Olivia Lynch v. Progressive Insurance Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 04-257

OLIVIA LYNCH

VERSUS

PROGRESSIVE INSURANCE COMPANY, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 208,862
HONORABLE DONALD T. JOHNSON, DISTRICT JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of John D. Saunders, Michael G. Sullivan, and Elizabeth A. Pickett,
Judges.

Saunders, J., concurs in the result and assigns written reasons.

REMANDED WITH INSTRUCTIONS.

Edward Alan Kaplan
Attorney at Law
Post Office Box 12386
Alexandria, Louisiana 71315
(318) 448-0831
Counsel for Plaintiff/Appellee:
Olivia Lynch

Ray F. Lucas, III
Attorney at Law
Post Office Box 4305
Lafayette, Louisiana 70502-4305
(337) 232-1604
Counsel for Defendants/Appellants:
Safeway Insurance Company
Douglas Sibley

SULLIVAN, J.

While operating a vehicle owned by Harriet Gonzalez, Douglas Sibley struck

a house rented and occupied by Olivia Lynch. Ms. Lynch filed suit against

Mr. Sibley; his insurer, Safeway Insurance Company (Safeway); and the insurer of

the Gonzalez vehicle, Progressive Insurance Company (Progressive). After settling

with Progressive, Ms. Lynch obtained a judgment in her favor against Safeway and

Mr. Sibley for Safeway’s policy limits of $10,000.00. Safeway and Mr. Sibley

appeal, arguing that the trial court erred (1) in not granting Safeway credit for the

remaining limits of the Progressive policy, which provided primary coverage for the

accident, and (2) in not making specific findings as to the amount of special damages

and general damages sustained by Ms. Lynch. Because the trial court’s reasons for

judgment are confusing and incomplete, we are unable to determine what, if any,

credit the trial court applied in rendering judgment against Safeway and Mr. Sibley.

Accordingly, we remand for clarification with instructions outlined below.

Facts

The accident occurred on May 12, 2002, when Mr. Sibley, while driving with

two passengers in the Gonzalez car, lost control of the vehicle and struck Ms. Lynch’s

residence, a brick home that she was renting. At the time of the accident, the fifty-

two-year-old Ms. Lynch was standing in the living room, where she was struck in the

back, neck, and legs by flying bricks and debris.

That day, Ms. Lynch was transported by ambulance to the Huey P. Long

Emergency Room in Pineville, Louisiana, where she was treated for neck, leg, and

back pain. Two days later, she sought additional treatment at St. Frances Cabrini

Hospital (Cabrini) in Alexandria, Louisiana, for pain and swelling in her upper back.

After she was discharged from Cabrini, she was treated for approximately three

months by Dr. Gerald Leglue, who also prescribed physical therapy. Dr. Leglue

concluded that Ms. Lynch suffered from a cervical sprain/strain, thoracic strain, and

multiple abrasions and contusions in the upper back. He also diagnosed lumbar

strain, lumbar facet joint sprain, right iliolumbar sprain, right piriformis muscle strain,

and edema in both legs. Ms. Lynch’s medical expenses totaled $7,080.28, plus an

additional $67.64 in copying costs. She also missed two weeks of work, resulting in

lost wages of $652.00.

The collision caused significant damage to Ms. Lynch’s residence, rendering

it uninhabitable. Despite Progressive’s promises that living arrangements would be

provided for her, no accommodations were made. As a result, Ms. Lynch and her son

lived in a car for about four days. She also claims that several items were stolen from

her home because the structural damage made it impossible to secure it from the

public. After collecting enough money for a moving van, Ms. Lynch moved in with

her cousin for about two and a half weeks before finding a new place to live.

The Progressive policy covering the Gonzalez car had bodily injury limits of

$25,000.00 per person and $50,000.00 per accident. Mr. Sibley’s Safeway policy

limits were $10,000.00 per person and $20,000.00 per accident. Progressive settled

with the two passengers in the Gonzalez vehicle for a total of $31,827.50, leaving

$18,172.50 in coverage for Ms. Lynch’s claim.1 After filing suit, Ms. Lynch

dismissed Progressive after settling with it for $10,000.00 and proceeded to a

quantum-only trial against Safeway and Mr. Sibley. In awarding Ms. Lynch the

Safeway policy limits of $10,000.00, the trial court stated:

1
Although Defendants state in their appellate brief that they are entitled to a credit of
$18,712.50, they apparently reached this figure by transposing two numbers.

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I understand that. So when you take this to Lake Charles, understand
the Court’s reasoning. But this woman has suffered excessive damages.
There are two separate legal entities here that were both liable under the
circumstances. I will not punish you by giving you the excess of your
carriage, but I will deny you credit. Because this woman was damaged
beyond the amount of—that she should be able to recuperate for the
damages, inconvenience and losses that she has suffered.

So, this Court, at this time, will grant her the policy limits of
Safeway, which is Ten Thousand Dollars. And this Court will further
add that even—even there, that is not adequate. And that’s why I
wanted to be sure that when I put my pen to it, that I wouldn’t just be
whistling Dixie, and giving her something she cannot have.

(Emphasis added.)

Discussion

In their first assignment of error, Safeway and Mr. Sibley argue that the trial

court erred in not granting them a credit for the remaining $18,172.50 of coverage

under the Progressive policy, as that policy provided primary coverage for the

accident. In their second assignment of error, they argue that the trial court erred in

not making specific findings as to the amounts of general and special damages,

resulting in the denial of a credit on the judgment rendered.

Safeway and Mr. Sibley contend that the trial court awarded Ms. Lynch

Safeway’s policy limits of $10,000.00 because it found that her damages exceeded

only those limits, without specifying the amount of her total damages. Because

Ms. Lynch could collect from Safeway only if her damages exceeded $18,172.50,

Defendants argue that the trial court committed an error of law in not granting them

a credit in that amount, which error requires a de novo determination of damages in

this court. Ms. Lynch responds that the trial court did, in fact, give Defendants proper

credit, as its reasons for judgment indicate that it intended to award Ms. Lynch an

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amount in excess of $28,172.50, which amount she contends is supported by the

record under a manifest error review.

We agree with Safeway and Mr. Sibley that they are entitled to a credit of

$18,172.50, the amount of remaining coverage under the Progressive policy. At the

time of the accident, Mr. Sibley was driving a non-owned vehicle, and his Safeway

policy clearly provides that “the insurance with respect to . . . a non-owned vehicle

shall be excess over any and other valid and collectible insurance.” See also Slocum

v. Am. Cas. Ins. Co., 189 So.2d 299 (La.App. 3 Cir. 1966). We also agree that the

trial court erred in not making specific findings as to “[t]he total amount of special

damages and the total amount of general damages sustained as a result of the injury,

death or loss, expressed in dollars . . . ” as required by La.Code Civ.P. art. 1812(C)(4)

(emphasis added) and La.Code Civ.P. art. 1917.

However, we find that the trial court’s reasons are unclear as to whether

Defendants were awarded the proper credit of $18,172.50, and we are unwilling to

assume that the trial court intended to award damages in excess of $28,172.50. The

trial court found that Ms. Lynch sustained “excessive damages,” but stopped short of

identifying the figure they exceeded, stating, “Because this woman was damaged

beyond the amount of—that she should be able to recuperate for the damages,

inconvenience and losses that she has suffered.” (Emphasis added.) Hence, it is

unclear whether the trial court intended those damages to be in excess of $10,000.00

but under $18,172.50 (as Defendants argue) or in excess of $28,172.50 (as Ms. Lynch

argues).

“In the assessment of damages in cases of offenses, quasi offenses, and quasi

contracts, much discretion must be left to the judge or jury.” La.Civ.Code art. 2324.1.

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Furthermore, when reviewing questions of law, appellate courts are to determine if

the trial court’s ruling was legally correct or not. Cleland v. City of Lake Charles, 02-

805 (La.App. 3 Cir. 3/5/03), 840 So.2d 686, writs denied, 03-1380 (La. 9/19/03), 853

So.2d 644 and 03-1385 (La. 9/19/03), 853 So2d 645. In the present case, due to the

trial court’s confusing and incomplete reasons, we are unable to determine whether

the trial court awarded the Defendants a credit to which they were entitled. Whether

or not this credit was awarded affects the standard of appellate review to be applied.

Given the discretion that the trial court should be afforded in the assessment of

damages, we find the most prudent course of conduct is to remand the case with

instructions that the trial court comply with La.Code Civ.P. arts. 1917 and 1812(C)(4)

by making specific findings as to Ms. Lynch’s special and general damages, subject

to the credit set forth in this opinion.

Decree

For the above reasons, the case is remanded with instructions that the trial court

comply with La.Code Civ.P. arts. 1917 and 1812(C)(4) and for further proceedings

consistent with this opinion. Costs of this appeal are assessed equally to Plaintiff and

Defendants.

REMANDED WITH INSTRUCTIONS.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 04-257

OLIVIA LYNCH

VERSUS

PROGRESSIVE INSURANCE COMPANY, ET AL.

SAUNDERS, J., concurs in the result.

Based upon the remarks made by the trial judge when ruling on this matter
from the bench, I believe that an award in excess of $28,172.50 was intended. The
judge proclaimed:
I understand that. So when you take this to Lake
Charles, understand the Court’s reasoning. But this woman
has suffered excessive damages. There are two separate
legal entities here that were both liable under the
circumstances. I will not punish you by giving you the
excess of your carriage, but I will deny you credit.
Because this woman was damaged beyond the amount of
– that she should be able to recuperate for the damages,
inconvenience and losses that she has suffered.
So, this Court, at this time, will grant her the policy
limits of Safeway, which is Ten Thousand Dollars. And
this Court will further add that even – even there, that is
not adequate. And that’s why I wanted to be sure that
when I put my pen to it, that I wouldn’t just be whistling
Dixie, and giving her something she cannot have.
[emphasis added].

The above quoted language evidences the trial judge’s belief that Plaintiff suffered
damages in excess of $28,172.50. I believe that the trial judge effectively gave the
credit of $18,172.50 and also awarded the $10,000.00 limit of the Safeway. I do not
find this award to be manifestly erroneous. Because I believe the trial judge awarded
the maximum amount of damages available under the relevant policies, I do not feel
that a remand is necessary. I do, however, concur in the result in the interest of
judicial economy and in full confidence that the parties’ will not be prejudiced by a
remand.

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