 10/17/00), 774 So.2d

70. When a tort victim incurs costs to repair a vehicle or must replace that vehicle,

the victim should not be required to bear the costs of sales taxes that must be paid to

restore him to the position he was in prior to the accident. This has clearly been

recognized by our legislature.

Affirming the trial court’s award in the instant matter, however, clearly results

in a windfall to the plaintiff. The vehicle that was totaled was worth $5,928.00. The

plaintiff chose to replace that vehicle with a vehicle which cost $18,745.00. This is

not a vehicle comparable to that lost, but instead an improvement over it. The taxes

paid on the new vehicle were $1,234.00, or 20.8% of the value of the destroyed

vehicle. The proper calculation of sales tax due, in order to make a tort victim whole

again, is the tax due on a replacement vehicle of equal value, in this case $5,928.00.

Any other interpretation could result in a situation whereby a car worth only a pittance

is destroyed and the sales tax on a new vehicle by more than the value of the destroyed

car. This would be contrary to the purpose of our tort law which restores a tort victim

to the position he was in before the tort. Thus, the proper method of calculating sales

tax for a replacement vehicle under Article 2315 is to determine the tax due on a

vehicle of equal value. In this case, 8% being the applicable sales tax rate, $474.24

is due the plaintiff. We hereby amend the judgment to that amount.

The second assignment of error concerns reimbursement for a rental car. The

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accident occurred on February 9, 2002, Lowery rented a car on February 11, 2002 and

did not return it until April 22, 2002, a period of 71 days. Safeway argues this is

unreasonable. They argue Lowery knew that the car was a total loss within two weeks

of the accident and he should not be compensated for the rental car for more than 30

days beyond that date.

Whether the appellee replaced the vehicle within a reasonable amount of time

and is thus entitled to all damages claimed for the rental vehicle, under the

circumstances of this case, is a factual determination which should not be reversed

absent manifest error. Rosell v. Esco, 549 So.2d 840 (La.1989).

The trial court found, based in part on the testimony of Safeway’s adjustor, that

it was the usual practice to allow use of a rental vehicle until insurance funds were

issued. Thus, the trial court’s determination that the rental expenses were reasonable

and recoverable up until Lowery received the check from Safeway and the funds were

available to him is not clearly wrong. This assignment of error lacks merit.

The remaining four assignments of error concern general damage awards. In

Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), the supreme court

articulated the standard of appellate review of general damage awards:

[T]he discretion vested in the trier of fact is “great,” and even vast, so
that an appellate court should rarely disturb an award of general
damages. Reasonable persons frequently disagree about the measure of
general damages in a particular case. 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 the appellate court should increase or
reduce the award.

We have reviewed the general damage awards. Keith Lowery suffered injuries

to his wrist and knee. The knee injury lasted two weeks and the wrist injury 2-3

weeks. He was awarded general damages of $2,000.00. Sandra Lowery suffered

injuries to her right thumb and knees. She continues to have pain when she extends

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her fingers. She also injured her knees, and her left thigh. She was required to have

physical therapy. She was awarded general damages of $7,500.00. Sankeitha

suffered injuries to her knee, forehead, and left clavicle. She was transported from the

scene by ambulance and treated for contusions and trauma. She still gets headaches

related to this accident. She was awarded general damages of $4,500.00. Iniki bit her

lip during the accident and suffered injuries to her head and knee. She was also

transported from the scene by ambulance. Her injuries lasted between two and three

weeks. She was awarded general damages of $3,500.00

We find no abuse of the vast discretion of the trial court in awarding general

damages. This assignment of error lacks merit.

CONCLUSION

We amend the trial court’s judgment to reflect an award of $474.24 for sales tax

due. The judgment is affirmed in all other respects. Costs of this appeal are assessed

equally between Safeway and Keith Lowery.

AFFIRMED AS AMENDED.

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