M. Jayne Yellot v. Underwriters In. Co. and Sabine Pools, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-1342

M. JAYNE YELLOTT

VERSUS

UNDERWRITERS INSURANCE COMPANY AND SABINE POOLS, INC.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2001-672
HONORABLE CHARLEY QUIENALTY AND
HONORABLE DAVID RITCHIE, DISTRICT JUDGES

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE
**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, Marc
T. Amy, Michael G. Sullivan, and Elizabeth A. Pickett, Judges.

AMY, J., CONCURS IN PART AND DISSENTS IN PART AND ASSIGNS
REASONS.

AFFIRMED IN PART; REVERSED IN
PART; AND RENDERED.

Rudie R. Soileau, Jr.
717 Pujo Street
Lake Charles, LA 70601
Telephone: (337) 433-0110
COUNSEL FOR:
Plaintiff/Appellant - M. Jayne Yellott

Patrick J. Briney
Richard R. Montgomery
Briney & Foret
Post Office Box 51367
Lafayette, LA 70505-1367
Telephone: (337) 237-4070
COUNSEL FOR:
Defendants/Appellees - Sabine Pools, Inc. and Underwriters
Insurance Company

V. Ed McGuire, III
Plauche', Smith & Nieset
Post Office Drawer 1705
Lake Charles, LA 70602
Telephone: (337) 436-0522
COUNSEL FOR:
Intervenor/Appellee - State Farm Mutual Automobile Insurance
Company

THIBODEAUX, Chief Judge.

This personal injury action, arising out of a car collision between a left-

turning pickup truck and the plaintiff’s vehicle, which was attempting to pass, was

tried by jury and resulted in a fault allocation of 50% to each driver. The jury

awarded the plaintiff, M. Jayne Yellott (“Yellott”), $10,000.00 for loss of past

earnings and $90,000.00 for past, present, and future medical expenses. However,

the jury rejected Yellott’s request for general damages and damages for loss of future

earning capacity. Yellott has appealed, contending that a reallocation of fault is

necessary based on the evidence presented at trial and that the damage award should

be requantified and further modified to reflect general damages and damages for loss

of future earning capacity.

The defendants, Sabine Pools, Inc. and its insurer, Underwriters

Insurance Company (hereafter collectively referred to as “Sabine Pools”), answered

the appeal, seeking an increase in the allocation of fault to Yellott and additionally

seeking a reduction in all monetary damages awarded to her. Sabine Pools has also

asked this court to modify the assessment of court costs imposed by the trial court.

Both parties have asked this court to consider whether a new trial is due

as a result of the trial court’s denial of the parties’ respective motions to preclude lay

opinion testimony of fact witnesses for both sides, which the parties contend

constituted inadmissible and prejudicial testimony. We conclude that the trial court

committed legal error in allowing the lay opinion testimony of Trooper Ronald Mann

and witnesses David Bunch and Michael LeLeux. We decline to remand for a new

trial. Rather, because these legal errors interdicted the fact-finding process and were

prejudicial, we conduct a de novo review of the record.

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For the following reasons, we reverse the portion of the judgment which

rejected the plaintiff’s claims for general damages and damages for loss of future

earning capacity. We award $100,000.00 in general damages and $181,694.00 for

loss of future earning capacity. Further, we increase the award of damages to the

plaintiff for past loss of earnings to $23,189.00 but decrease the award of medical

expenses to the plaintiff to $34,500.00. Finally, we reallocate the assessment of fault

to ninety percent to Sabine Pools, Inc. and ten percent to Ms. Yellott and trial court

costs similarly of ninety percent to Sabine Pools, Inc. and ten percent to Ms. Yellott.

The judgment is affirmed in all other respects.

I.

ISSUES

This appeal presents multiple issues. First, both sides of this dispute

have asked this court to determine whether the trial court’s admission of certain lay

opinion testimony from multiple fact witnesses constituted error that necessitates a

new trial. Additionally, this court is faced with the question of whether the jury’s

allocation of fault and its damage awards are reasonable based on the evidence

presented at trial. Finally, this court has been asked to consider whether the trial

court’s assessment of court costs to the parties should be modified.

II.

FACTS

On August 21, 2000, a car accident occurred between Yellott, who was

driving a Pontiac Grand Am, and David Bunch (“Bunch”), the employee/driver of a

Sabine Pools GMC 3500 extended cab, heavy duty pickup truck. The events leading

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up to and during the accident are disputed, as well as the extent of Yellott’s resulting

injuries.

Shortly before the accident occurred, Bunch turned west onto Louisiana

Highway 379 from an intersecting roadway, Independence Road, at a distance of

approximately one mile ahead of Yellott’s approaching vehicle. Highway 379 is a

paved, two-lane roadway where passing is permitted. The speed limit is 55 miles per

hour. Bunch testified that after seeing the approaching vehicle, he turned left onto

the highway and turned on his left turn signal. He claims that he never exceeded 25

miles per hour once he turned onto the highway since he intended to make a left turn

into the driveway of a co-worker’s home, located about 100 yards west of the

intersection.

Yellott, who was traveling westward in the right lane of Highway 379

in her Pontiac Grand Am, approaching Independence Road, was being followed by

her friend, Rebecca Hoffpauir (“Hoffpauir”), who was driving a Ford Mustang. They

both testified to seeing the Sabine Pools truck turn left onto Highway 379 off of

Independence Road as they approached and confirmed that the driver was proceeding

at a slow rate of speed, well below the speed limit, once on the highway. Both denied

seeing a turn signal or any other indication from the driver that he was intending to

make a turn.

Yellott testified that after driving behind the truck for a short distance,

she decided to pass it. Hoffpauir testified that she continued to drive in the right lane

of the highway behind the Sabine Pools truck while Yellott began to pass. Yellott

contends that after determining there was no oncoming traffic, she drove across the

centerline into the left lane of the highway and increased her speed to attempt to pass

the Sabine Pools truck. While in the process of overtaking the truck, she asserts that

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its driver, without warning or signaling in any manner, began a left turn, crossing

over the centerline, directly into her lane of travel. Because of her position virtually

parallel to the truck, she applied her brakes, but claims to have been unable to avoid

the collision.

The record reflects that the collision with Yellott’s vehicle bent the

truck’s large side mirror backwards towards the truck, and caused damage to the

truck’s front driver’s side wheel assembly and tire. No other physical damage to the

truck is evident from the record. Likewise, the only apparent physical damage to

Yellott’s car that was established in the record was damage to its front passenger side

quarter panel. The impact knocked her car to the left and off of the roadway, where

it vaulted a roadside ditch and came to rest in a neighboring lot. Yellott’s airbags

deployed as a result of the accident. Bunch stopped the Sabine Pools truck in the

driveway that he was attempting to enter. Yellott argues in this appeal that the nature

of the physical damage to both vehicles is evidence of their vehicles’ respective

locations at the time of the crash and is, consequently, evidence of Bunch’s sole fault

in causing it.

Sabine Pools’ theory of how the accident occurred is based primarily on

the testimony offered by Bunch and a co-worker, Michael LeLeux (“LeLeux”), who

was riding as a passenger in the Sabine Pools truck at the time of the accident. Bunch

claims that Yellott was solely responsible for the accident because she crashed into

the truck as he was in the process of a lawful, left turn. According to his version of

events given at trial, he was able to see Yellott’s vehicle approaching the truck at a

distance of about one-half of a mile away, as he made his left turn. LeLeux, notably,

testified that he did not see any vehicles on the highway behind the truck prior to the

accident occurring. Bunch went on to testify that he saw Yellott speeding at

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approximately 90 miles per hour when he checked his mirrors. He opined that this,

in addition to her inattention to his turn signal, resulted in her crashing into the truck

as he made his turn.

Moreover, Bunch and LeLeux identified and measured skid marks on the

day after the accident, which began in the right lane of the highway and extended into

the left lane, concluding that they were those left by Yellott’s vehicle. Relying on

these witnesses’ identification of this set of skid marks as those having been made by

Yellott’s vehicle, although other skid marks were also noted at the scene, Sabine

Pools argues that this establishes that Yellott initiated an unsafe passing maneuver

after Bunch had already turned left and was driving into the driveway. This

negligence, they contend, places Yellott solely at fault in causing the collision.

The investigating state trooper at the scene, Ronald Mann (“Trooper

Mann”), reached different conclusions. He testified that during his investigation at

the scene, he observed multiple sets of skid marks and was able to ultimately

determine that those skids made by Yellott’s vehicle were located wholly in the left

lane of the highway. He determined that there was no yaw or other evasive action

apparently made by Yellott’s vehicle immediately prior to the accident. In addition,

he concluded that Yellott had not been traveling at a rate of 90 miles per hour at the

time of the impact, but opined, based upon calculations made from measurements of

skid marks taken at the scene on the day of the accident, that she had been traveling

at a rate of about 70 miles per hour while overtaking the Sabine Pools truck. As a

result of his findings, he testified that Yellott’s car was already completely in the left

lane of the highway when Bunch initiated his left turn, contrary to Bunch’s assertions,

and that Bunch crossed the centerline into the left lane of the highway, striking

Yellott’s vehicle, apparently unaware of her location.

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The parties offer differing opinions regarding the extent of any physical

and mental injuries suffered by Yellott as a result of the accident as well. In her

lawsuit, Yellott claimed damages for a nonexclusive list of bodily injuries, as well as

for mental injury. Sabine Pools attempted to minimize the credibility of any evidence

or argument presented, regarding injuries sustained by Yellott, based in large part on

the fact that Yellott denied being hurt at the scene and declined the need for any

onsite medical treatment or transportation to a medical facility. However, Yellott

contends that the onset of her pain began later that day and has continued virtually

uninterrupted since that time. She also testified to doing an uncharacteristic and

excessive amount of sleeping during the immediate days following the accident.

Hoffpauir corroborated Yellott’s testimony regarding the onset of her pain complaints

and her sleeping behavior in the days following the accident.

Yellott received treatment over the next few years with various

physicians for her alleged injuries. Evidence presented at trial reveals that after the

accident, she underwent chiropractic spinal manipulations and steroid injections and

was prescribed oral anti-inflammatory and arthritic medication and physical therapy

to address various diagnoses of whiplash syndrome, a knee contusion, cervical and

lumbar sprains, and pinched nerves in her right shoulder’s rotator cuff. As of the time

of trial, Yellott’s complaints consisted of memory loss problems (the onset of which

she dates back to the accident’s occurrence) and back and neck pain, in addition to

shoulder pain, which was contributing to right arm numbness and weakness. Surgery

has been recommended to Yellott to alleviate the arm and shoulder symptoms.

In describing her alleged mental injuries, Yellott testified that she

suffered cognitive losses, which have most notably affected her memory and have led

to a decline in her mood from a generally positive and independent nature to a more

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negative and dependent one. These changes, she contends, when coupled with her

other physical ailments, caused a change in her lifestyle from a highly active one to

an uncharacteristically sedentary existence. Yellott’s daughter and two co-workers

corroborated her testimony. Each of these witnesses testified that Yellott seemed

more limited in her physical abilities, that her mood and/or attitude had negatively

declined, and that she had a seemingly more difficult time recalling things.

Yellott asserts that the changes she experienced, when coupled with her

physical ailments, resulted in her finding it necessary to voluntarily resign from her

full-time position as a nurse in the medical telemetry unit of St. Patrick’s Hospital,

where she often worked as a charge (lead) nurse. Her personnel records at St.

Patrick’s Hospital failed to reflect any decline in her job performance, however.

Yellott resigned from her position at St. Patrick’s Hospital and obtained a full-time

job as a nurse at a small, 13-bed rehabilitation facility. This job, she testified,

required less physically and mentally demanding work, but offered less pay, did not

provide overtime opportunities, and offered fewer benefits than those she had

received from her last position. She lamented during trial that although this job

change was, in her opinion, necessary, it had caused and would continue to cause her

to lose vital nursing skills and to miss valuable learning and money-making

opportunities.

The defense’s expert, neuropsychologist Dr. William Black, found no

evidence of a closed head injury, but concluded that Yellott suffered from a

somatization disorder, which he described as the unconscious manifestation of

emotional problems through physical symptoms. Essentially, he opined that rather

than dealing with emotional stress or upsets, she suppresses them, resulting in an

unconscious manifestation of seemingly physical ills. In her case, he opined that the

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disorder was the likely result of an emotionally stressful past, which had included

multiple divorces and the death of a child in a car accident, leading him to surmise

that the trauma of the car accident at issue triggered the disorder. He diagnosed

Yellott’s pain complaints as “subjectively reported” chronic pain syndrome.

Yellott’s expert, on the other hand, neuropsychologist Dr. Charles

Robertson, disagreed with the somatization disorder diagnosis based upon the fact

that Yellott’s medical history did not reflect any indication of past behavior that is

generally supportive of such a diagnosis, and the fact that her complaints of physical

injury had been objectively verified by multiple physicians. Instead, Dr. Robertson

diagnosed Yellott with a cognitive disorder, which he contends was caused by a mild,

traumatic brain injury suffered in the car accident at issue. Yellott’s history of prior

head injuries was significant to Dr. Robertson’s diagnosis. In sum, he opined that as

a result of the car accident, she suffered a diminished capacity to multiprocess

information, when compared with her previous superior ability to do so, and believed

that her job switch was a proper method of adapting to the changes in her cognitive

functioning abilities. Dr. Robertson also resolved that Yellott suffered from chronic

pain syndrome, associated with trauma and psychological stress.

These opposing experts both recommended future psychological

counseling and/or treatment for Yellott, but differed as to the extent and manner of

treatment to be rendered.

III.

LAW AND DISCUSSION

Objection to Lay Testimony

Both sides to this case contend that the trial court committed error by

allowing inadmissible and prejudicial lay opinion testimony from various witnesses

8

over their respective motions in limine and objections made during trial. Yellott

contends that Bunch and LeLeux were able to voice opinions as to which skid marks

located at the scene were made by Yellott’s vehicle and, based on these unskilled

observations, were further allowed to testify as to Yellott’s allegedly negligent actions

immediately prior to the accident. Likewise, Sabine Pools argues that the trial court

improperly allowed the investigating state trooper, Trooper Mann, to testify that

Bunch was issued a citation at the scene of the accident and also to improperly offer

his opinion regarding Bunch’s fault in causing the accident.

Testimony by a witness who is not testifying as an expert can be offered

in the form of opinions and inferences, if such opinions and inferences are limited to

those which are (1) “[r]ationally based on the perception of the witness;” and are (2)

“[h]elpful to a clear understanding of his testimony or the determination of a fact in

issue.” La.Code Evid. art. 701.

Testimony by Sabine Pools Employees

Yellott contends that no proper foundation was laid for the introduction

of the opinion testimony offered by LeLeux and Bunch about the skid marks,

numerous markings, or about how the accident occurred. She argues that the error,

caused by allowing the jury to hear this testimony over counsel’s objections, resulted

in an erroneous allocation of fault to the parties. We agree with Yellott’s argument

that the trial court erred in allowing this testimony from Bunch and LeLeux.

While a lay witness may identify the existence of markings near an

accident scene, that witness does not possess the requisite level of skill and expertise

to assign skid markings to a particular vehicle nor can a lay witness reconstruct an

accident based on their subjective assignment of skid marks to a vehicle. Such

testimony goes beyond mere identification of markings and skid marks and crosses

9

the line into accident reconstruction. That is what occurred in this case. The opinions

and inferences of Bunch and LeLeux were not rationally based on their perceptions.

La.Code Evid. art. 701. Thus, it was legally impermissible to allow their testimony

on this issue. We conclude that this error tainted the fact-finding process and

prejudiced Ms. Yellott’s case. See La.Code Evid. art. 103(A).

Testimony by Trooper Mann

Sabine Pools argues that Trooper Mann “rendered highly prejudicial and

inadmissible opinion testimony, testifying that he issued a citation to Mr. Bunch after

he concluded where the vehicles were when the accident events began.” In further

argument, Sabine Pools contends that “[b]ecause the overwhelming evidence

supported a finding of no fault on the part of Mr. Bunch, it is clear that the jury’s

decision on liability was influenced by Trooper Mann’s inadmissible testimony.”

The question prompting the response at issue was as follows: “Why

were skid marks a focus of your investigation at the scene of this crash on Houston

River Road on August 21, 2000?” Following this question, the trial court advised

Trooper Mann, “Sir, in the presence of the jury, I want to instruct you that you are not

permitted to give opinions.” The trial court further advised the Trooper to “restrict

[his] answer to non-opinion answers.” Trooper Mann responded as follows:

In order to issue the citation of 32:79, improper lane
usage [the] investigating officer must determine where
each vehicle was at the time of the crash. To do that, you
need to determine if the vehicle in possession of each lane
was in that lane or in possession properly.

Mr. Bunch was westbound on 379, he was in
possession of the westbound lane of LA 379, or Houston
River Road. Ms. Yellott, to determine where Ms. Yellott
was at for the citation issued, I had to determine exactly
where she was at when Mr. Bunch began her [sic] turn and
caused Ms. Yellott to apply her brakes and start the skid
marks.

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In response to an objection posed by the defense, the trial court gave a

corrective instruction to the jury regarding the statement, wherein the court stated:

Folks, everybody now and then during the trial
something is said or done or exhibited that should not have
been said, done or exhibited. Remember I told you we
were going to decide this case on the evidence presented
here and the testimony permitted and in the document [sic]
evidence permitted. Okay? But every now and then, you
know, we’re humans, we’re far from perfect. So, there was
a mention made of quote “citation,” quote. That mention
is absolutely not relevant to this case and you are instructed
to disregard the mention of that word and erase it from
your memory. There have been no other proceedings in
this case other than the one that is ongoing.

The court, thereafter, polled the jury, inquiring as to whether they would be able to

put aside the mention of a citation, and each juror stated that he or she could do so.

While the trial court’s curative instruction on the issuance of a citation

may have cured this testimonial defect, it did not impact the error in the admission of

his testimony regarding the location of the vehicles immediately preceding the

impact.

We recognize that, in some instances, our appellate courts have affirmed

the admission of opinion testimony by police officers who are not experts, based on

their training, investigation, perception of the scene, and observation of physical

evidence. See Eldridge, 888 So.2d 365 (citing Cooper v. State Dep’t of Transp. &

Dev., 03-1847 (La.App. 1 Cir. 6/25/04), 885 So.2d 1211, writ denied, 04-1913 (La.

11/8/04), 885 So.2d 1142); Bozeman v. State Dep’t of Transp. & Dev., 34,430

(La.App. 2 Cir. 4/4/01), 787 So.2d 357, writ denied, 01-1341 (La. 6/29/01), 794

So.2d 813. Trooper Mann was not tendered as an expert in accident reconstruction

at trial. He possessed experience in accident investigation, as most troopers do.

However, this experience did not talismanically allow Trooper Mann to determine the

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location of the parties’ vehicles and the resulting cause of the accident. The

admission of this testimony was legal error.

Allocation of Fault

The propriety of the jury’s allocation of fault has been questioned on

appeal by both sides to this dispute. The applicable standard of review regarding the

factual consideration of respective degrees of fault is the manifest error or clearly

wrong standard. Clement v. Frey, 95-1119, 95-1163 (La. 1/16/96), 666 So.2d 607.

This well-known standard prohibits an appellate court from altering a fact finder’s

determinations, unless those determinations and findings have been found to be

clearly wrong upon review of the trial court record. While applying this standard,

great deference must be given to the fact finder’s results; however, the appellate court

is required to simultaneously remain mindful of its constitutional duty to review the

facts. La.Const. art. 5, §§ 5(C), 10(B); Clement, 666 So.2d 607; Ambrose v. New

Orleans Police Dept. Ambulance Serv., 93-3099, 93-3110, 93-3112 (La. 7/5/94), 639

So.2d 216. In doing so, should it be determined that the record supports a finding that

the fact finder was clearly wrong or that it abused its wide discretion, this court is

empowered to reallocate fault. Clement, 666 So.2d 607. The deference we continue

to owe to the fact finder, however, restrains us in any such reallocation, in that we are

allowed to adjust fault only to the extent of lowering or raising it to the highest or

lowest point, respectively, which would have been reasonably within the jury’s

discretion. Id.

In considering the fault of the parties involved in this accident, we must

examine the duty of care imposed upon each of them by law. The duties placed upon

left-turning and passing motorists are provided for by statute. First, a left-turning

motorist, such as Bunch, is required to make an initial determination that such a turn

12

can be safely made before doing so and must also give a continuous signal of the

intention to make the turn during not less than the last 100 feet traveled before

turning. La.R.S. 32:104. The statute prohibits a sudden stop or decrease in speed

without first giving this signal to any following vehicles. Id. Regarding a passing

motorist, such as Yellott, statutory law provides that when lawfully passing or

overtaking vehicles that are traveling in the same direction, the driver is to pass to the

left and at a safe distance away from the vehicle being passed. La.R.S. 32:73. Such

passing is prohibited unless the left side of the highway is clearly visible and free of

oncoming traffic for a sufficiently safe distance to allow the passing maneuver to be

completed in a safe manner. Id. In an auto collision case, a presumption exists that

the defendant’s negligence caused the accident, when it is shown that the defendant

made a left turn and crossed the centerline at the time of impact. Kilpatrick v.

Alliance Cas. & Reinsurance Co., 95-17 (La.App. 3 Cir. 7/5/95), 663 So.2d 62, writ

denied, 95-2018 (La. 11/17/95), 664 So.2d 406.

Based upon our review of the record and consideration of the statutory

duties of care imposed upon the respective drivers in this case, we find that the jury

was clearly wrong in finding Yellott and the Sabine Pools’ driver equally at fault in

causing the accident. The objective evidence, we find, dilutes the power of the self-

serving testimony of the Sabine Pools employees and dominates substantially in favor

of the plaintiff. The photographs of the vehicles in the accident provide a clear

picture of where the vehicles collided—at the passenger side front quarter panel of

Yellott’s vehicle and at the truck’s driver side mirror and tire. The objective evidence

clearly does not support Sabine Pools’ scenario of how the accident occurred.

To begin with, Trooper Mann testified that he identified skid marks

belonging to Yellott’s vehicle located wholly within the left lane of the highway,

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leaving him to rationally conclude that she was already in the left lane and in the

process of passing, prior to the collision occurring. He was also able to determine

from skid marks, that he found consistent with this scenario, that there was no yaw

or other such evasive action made by Yellott’s vehicle prior to impact.

A portion of the testimony offered by LeLeux offers support for Trooper

Mann’s conclusions regarding the location of the vehicles at the time of the accident.

LeLeux testified to hearing a “boom” and then the sound of skid marks being made

that appeared to be coming from behind him. One can reasonably infer that the noise

he refers to is the impact of the two vehicles and the resulting sound of skid marks

being made by Hoffpauir’s vehicle, which was following. It is reasonable to infer

from this testimony that if the “boom” referred to by LeLeux was the collision of the

two vehicles, the Yellott vehicle would not be skidding after being involved in an

impact with the Sabine Pools truck.

Additionally, Bunch’s testimony regarding the speed of Yellott’s vehicle

before the collision is not reasonably supported by the evidence in the record. For

one, Trooper Mann was able to estimate an approximate speed of Yellott and

Hoffpauir’s vehicles as 70 miles per hour. The speed was based on measurements

taken from the skid marks that Trooper Mann believed had been made by Hoffpauir’s

vehicle. Sabine Pools offered no evidence to challenge the accuracy of these

measurements and resulting calculations, other than Bunch’s testimony of how fast

the car appeared to be traveling, based on his personal observation of the approaching

car. Moreover, Bunch testified that Yellott’s car was about one-half of a mile behind

him as he began to negotiate his left turn into the private driveway. Even if his

testimony is to be taken as true, it would have taken 25.72 seconds for Yellott to

travel one-half of a mile to reach the truck, at a speed of 90 miles per hour. If this

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were the case, Bunch should have had time to see Yellott approaching and attempting

to pass before he began his turn, or alternatively, this amount of time should have

allowed ample time for him to complete this maneuver prior to the impact. It cannot

be ignored also that the impact of a vehicle traveling at 90 miles per hour, as Bunch

proposes, would have resulted in considerably more damage than that which was

suffered by the vehicles in this accident.

Based on the evidence presented in the record, we find, therefore, that

the jury clearly erred in its determinations and abused its discretion in its allocation

of fault. We have considered the following factors in assessing the nature of the

conduct of the parties and the extent of the causal relation between the conduct and

the damages claimed: (1) whether the conduct resulted from inadvertence or involved

an awareness of the danger, (2) how great a risk was created by the conduct, (3) the

significance of what was sought by the conduct, (4) the inferior or superior capacities

of the actors, and (5) any extenuating circumstances which might require the actors

to proceed in haste, without proper thought. See Watson v. State Farm Fire & Cas.

Ins. Co., 469 So.2d 967 (La.1985). As a result, we find that based on the facts

presented, the left-turning motorist, Bunch, breached his high duty of care and should

be assessed with 90% of the fault in causing this accident. We find Yellott 10% at

fault in causing the accident.

DAMAGES

Past, Present and Future Medical Expenses

In examining the jury’s award of past, present and future medical

expenses in this case, the record reflects that the jury was informed of the expenses

associated with Yellott’s care up until the time of trial. These expenses reflected

various doctor’s visits, medication and fees relating to testing. The expenses totaled

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$12,400.00. Accordingly, this figure for past medical expenses is supported by the

record and could have been appropriately included in the jury’s award for medical

expenses.

With regard to future care, the evidence supports a finding that Yellott

may require future surgery for her shoulder complaints, as well as psychological

counseling. Specifically, orthopedist Dr. David Steiner, provided testimony

regarding objective findings of fluid and changes in certain tendons in Yellott’s

shoulder, resulting in his recommendation that Yellott undergo a shoulder

decompression surgery. Based on Yellott’s history, he related her condition to the

accident at issue. In his estimation, the surgery could cost as much as $2,500.00, with

associated hospital expenses of $14,000.00. Thus, an award of $16,500.00 for this

surgery is supported by the record. Although Dr. Steiner testified about the

likelihood of the need for Yellott to undergo physical therapy after the surgery, no

evidence was presented regarding the cost of such therapy, and, therefore, this

expense is not supported by the record.

Regarding Yellott’s alleged mental injury suffered as a result of the

accident, Dr. Robertson offered testimony of estimated costs for his proposed

treatments. Dr. Robertson recommended one to two years of counseling to assist

Yellott’s recovery, explaining that weekly sessions would be necessary for the first

six or seven appointments. Thereafter, he recommended twice-monthly

appointments. Each session would cost $100.00. Given his proposed two-year time

frame, this testimony supports an award of $5,600.00.

No evidence was presented of estimated costs for Dr. Black’s

recommended course of treatment for Yellott. Consequently, there is no basis for

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which an award for his treatment could have been fashioned, and any such amount

awarded by the jury is unsubstantiated and speculative.

Our review of the record ultimately reveals support for the jury’s award

of $12,400.00 for past medical expenses; $16,500.00 for the shoulder surgery

recommended by Dr. Steiner; and $5,600.00 for the treatments recommended by Dr.

Robertson. As these are the only medical expenses supported by the record, the jury’s

award of $90,000.00 in this regard is error. The past, present and future medical

expenses award is reduced to that figure supported by the record, $34,500.00.

General Damages

Next, we examine the propriety of the jury’s failure to award general

damages in light of the award of damages for past, present and future medical

expenses. The supreme court in Green v. K-Mart Corp., 03-2495 (La. 5/25/04), 874

So.2d 838, held that should a fact finder award special damages, but fail to award

general damages, the appellate court must consider whether the award is so

inconsistent that it indicates an abuse of discretion. If the court finds such an

inconsistency, then a de novo review of the record is required. Id. As reflected

above, the record supports an award of $34,500.00 for medical expenses. Although,

we have found that the record supports a lower award for medical expenses than that

which was originally awarded by the jury, we find that the jury correctly determined

that Yellott suffered injuries causally related to the accident which required medical

attention and is still suffering an injury that may require medical attention in the

future. Failing to make a general damage award in such circumstances is an abuse of

discretion. See Green, 874 So.2d 838. In conducting a de novo review of the record,

it is determined that the extensive changes in Yellott’s physical, psychological, and

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emotional state, along with attendant changes in her life, mandate an award of

$100,000.00 for pain and suffering and loss of enjoyment of life.

Lost Wages

Regarding past lost wages, the evidence presented by Yellott resulted in

a jury award of $10,000.00 for lost wages. Yellott seeks an increase to account for

the pay and benefits differential between her position in the telemetry unit of St.

Patrick’s Hospital and her current position as a nurse at a rehabilitation facility. The

manifest error standard applies to our review of this jury award and requires us to

examine the facts or circumstances of the case in order to determine the adequacy or

inadequacy of the award. Thibeaux v. Trotter, 04-482 (La.App. 3 Cir. 9/29/04), 883

So.2d 1128, writ denied, 04-2692 (La. 2/18/05), 896 So.2d 31.

In this case, Yellott presented expert testimony which quantified her past

wage loss as $25,327.00, which was challenged by Sabine Pools’ expert, who

suggested actual lost wages incurred by Yellott as $23,189.00. The past wage loss

claim, we recognize, is not one based on conjecture or speculation and, considering

the evidence presented, find that the jury was clearly wrong in awarding past lost

wages in the amount of $10,000.00. Accordingly, we increase Yellott’s award for

past lost wages to $23,189.00.

Loss of Future Earning Capacity

Yellott contends further that the jury erred in failing to award damages

for loss of future earning capacity. She presented testimony of her loss of ability to

function in her role as a registered nurse in the telemetry unit at St. Patrick’s Hospital

after the accident, due to concerns over what she perceived to be memory and

cognitive functioning losses, coupled with her physical ailments. Yellott presented

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evidence regarding the specific wage losses suffered as a result of her change in

positions, which included loss of benefits, contributions to a retirement account and

loss of income. In light of the evidence presented at trial of physical and mental

ailments suffered by Yellott as a result of the accident, we find that the jury’s

rejection of Yellott’s claim for loss of future earning capacity is not supported by the

record. See Coco v. Winston Indus. Inc., 341 So.2d 332 (La.1977); see also Veazey

v. State Farm Mut. Auto. Ins., 587 So.2d 5 (La.App. 3 Cir. 1991).

The full indemnification for which an injured person, such as Yellott, is

entitled to under this state’s negligence principles includes damages for loss of future

earning capacity. See Coco, 341 So.2d 332. This decreased earning capacity is

determined by deducting the injured plaintiff’s earning ability after injury from her

earning ability immediately prior to the injury. Id. We find that the evidence

presented supports an award of $181,694.00 for loss of future earning capacity.

Court Costs

Based on the jury’s allocation of fault equally between the parties, the

trial court assessed the parties equally with costs of trial. This court, having found

that the jury’s allocation of fault was not reasonably supported by the record, has

reallocated the fault in this case such that Sabine Pools is now assessed with 90% of

the fault and Yellott with 10% of the fault. We accordingly reverse the trial court’s

equal assessment of court costs and cast the defendants and the plaintiff with their

proportionate share of respective court costs of 90% and 10%.

IV.

CONCLUSION

For the reasons assigned above, we find that the jury manifestly erred in

assessing fault equally between the parties and it therefore, allocate 90% of the fault

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to the defendants, Sabine Pools, Inc. and Underwriters Insurance Company, and 10%

of the fault to the plaintiff, M. Jayne Yellott. We further reverse and amend the

damages awarded by the jury to reflect general damages for past, present and future

pain and suffering and loss of enjoyment of life in the amount of $100,000.00;

damages for loss of future earning capacity in the amount of $181,694.00; damages

for past lost wages in the amount of $23,189.00; and damages of $34,500.00 for past,

present and future medical expenses. We further reassess 90% of the trial court costs

to the defendants and 10% to the plaintiff. The trial court’s judgment is affirmed in

all other respects. Costs of this appeal are assessed to Sabine Pools, Inc. and

Underwriters Insurance Company.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

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NUMBER 04-1342

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

M. JAYNE YELLOTT

VERSUS

UNDERWRITERS INSURANCE COMPANY AND SABINE POOLS, INC.

AMY, J., concurring in part, dissenting in part.

I respectfully dissent from that portion of the majority opinion finding that a

de novo review of the record is required and in the subsequent reapportioning of fault.

In my opinion, the record supports the jury’s assessment of fifty percent of fault to

each of the drivers. Further, I would affirm the jury’s award for past loss of earnings

and its denial of damages for future loss of earning capacity as again I find that the

record offers support for these determinations.

I agree with the majority that a reduction in the damages for past, present and

future medical expenses is warranted. I also agree that general damages must be

awarded, however I would award a lesser amount than does the majority.

For these reasons, I concur in part, dissent in part.