Theodore Venissat v. St. Paul Fire & Marine Ins. Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-987

THEODORE VENISSAT, ET AL.

VERSUS

ST. PAUL FIRE & MARINE INS. CO., ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 03-5880
HONORABLE R. RICHARD BRYANT, JR., DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks,
Elizabeth A. Pickett, J. David Painter, James T. Genovese, Judges.

PICKETT, J., DISSENTS.

AFFIRMED AS AMENDED.

Thomas John Gayle
Ranier, Gayle & Elliot
P. O. Box 1890
Lake Charles, LA 70602-1890
COUNSEL FOR:
Plaintiffs/Appellants - Theodore and Vera Venissat

Todd M. Ammons
Stockwell, Sievert, Viccellio, Clements & Shaddock
P. O. Box 2900
Lake Charles, LA 70602
COUNSEL FOR:
Secondary Defendants/Appellants - St. Paul Fire & Marine Ins. Co.,
Calcasieu Parish Sheriff’s Dept. and Charles Ferguson

THIBODEAUX, Chief Judge.

Plaintiff, Theodore Venissat, was rear-ended by a sheriff’s deputy,

Charles Ferguson, while stopped at a traffic light. Mr. Venissat and his wife sued the

deputy and his employer, the Calcasieu Parish Sheriff’s Department (CPSD), as well

as the CPSD’s liability insurer, St. Paul Fire & Marine Insurance (St. Paul), for

damages sustained as a result of the collision. The Venissats appeal the jury’s special

damage awards of $25,000 in past medical expenses, $8,000 in past lost wages, and

the general damage award which totaled $45,000. Also, they contend that the trial

court committed reversible, legal error when it rejected their request for a jury

instruction that would allow the jury to consider whether the injured party was

entitled to the presumption that the accident caused his injuries.

The defendants appeal the trial court’s inclusion of St. Paul in the

judgment rendered in favor of the plaintiffs. They assert that St. Paul’s coverage is

inapplicable in this case because the policy has a self-insured retention clause that

requires the CPSD to pay for judgments or claims up to $250,000, which exceeds the

total damage award of $83,000.

We find that the jury erred in rendering its awards of special damages

and general damages; therefore, we amend the judgment to reflect past medical

expenses in the amount of $75,000; past lost wages of $32,000; and the pain and

suffering component of general damages in the amount of $60,000. The jury’s

awards of $5,000 for loss of enjoyment of life and $10,000 for mental anguish are

affirmed. Therefore, the total general damage award is $75,000.

I.

ISSUES

1. Did the trial court err when it rejected the plaintiffs’
request for a Housley v. Cerise jury instruction,

regarding a presumption that the accident caused
Mr. Venissat’s cervical spine injuries, even though
he had been diagnosed with pre-existing and
occasionally symptomatic, cervical degenerative
disc disease before the accident?

2. Were all of the plaintiff’s post-accident medical
expenses incurred for the treatment of accident-
related injuries, therefore entitling him to an increase
in the award for medical expenses?

3. Did the plaintiff establish that his entire claim for
past lost wages consisted of wages lost as a result of
accident-related injuries, therefore, entitling him to
an increase in his past lost wage award?

4. Was the jury’s general damage award of $45,000
abusively low, considering the plaintiff received
almost three years of medical treatment and
underwent a three-level discectomy after the
accident?

5. Was St. Paul erroneously cast in judgment for the
damages awarded to the plaintiffs since the CPSD’s
$250,000 self-insured retention provision of the St.
Paul policy was not exceeded by the damage award?

II.

FACTUAL BACKGROUND

On November 1, 2002, sixty-eight year old plaintiff, Theodore Venissat,

was rear-ended by Deputy Charles Ferguson’s patrol car as he sat in his stopped

vehicle at a red traffic light. Mr. Venissat refused treatment at the scene, but sought

medical treatment a few days later for the overall body soreness and pain in his neck

and shoulders that manifested in the immediate days following the accident. For

approximately the next four months, his family physician, Dr. Kevin Schlamp, treated

him conservatively with pain medication, anti-inflammatory medication, and physical

therapy for a perceived neck sprain and/or strain.

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Because his symptoms continued to recur, on April 7, 2003, Dr. Schlamp

ordered an MRI to further investigate the source of his problems. The MRI showed

that a herniated disc was protruding into the spinal canal at the C4-5 level. Dr.

Schlamp also viewed deterioration in the cervical spine, which he attributed to

degenerative disc disease, at the C5-6 and C6-7 levels. Dr. Schlamp had previously

diagnosed this degenerative disc disease with arthritic changes in 1996, at which time

he also first noted complaints from Mr. Venissat of symptoms that were suggestive

of a possible cervical disc herniation. It was not until the MRI was taken in 2003,

however, that he objectively determined the existence of a disc herniation at C4-5.

He also opined at that time that the herniation was caused by the 2002 rear-end

collision. Dr. Schlamp referred Mr. Venissat to orthopedic surgeon, Dr. Dale

Bernauer of Lake Charles, Louisiana, for further evaluation and treatment.

Dr. Bernauer evaluated Mr. Venissat and recommended that he undergo

a cervical discectomy and fusion at the levels C4-7, having found herniations at all

three levels. Mr. Venissat sought a second opinion regarding the recommendation of

surgery with neurosurgeon, Dr. Thomas Bertuccini of Lafayette, Louisiana. Dr.

Bertuccini met with and evaluated Mr. Venissat on January 14, 2004. Based on his

evaluation and review of the MRI results, he agreed that there was a cervical disc

herniation at the C4-5 level. He also diagnosed bilateral foraminal stenosis

(narrowing of the cervical disc space) due to degeneration of the discs at the lower

levels. Nevertheless, Dr. Bertuccini opined that surgery was not immediately

necessary due to his impression, after conducting additional testing, that no

neurologic deficits were being caused by these conditions. Instead, Dr. Bertuccini

recommended continued conservative treatment and a six-month follow-up

evaluation.

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Mr. Venissat had been medically advised about the risks of further

injury, particularly paralysis, that could arise if the herniation was not surgically

addressed. He consequently sought a third opinion with neurosurgeon, Dr. Homero

Anchondo of Houston, Texas. Dr. Anchondo evaluated Mr. Venissat about three

months later, on April 1, 2004, and opined that surgery, sooner rather than later,

would be necessary to alleviate Mr. Venissat’s symptoms and to reduce or eliminate

any risk of spinal cord injury that could be caused by the herniated disc. Finding also

that significant deterioration had occurred in the cervical spine at the lower levels, he

agreed with Dr. Bernauer’s recommendation for a three-level fusion. Mr. Venissat

agreed to move forward with the surgery. On May 14, 2004, Dr. Anchondo

performed a discectomy and spinal fusion surgery at the C4-7 levels. Following what

was deemed by his doctors to have been a successful surgery, it took Mr. Venissat

approximately a year to recover. He was left with a limited range of motion in the

neck as a result of the fusion.

As stated earlier, at the time of the car accident, Mr. Venissat was sixty-

eight years old and was actively employed at a local refinery as a security guard,

although he had previously retired from his employer of forty-three years. After the

car accident, he continued to work until the day before the May 14th surgery; by that

time he was seventy years old. About a year after his surgery in the Spring of 2005,

he was released to return to work by Dr. Anchondo; however, Mr. Venissat chose to

resign to reenter retirement.

The jury found that Mr. Venissat sustained injuries as a result of the

November 1, 2002 rear-end collision and then awarded the following general

damages, totaling $45,000: pain and suffering, $25,000; permanent disability,

$5,000; loss of enjoyment of life, $5,000; and mental anguish, $10,000. He was

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awarded the following special damages by the jury: past medical expenses, $25,000;

and loss of past wages, $8,000. Mrs. Venissat was awarded $5,000 in loss of

consortium damages. The total damage award was $83,000.

Mr. and Mrs. Venissat have appealed the general damage and special

damage awards, arguing that an increase is justified by the evidence produced at trial.

They also allege that the trial court committed reversible, legal error by failing to

provide the jury with the instruction of law, as set forth in Housley v. Cerise, 579

So.2d 973 (La.1991), which states that a person is entitled to a presumption that a

disability resulted from an accident, if the person was in good health prior to the

accident, but thereafter continuously manifests a disabling injury, and the medical

evidence reasonably supports the possibility of such a causal link. They contend that

the omission of this instruction contributed to the low damage awards rendered by the

jury.

The defendants collectively disagree and argue that, based on the

evidence presented, the jury did not err in rendering the special or general damage

awards, nor did the trial court err in failing to provide a Housley instruction to the

jury. They argue that the majority of Mr. Venissat’s medical treatment, including

portions of the surgery, addressed pre-existing degenerative conditions found at the

C5-7 levels of his spine that were not caused or aggravated by the accident. The

defendants contend that Mr. Venissat’s actual injuries caused by the accident were

minor, soft tissue injuries that resolved within four months after the collision. They

base this on medical records showing that Mr. Venissat was initially released from

Dr. Schlamp’s care in February 2003, after he expressed a successful resolution to his

neck and scapular pain as a result of treatment with prescribed medication and

physical therapy.

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Consequently, the defendants argue that the jury reasonably rejected the

requests for full compensation for the three-level cervical surgery and all other “over-

treatment” of Mr. Venissat’s neck, as well as the request for payment of all of his

claimed lost wages accrued post-surgery. The defendants speculate that these awards

reflect the jury’s intent to only compensate the plaintiff for approximately one-third

of the damages sought, i.e., those which they believed were likely caused by the car

accident. The defendants also contend that the general damage award set by the jury

is consistent with this rationale and, therefore, is also not abusively low.

In answer to the appeal, the defendants also allege that the trial court

erred in rendering judgment against St. Paul. They argue that St. Paul’s liability

coverage was not triggered in this case because the self-insured retention clause of

its policy with the CPSD requires the CPSD to pay up to $250,000 in damages before

St. Paul’s obligation arises. Because the total damage award rendered by the jury was

$83,000, they contend that it was error for the trial court to hold St. Paul liable.

The plaintiffs, on the other hand, contend that St. Paul was properly

named in the judgment. They assert that they satisfactorily carried their burden of

proving that St. Paul had in effect a policy of liability coverage issued to the CPSD

for the damages sustained, while no evidence was submitted during trial to establish

any limitations on this coverage. Accordingly, they argue that the trial court did not

err in rendering judgment against St. Paul as well.

III.

LAW AND DISCUSSION

Omission of Jury Instruction

The plaintiffs sought a jury instruction on the presumption of causation

that is set forth in Housley v. Cerise, 579 So.2d 973 (La.1991), which states:

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[a] claimant’s disability is presumed to have resulted from
an accident, if before the accident the injured person was
in good health, but commencing with the accident the
symptoms of the disabling condition appear and
continuously manifest themselves afterwards, providing
that the medical evidence shows there to be a reasonable
possibility of causal connection between the accident and
the disabling condition.

Id. at 980 (quoting Lucas v. Ins. Co. of N. America, 342 So.2d 591, 596 (La.1977)).

The special jury charge that was requested by the plaintiffs is a direct quote of this

language. According to the record, the trial judge denied the request for the inclusion

of the charge in the jury instructions and stated his reason for doing so as follows:

[I] felt there was evidence showing that this
defendant [sic] not only was he not in good health at the
time but the bad health that he suffered was similar to the
condition in which we’re all here this week, a neck
condition, and because of that I don’t think the charge
would be appropriate.

The record reveals that the trial court is referring to evidence consisting

of medical testimony and medical and employment records documenting Mr.

Venissat’s history of a degenerating and previously injured neck/cervical spine that

was occasionally symptomatic prior to the accident at issue. The record shows that

in 1989 Mr. Venissat suffered a work-related fall for which he complained of injury

to his neck, middle back, and left shoulder. In 1992, Mr. Venissat stated on a

periodic medical questionnaire given at his place of employment that he was not in

good health due to a “neck problem.” In 1996, Mr. Venissat reported that he had a

bicycle accident while at work and that he sustained injury to his neck as a result.

The record is unclear regarding the full extent of the treatment he received for the

complaints of pain and injury that occurred before 1996. The record does reveal that

in 1996 he received treatment from his family physician, Dr. Schlamp, for complaints

of neck pain and “tingling” down his right arm to his index and middle

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fingers—which are similar to some of his complaints asserted after the 2002 accident

that is at issue in this case—resulting in a diagnosis of an arthritic neck and loss of

joint space at C6-7 and degenerative changes from C4-7 in Mr. Venissat’s cervical

spine.

Despite these facts, the plaintiffs contend that the trial court erroneously

concluded that this history precluded the inclusion of the Housley charge in the

instructions to the jury. They assert that any symptoms associated with the pre-

existing degenerative conditions or prior injuries had resolved years before the 2002

collision occurred. They contend that Mr. Venissat was not incapacitated by these

pre-existing conditions or those prior accidents, as is particularly evidenced by the

fact that he was able to maintain perfect attendance for the last twelve years of his

employment before retiring. The plaintiffs argue that, consequently, Mr. Venissat

was a “healthy” person, as that term relates to the presumption of causation at issue.

Moreover, the plaintiffs argue that the trial court’s decision to reject the

instruction on the presumption of causation constituted legal error because the burden

was never properly placed on the defendants to prove to the jury that some cause,

other than the accident, existed for Mr. Venissat’s spinal injuries and symptoms.

They contend that the jury was inadequately instructed, which resulted in its failure

to properly compensate them for all of the injuries, medical treatment, and lost wages

that were necessitated by the accident. For these reasons, they assert that the trial

court’s ruling constitutes a reversible error of law, requiring this court to undertake

a de novo review of the facts.

The question of whether Mr. Venissat was entitled to have this

instruction on causation presented to the jury is a question of fact that cannot be

disturbed on appeal absent a finding of manifest error. Viviano v. Progressive Sec.

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Ins. Co., 05-125 (La.App. 3 Cir. 1/11/06), 920 So.2d 313, writ denied, 06-359 (La.

4/28/06), 927 So.2d 290 (citing Seitz v. Scofield, 01-1295 (La.App. 5 Cir. 2/26/02),

812 So.2d 764, writ denied, 02-0861 (La. 5/24/02), 816 So.2d 855). A finding is

manifestly erroneous if no reasonable factual basis exists for the finding in the record.

Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). An important caveat is that

when there are two permissible views of the evidence, the fact finder’s choice

between them cannot be deemed manifestly erroneous. Canter v. Koehring Co., 283

So.2d 716 (La.1973).

If the appellate court finds, however, that manifest error was committed,

this error will require a de novo review, if the court finds that this omission was so

prejudicial that it materially affected the result and deprived a party of substantial

rights. Chaisson v. Avondale Indus., Inc., 05-1511 (La.App. 4 Cir. 12/20/06), 947

So.2d 171, writ denied, 07-411 (La. 4/5/07), 954 So.2d 145 (citing Lam v. State Farm

Mut. Auto Ins. Co., 03-180 (La.App. 4 Cir. 4/1/05), 901 So.2d 559, rev’d on other

grounds, 06-2361 (La. 11/29/06), 946 So.2d 133). The fourth circuit explained this

analysis as follows:

By using the manifest error standard, the court presumes
that the jury utilized the correct law. Rathey v. Priority
EMS, Inc., 04-0199, p. 27 (La.App. 4 Cir. 1/12/05), 894
So.2d 438, 458, reh’g denied, (2/24/05), writ denied,
05-0789 (La. 5/6/05), 901 So.2d 1107, writ denied,
05-0802 (La. 5/6/05), 901 So.2d 1108.

The appellate court will conduct a de novo review ‘if
the jury applied the incorrect law because of erroneous jury
instructions’ and it ‘could have affected the jury’s
decision.’ Id. at pp. 27-28, 894 So.2d at 459. De novo
review is used only if the jury charges precluded ‘the jury
from reaching a verdict based on the law and the facts.’
Jones v. Liberty Mut. Ins. Co., 568 So.2d 1091, 1094
(La.App. 5th Cir. 1990). The reviewing court considers
‘the circumstances of the case and the instructions as a
whole, and should measure the “gravity or degree of
error.”’ Rathey, 04-0199, p. 28, 894 So.2d at 459, quoting

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Jones v. Liberty Mut. Ins. Co., 568 So.2d 1091, 1094
(La.App. 5th Cir. 1990). ‘Ultimately, the determinative
question is whether the jury instructions misled the jury to
the extent that it was prevented from dispensing justice.’
Nicholas v. Allstate Ins. Co., 99-2522, p. 8 (La. 8/31/00),
765 So.2d 1017, 1023.

Chaisson, 947 So.2d at 190.

Jury instructions are adequate when they fairly and reasonably denote

the issues and provide the correct principles of law for the jury to apply to those

issues. Fleming v. Acadian Geophysical Servs., Inc., 02-264 (La.App. 3 Cir.

10/2/02), 827 So.2d 623, writ denied, 02-2717 (La. 1/10/03), 834 So.2d 440. In other

words, the trial court must give jury instructions that properly reflect the law

applicable to the facts of the particular case. Brown v. Diamond Shamrock, Inc.,

95-1172 (La.App. 3 Cir. 3/20/96); 671 So.2d 1049. This court explained in Iorio v.

Grossie, 94-846, pp. 2-3 (La.App. 3 Cir. 10/4/95); 663 So.2d 366, 368-69:

A trial court should give all requested instructions
that correctly state the law, provided that they are material
and relevant to the litigation. Courts are not obligated to
give the specific jury instructions submitted by the parties,
but omission of a requested instruction containing an
essential legal principal [sic] may constitute reversible
error. A court has fulfilled its duty if its instructions fairly
and reasonably point out the issues presented by the
pleadings and evidence and provide the principles of law
necessary to resolve those issues.

(Citations omitted).

First, applying the manifest error standard of review, we find that based

on the evidence presented at trial, the trial court did not err by rejecting the Housley

instruction. The facts that were presented could reasonably lead one to conclude that

Mr. Venissat was not in good health before the accident, a finding that is sufficient

to preclude the application of the presumption in this case, and to preclude the

inclusion of the charge in the jury instructions. In summary, the evidence showed

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that Mr. Venissat suffered from pre-existing degenerative changes in his cervical

spine that were symptomatic from time-to-time prior to the 2002 accident. The record

reflects that he was involved in prior accidents affecting his neck and/or cervical

spine and shoulders and that he raised complaints and/or sought treatment multiple

times in the years preceding the accident for pain and radiculopathy believed to have

been generated by those pre-existing conditions and/or earlier trauma. In light of

these facts, we cannot say that the trial court manifestly erred by finding that Mr.

Venissat was not in good health, nor in consequently, rejecting the Housley

instruction as inapplicable to this case. A discussion of whether legal error occurred

and a de novo review is necessary is, therefore, moot.

Special Damages

Past Medical Expenses

Past medical expenses are special damages that are capable of being

determined with reasonable mathematical certainty and, as such, they must be proven

by the person seeking them by a preponderance of the evidence. Chatelain v.

Rabalais, 04-28 (La.App. 3 Cir. 7/7/04), 877 So.2d 324. The plaintiff seeking to

recover past medical expenses must first show, through medical evidence, the

existence of the claimed injuries and a causal connection between the injuries and the

accident of which he or she is complaining. Wright v. Gen. Aviation Co., 04-772

(La.App. 5 Cir. 11/30/04), 889 So.2d 1115. When claims for the accrued medical

expenses are supported by medical bills, these expenses should be awarded unless

there is contradictory evidence or reasonable suspicion that the bills are unrelated to

the accident. Brandao v. Wal-Mart Stores, Inc., 35,368 (La.App. 2 Cir. 12/19/01),

803 So.2d 1039, writ denied, 02-493 (La. 4/26/02), 814 So.2d 558. A jury manifestly

errs if the victim has proven his or her medical expenses by a preponderance of the

11

evidence, and it fails to award the full amount of the medical expenses proven. Gunn

v. Robertson, 01-347 (La.App. 5 Cir. 11/14/01), 801 So.2d 555, writs denied, 02-170,

02-176 (La. 3/22/02), 811 So.2d 942 (citing Revel v. Snow, 95-462 (La.App. 3 Cir.

11/2/95), 664 So.2d 655, writ denied, 95-2820 (La. 2/2/96), 666 So.2d 1084); see

also, Lasha v. Olin Corp., 625 So.2d 1002 (La.1993).

In this case, the plaintiffs introduced medical bills establishing that a

total of $74,971.77 in medical expenses for treatment and surgery were incurred after

the rear-end collision. The defendants, however, argued to the jury that these

expenses were excessive and should be discounted because that amount included

costs of treatment for unrelated, previously existing degenerative cervical spine

conditions. Ultimately, the jury awarded $25,000, an amount that is approximately

one-third of the total amount of past medical expenses sought.

It is clear based on the testimony and evidence presented in the record

that Mr. Venissat suffered from cervical spine problems both before and after the

accident. The problem faced by the jury, then, was determining whether all of the

problems of which Mr. Venissat complained were exacerbated by the accident. We

can only speculate as to the jury’s specific findings regarding which alleged injuries

and treatment it believed were a consequence of the accident, but it is apparent that

the jury intended to only compensate the plaintiffs for a portion of Mr. Venissat’s

injuries and treatment. We find, however, that this discounting of the sought-after

medical expenses is not reasonably supported by the record.

“In order to reverse the findings of a jury, an appellate court must find

from the record that a reasonable factual basis does not exist for the finding or that

the finding is clearly wrong.” Bernard v. Guilbeau,, 05-844 (La.App. 3 Cir. 2/1/06),

922 So.2d 683, 687 (citing Vaughn v. Progressive Sec. Ins. Co., 03-1105 (La.App. 3

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Cir. 3/2/05), 896 So.2d 1207). In this case, the record shows that testimony was

offered by Mr. Venissat and his wife, establishing that over the course of the

immediate days following the collision, he developed pain in the cervical spine and

shoulder, for which he sought treatment with his primary care physician, Dr.

Schlamp, resulting in an ultimate diagnosis of a disc herniation. Although the

plaintiffs contend that Mr. Venissat was already injured before the accident occurred,

we did not find that there was any proof offered by defendants, on the other hand,

establishing that he was actively suffering from, or being treated for, any neck or

cervical pain prior to the collision. Likewise, they failed to provide any definitive

evidence of the existence of a cervical disc herniation before the 2002 collision.

What the defendants, instead, established was that Mr. Venissat had been

diagnosed with degenerative disc disease in 1996, for which he received conservative

treatment, and that in 1996 and prior to that time, he had also suffered cervical spine

injuries and related symptoms for which he had also received treatment. They also

introduced medical records establishing that Dr. Schlamp had been suspicious of the

possible existence of a cervical disc herniation or of Mr. Venissat’s susceptibility to

the occurrence of the condition as early as 1996.

Considering all of this, we find that these facts provide reasonable

support for the conclusion that, more likely than not, the accident caused all of Mr.

Venissat’s complained of injuries after the 2002 collision either by directly creating

new injuries or aggravating his pre-existing conditions. This conclusion is supported

by the testimony of Mr. Venissat’s family physician, Dr. Schlamp, and his surgeon,

Dr. Anchondo, who both opined that the accident caused the herniation and likely

aggravated and made symptomatic those previously existing degenerative and

arthritic conditions in his cervical spine. We do recognize that Dr. Bertuccini, who

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examined Mr. Venissat once, found it impossible to render an opinion as to whether

the herniation at C4-5 or the other conditions were caused by or made symptomatic

by the accident, considering Mr. Venissat’s medical history, and that Dr. Bernauer,

who examined Mr. Venissat twice, did not offer an opinion in this regard.

We note that the diagnosis of a cervical disc herniation at C4-5 was

agreed upon by all three orthopedic surgeons who evaluated Mr. Venissat as well as

the existence of degenerating discs below the area of the herniation. The only issue

amongst them was whether the surgery was a needed treatment at the time. Two of

those orthopedic surgeons, Drs. Bernauer and Anchondo, opined that Mr. Venissat

would benefit from surgery, while Dr. Bertuccini solely disagreed as to the necessity

of the surgery. However, he added that he would maintain this opinion as to the need

for surgical intervention so long as Mr. Venissat’s neurological exams remained

normal and he refrained from engaging in heavy activity.

As referenced earlier, proof of a causal relationship between the accident

and any claimed resulting injuries must be established by a preponderance of the

evidence:

In a personal injury suit, plaintiff bears the burden of
proving a causal relationship between the injury sustained
and the accident which caused the injury. American
Motorist Insurance Co. v. American Rent-All, Inc., 579
So.2d 429 (La.1991); Aucoin v. State Farm Mut. Auto. Ins.
Co., 505 So.2d 993 (La.App. 3d Cir.1987); Richard v.
Walgreen’s Louisiana Co., 476 So.2d 1150 (La.App. 3d
Cir.1985). Plaintiff must prove causation by a
preponderance of the evidence. Morris v. Orleans Parish
School Bd., 553 So.2d 427 (La.1989). The test for
determining the causal relationship between the accident
and subsequent injury is whether the plaintiff proved
through medical testimony that it is more probable than not
that the subsequent injuries were caused by the accident.
Mart v. Hill, 505 So.2d 1120 (La.1987); Villavaso v. State
Farm Mut. Auto. Ins. Co., 424 So.2d 536 (La.App. 4th Cir.
1982).

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Maranto v. Goodyear Tire & Rubber Co., 94-2603, 94-2615, p. 3 (La. 2/20/95), 650

So.2d 757, 759. We find that the plaintiffs successfully carried this burden.

A tortfeasor’s responsibility for his actions includes all of the natural and

probable consequences of his tortious conduct. Perniciaro v. Brinch, 384 So.2d 392

(La.1980). In a situation in which the tortfeasor aggravates a pre-existing injury, he

or she is required to compensate the victim for the full extent of the aggravation. Id.

“The defendant’s liability for damages is not mitigated by the fact that the plaintiff’s

pre-existing physical infirmity was responsible in part for the consequences of the

plaintiff’s injury by the defendant.” Lasha, 625 So.2d at 1005. Moreover, a

tortfeasor must pay for medical treatment of his victim, even over treatment or

unnecessary treatment, unless such treatment was incurred in bad faith. Gunn, 801

So.2d 555.

Here, we find that the medical evidence and facts presented proved that

it is more probable than not that the accident caused Mr. Venissat’s disc herniation

and resulted in aggravation of his pre-existing conditions. The plaintiffs established

with medical bills the amount of the expenses incurred to treat these injuries and no

evidence of bad fath in incurring these expenses was presented at trial. Therefore, we

amend the jury’s award of past medical expenses and render an award of $75,000,

commensurate with those expenses established in the record.

Past Lost Wages

At trial, Mr. Venissat’s expert economist, Dr. Randy Rice, provided a

calculation of lost wages totaling $32,000 to the date of trial, adjusted for inflation.

The jury, on the other hand, awarded only $8,000 in past lost wages. Defendants

argue on appeal that this award is not manifestly erroneous and is consistent with the

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jury’s apparent conclusion that not all of Mr. Venissat’s medical treatment, and

hence, lost wages incurred after surgery, were a consequence of the subject accident.

To recover for actual wage loss, a plaintiff must
prove the length of time missed from work due to the tort
and must prove past lost earnings. Craven v. Universal
Life Ins. Co., 95-1168 (La.App. 3 Cir. 3/6/96); 670 So.2d
1358, writ denied, 96-1332 (La. 9/27/96); 679 So.2d 1355.
Past lost earnings are susceptible of mathematical
calculation from evidence offered at trial. Id. An award
for past lost earnings requires evidence as reasonably
establishes the claim, which may consist of the plaintiff’s
own testimony. Id. An award for past lost earnings is not
subject to the much-discretion rule when it is susceptible of
mathematical calculation from documentary proof.
Mormon v. Stine, Inc., 95-615 (La.App. 3 Cir. 11/2/95);
664 So.2d 600.

Mathews v. Dousay, 96-858, p. 15 (La.App. 3 Cir. 1/15/97), 689 So.2d 503, 513. Mr.

Venissat proved his claim for past lost wages. He established that he was not released

to return to work after the cervical surgery until approximately one year thereafter.

Also, his expert economist submitted calculations of the total lost wages for that time

period in the amount of $32,000. This evidence of lost wages was not contradicted

by the defendants. There is no evidence in the record to support an award of only

$8,000 in past lost wages to Mr. Venissat. Again, the jury manifestly erred in

discounting this award in attempts to only compensate the plaintiff for the past lost

wages it believed were caused by accident-related injuries. The past lost wage award

of $8,000 is, accordingly, amended to $32,000, as established by the evidence

presented during the trial.

General Damages

A jury possesses vast discretion in its assessment of general damages,

such that upon appellate review such awards may only be disturbed if there has been

a clear abuse of that discretion. Theriot v. Allstate Ins. Co., 625 So.2d 1337

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(La.1993) (citing Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1977)). “[I]t is

only after articulated analysis of the facts discloses an abuse of discretion, that the

award may on appellate review be considered either excessive or insufficient.” Id.

at 1340 (quoting Reck v. Stevens, 373 So.2d 498, 501 (La.1979)). The facts submitted

as evidence must be reviewed by the appellate court in the light most favorable to the

judgment rendered. Id. (citing Arceneaux v. Domingue, 365 So.2d 1330 (La.1978)).

After reviewing the record, we find that the award for pain and suffering

of $25,000 is below that which a reasonable trier of fact could assess in such a case.

The jury verdict form reflected an affirmative finding by the jury that Mr. Venissat

was injured as result of the rear-end collision. However, as discussed earlier, the jury

consistently calculated special damage awards, and we believe also, a general damage

award, that reflects the conclusion that Mr. Venissat suffered a “short-lived” soft-

tissue injury as a result of the accident. The medical evidence does not reasonably

support such a conclusion, but rather shows that the injured plaintiff was an

individual in his late 60s who suffered from a degenerating cervical spine, resulting

in him being more susceptible to the injuries and pain that, not coincidentally,

developed after the accident. The evidence is undisputed that within the two days

following the accident, Mr. Venissat had developed chronic pain and radiculopathy,

ultimately believed to have been caused by trauma from the accident. The record also

reflects that Mr. Venissat only achieved relief of his chronic pain and radiculopathy

symptoms after he had undergone the three-level cervical discectomy and

fusion—approximately two years after the accident occurred.

Prior to undergoing the surgery, Mr. Venissat testified that the chronic

pain affected his sleep, his disposition, and overall quality of life. Mrs. Venissat

confirmed that she observed these negative changes in her husband until his problems

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were resolved by the surgery. Moreover, the record reflects that although Mr.

Venissat was able to continue to work after the collision, he and his wife testified that

he did so while managing his pain with medication and physical therapy, neither of

which provided him with lasting results. Considering all of this, and specifically

noting the medical assessments that were made in this case, the age of the injured

plaintiff, and the residual affects of the injury and subsequent cervical fusion, we

amend the prior award of $25,000 for pain and suffering and raise it to the lowest

reasonable amount of $60,000. The quantum of all other claims comprising the total

general damage award—$5,000 for loss of enjoyment of life and $10,000 for mental

anguish—are affirmed. Therefore, the total general damage award is $75,000.

The Self- Insured Retention Clause

It is undisputed that at the time of the November 1, 2002 accident

involving Mr. Venissat and Deputy Ferguson, St. Paul had in effect a policy of

automobile liability insurance issued to the CPSD. Deputy Ferguson was driving a

CPSD patrol car and was on-duty when, while reaching down for his radio, he rear-

ended Mr. Venissat. The defendants do not dispute that Deputy Ferguson was at fault

and caused the collision.

The St. Paul policy included a self-insured retention endorsement of

$250,000 per accident. After the jury’s verdict, totaling $83,000, was rendered, the

trial court entered a judgment, naming Deputy Ferguson, the CPSD, and St. Paul as

the parties liable for the payment of those damages, with legal interest from the date

of filing, along with court costs. The defendants challenged St. Paul’s inclusion in

the judgment during a post-trial hearing before the trial court. Their argument was

rejected by the trial court, which found that the evidence presented at trial established

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that the St. Paul policy provided coverage for the accident, but that no evidence

limiting this coverage had been introduced.

We find that the trial court did not manifestly err when it named St. Paul

as a liable defendant in the judgment. The plaintiffs bore the burden of establishing

that the policy coverage applied. Ho v. State Farm Mutual Auto. Ins. Co., 03-480

(La.App. 3 Cir. 12/30/03), 862 So.2d 1278. The burden rested with the insurer, St.

Paul, however, to establish the existence of any policy limits or exclusions. Tunstall

v. Stierwald, 01-1765 (La. 2/26/02), 809 So.2d 916. We find that the plaintiffs

satisfactorily carried the burden of establishing coverage for their damages by

introducing into evidence the automobile liability policy issued by St. Paul to the

CPSD, without objection, and by eliciting the testimony of the CPSD’s risk manager,

who testified that the terms of the policy provided coverage for the damages caused

in the accident at issue. However, we find that the defendants did not satisfy their

burden of showing any applicable limitations on this coverage. Accordingly, we find

no error in the trial court’s designation of St. Paul as a judgment-debtor.

IV.

CONCLUSION

For the foregoing reasons, we amend the jury verdict for past medical

expenses, past lost wages, and pain and suffering awarded to Theodore and Vera

Venissat to reflect the following damages: past medical expenses, $75,000; past lost

wages, $32,000; and pain and suffering, $60,000. The jury’s awards of $5,000 for

loss of enjoyment of life and $10,000 for mental anguish are affirmed. Therefore, the

total general damage award is $75,000. All other aspects of the judgment are

affirmed. Costs of this appeal are assessed to defendants, St. Paul Fire & Marine

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Insurance Company, Charles Ferguson, and the Calcasieu Parish Sheriff’s

Department.

AFFIRMED AS AMENDED.

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