Charles D. Ezernack v. Progressive Security Ins. Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-1634

CHARLES D. EZERNACK, ET AL.

VERSUS

PROGRESSIVE SECURITY
INSURANCE COMPANY, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 212,400-C
HONORABLE F. RAE SWENT, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, J. David Painter and
James T. Genovese, Judges.

AFFIRMED AS AMENDED.

Ian A. MacDonald
600 Jefferson Street, Suite 1200
Lafayette, Louisiana 70502
COUNSEL FOR DEFENDANT/APPELLANT:
Farmers Insurance Exchange

V. Ross Cicardo
Post Office Drawer 11635
1725 MacArthur Drive
Alexandria, Louisiana 71315
COUNSEL FOR PLAINTIFFS/APPELLEES:
Charles D. Ezernack
Mildred Ezernack

GENOVESE, Judge.

Defendant, Farmers Insurance Exchange (“Farmers”), appeals the trial court’s

award of $40,000 for loss of consortium to Plaintiff, Mildred Ezernack. After

thorough consideration of the record and applicable law, we affirm but amend the

judgment of the trial court to reduce the award for loss of consortium to $25,000.

FACTS

On April 5, 2002, Plaintiff, Charles Ezernack, was involved in a two-car

collision on MacArthur Drive in Alexandria, Rapides Parish, Louisiana. Mr.

Ezernack was returning home from work in a vehicle owned by his employer, the City

of Alexandria, and was stopped at a red light when his vehicle was struck once from

the rear by a vehicle being operated by Brittney Menard. Mr. Ezernack, who was 61

years old at the time of the accident, sustained a torn rotator cuff injury to his right

shoulder that necessitated arthroscopic surgery on June 31, 2002.

The Plaintiffs, Charles and Mildred Ezernack, brought suit against the City of

Alexandria’s automobile liability insurer, Progressive Security Insurance Company,

and their own uninsured/underinsured motorist (“UM”) carrier, Farmers Insurance

Exchange. Mr. Ezernack sought damages for his personal injuries and Mrs. Ezernack

sought loss of consortium damages.

Prior to trial, Plaintiffs settled with Progressive Security Insurance Company.

On May 25, 2004, a bench trial was held against the UM carrier on the sole issue of

quantum. Written reasons for judgment were rendered on June 16, 2004, whereby

Charles Ezernack was awarded $65,000 in general damages and $34,708.80 for past

medical expenses. Mildred Ezernack was awarded $40,000 for loss of consortium.

Farmers appeals the trial court’s award of consortium damages.

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STANDARD OF APPELLATE REVIEW

Farmers contends that the evidence does not support the trial court’s award of

$40,000 in loss of consortium damages to Mrs. Ezernack and should either be set

aside or reduced.

In order to prove a claim for loss of consortium, a plaintiff must
prove three things: (1) the liability of the defendant, (2) his or her
spouse's damages, and (3) his or her consequent loss of consortium
damages. Peck v. Wal-Mart Stores, Inc., 96-645 (La.App. 3 Cir.
11/6/96), 682 So.2d 974. Loss of consortium is more than just a loss of
general overall happiness, it also includes love and affection, society and
companionship, sexual relations, the right of performance of material
services, the right of support, aid, and assistance, and felicity. Detraz [v.
Hartford Accident & Indemnity Co., 94-708 (La.App. 3 Cir. 12/7/94)],
647 So.2d 576. The trier of fact is given much discretion in awards for
loss of consortium and will not be overturned on appeal in the absence
of manifest error. Doucet v. Doug Ashy Bldg. Materials, Inc., 95-1159
(La.App. 3 Cir. 4/3/96), 671 So.2d 1148; Lonthier v. Northwest Ins. Co.,
497 So.2d 774 (La.App. 3 Cir.1986).

Creel v. St. Charles Gaming Co., 97-994, p. 11 (La.App. 3 Cir. 2/4/98), 707 So.2d
475, 481 (citing Bellard v. South Cent. Bell Tel. Co., 96-1426, p. 21 (La.App. 3 Cir.
8/27/97), 702 So.2d 695, 707).

After reviewing the record, we find the evidence does not support such a

substantial award for loss of consortium to Mrs. Ezernack.

Mrs. Ezernack testified that shortly after her husband’s accident, she began to

notice he could no longer perform certain menial tasks around the house that he was

accustomed to performing without difficulty and discomfort. Mr. Ezernack testified

that after sustaining the injury to his right shoulder he could no longer go grocery

shopping or clean the pool as he was accustomed to doing. In fact, the Plaintiffs

testified they hired a pool man due to Mr. Ezernack’s inability to lift. However, Mr.

Ezernack also testified that he returned to work only one week after his accident and

that he could still assist in chores, such as taking out the garbage, due to the fact that

he is left handed and his injury was to his right shoulder.

The record supports a finding that Mrs. Ezernack has sustained a loss of the

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services that Mr. Ezernack used to perform around the house. The record tends to

show that this is not a huge amount of work, but it is a loss nonetheless.

As to the effect of Mr. Ezernack’s injury on the marital relationship, Mr.

Ezernack testified that due to his discomfort, he would often awake during the night

which would, in turn, disturb Mrs. Ezernack’s sleep. This led to Mrs. Ezernack

sleeping in a separate bedroom. Though the trial court cites this fact as being a

determining factor in granting its considerable consortium award, both Mr. Ezernack

and Mrs. Ezernack testified that the reason they began to sleep in separate bedrooms

was their concern for the other’s restful sleep and comfort. Further, there was no

testimony that the Ezernack’s sexual relations were impaired or curtailed after the

accident.

Based upon the testimony presented, we must conclude that the trial court’s

award of $40,000 for loss of consortium is excessive. Therefore, we refer to similar

cases to determine a reasonable award based on circumstances comparable to the case

at bar.

The court of appeal affirmed the trial court’s award of $20,000 in loss of

consortium damages to the plaintiff’s former husband in Ditch v. State ex rel.

Department of Transportation and Development, 99-379 (La.App. 3 Cir. 11/24/99),

745 So.2d 1279, writ denied, 00-695 (La. 5/5/00), 761 So.2d 544. The plaintiff

sustained injuries in a motor vehicle accident and the evidence indicated that the

plaintiff’s husband failed to provide very much, if any, financial and emotional

support to plaintiff. In affirming the trial court’s award, the appellate court noted the

loss of consortium award was “generous.” Id. at 1290.

In Thrash v. Maerhofer, 99-375 (La.App. 3 Cir. 11/17/99), 745 So.2d 1238,

writ denied, 99-3578 (La. 2/18/00), 754 So.2d 966, the trial court granted the

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plaintiff’s motion for judgment notwithstanding the verdict and awarded $20,000 to

the plaintiff’s husband for loss of consortium. In that case, the plaintiff brought a

malpractice action against her chiropractor for negligent treatment which led to her

subsequently undergoing several lumbar surgeries. The appellate court affirmed the

trial court’s award stating that the testimony supported the husband’s claim that his

wife’s disability and residual pain impacted the marital relationship.

In LeBlanc v. Acadian Ambulance Service, Inc., 99-271 (La.App. 3 Cir.

10/13/99), 746 So.2d. 665, the plaintiff underwent several surgeries, for both back-

and neck-related problems, after sustaining injuries in a three-vehicle accident. The

testimony in that case supported the wife’s claims that the husband’s accident put a

strain on their marriage and diminished their social and sex life. The court of appeal

reversed the jury’s denial of consortium damages and awarded plaintiff’s wife

$20,000.

Considering the evidence of the effect of Mr. Ezernack’s injury on the

relationship with his wife, we find that an award of $25,000 is the highest amount

reasonably within the discretion of the factfinder under the circumstances of this case.

The judgment is amended accordingly.

CONCLUSION

For the foregoing reasons, the district court’s judgment is affirmed, as

amended, reducing the loss of consortium award to Mildred Ezernack to $25,000.

Costs of this appeal are assessed against the appellee, Mildred Ezernack.

AFFIRMED AS AMENDED.

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