John Pomier v. Robert Moreland

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

06-1117

JOHN POMIER

VERSUS

ROBERT MORELAND, ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 88003-D
HONORABLE WILLIAM D. HUNTER,
DISTRICT COURT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Marc T. Amy, J. David Painter, and James T. Genovese, Judges.

AFFIRMED AS AMENDED.

David Groner
David Groner, P.L.C.
230 West Main Street
Post Office Box 9207
New Iberia, Louisiana 70560
(337) 364-3629
COUNSEL FOR PLAINTIFF/APPELLANT:
John Pomier

Skylar J. Comeaux
Joseph H. Garbarino
Jeff R. Rytlewski
Law Offices of Jeff R. Rytlewski
345 Doucet Road, Suite 104-A
Lafayette, Louisiana 70503
(337) 983-0170
COUNSEL FOR DEFENDANT/APPELLEE:
Hartford Insurance Company of the Midwest

John W. Penny, Jr.
Penny and Hardy
100 East Vermilion Street
Gordan Square, Suite 301
P.O. Box 2187
Lafayette, Louisiana 70502
(337) 231-1955
COUNSEL FOR DEFENDANTS/APPELLEES:
Robert Moreland and Allstate Insurance Company

GENOVESE, JUDGE.

Pursuant to non-jury trial in this personal injury action stemming from an

automobile accident, the trial court assigned eighty-percent fault to Plaintiff and

twenty-percent fault to Defendant. Subject to adjustment for comparative fault, the

trial court awarded Plaintiff general damages in the amount of $25,000.00, and

medical expenses of $12,406.20.1 Plaintiff appeals the general damage award. For

the following reasons, we affirm as amended.

FACTS

On January 3, 1997, Plaintiff, John Pomier (Pomier), was attempting to leave

his home in the New Horizon Trailer Park in New Iberia, Louisiana, when he struck

a parked vehicle owned by his neighbor, Defendant, Robert Moreland, Jr. (Moreland).

Pomier filed suit for personal injuries naming as defendants Moreland and his

automobile liability insurance carrier, Allstate Insurance Company (Allstate), and

Hartford Insurance Company of the Midwest (Hartford), which issued the applicable

uninsured/underinsured motorist policy. A joint stipulation was entered into by the

parties wherein they agreed “that [Pomier’s] cause of action does not exceed the

amount of $50,000.00, exclusive of interest and costs. . . .”

At the trial of this matter, the parties stipulated to the amount of Pomier’s

medical expenses as well as to the existence of insurance coverage under the relevant

policies. Following a bench trial, the trial court assessed Pomier with eighty-percent

of the fault for the subject accident and Moreland with twenty-percent fault. The trial

court further found that Pomier’s medical condition was causally related to the

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Although the record contains a stipulation by the parties that Pomier’s medical expenses
were $13,994.52, which was acknowledged by the trial court, the written judgment of January 17,
2006 grants judgment in favor of Pomier, before reduction for his comparative fault, for $ 37,406.20
for general and special damages. Considering the $25,000.00 general damage award, the award by
the trial court for medical expenses was actually $12,406.20, which figure was not objected to nor
appealed. Furthermore, this is the figure used by Pomier in his appellate brief. Hence, the figure of
$12,406.20 in medical expenses is the figure which will be used by this court.

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accident of January 3, 1997. Notwithstanding comparative fault, the trial court

rendered judgment in favor of Pomier in the amount of $25,000.00 in general

damages and $12,406.20 in special damages. Based upon the trial court’s finding of

comparative fault on the part of Pomier, the total damage award of $37,406.20 was

to be reduced by eighty-percent. Plaintiff appeals the general damage award.

ISSUE

The sole issue presented by Pomier in this appeal is the adequacy of the general

damage award by the trial court. Pomier failed to raise the issue of negligence as an

assignment of error. We acknowledge that in his appellate brief Pomier argues that

the trial court “committed manifest error in finding the [P]laintiff to be eighty-percent

(80%) at fault.” However, since the negligence issue was not set forth by Pomier as

an assignment of error, it will not be considered by this court. See Uniform

Rules—Courts of Appeal, Rule 1-3; Atwood v. Grand Casinos of Louisiana, Inc., 04-

715 (La.App. 3 Cir. 11/10/04), 887 So.2d 634, writ not considered, 04-3046 (La.

2/18/05), 896 So.2d 15. Therefore, we will review only the issue of the adequacy of

the general damage award of $25,000.00.

LAW AND ARGUMENT

In Andrus v. State Farm Mut. Auto. Ins. Co., 95-801, p. 8 (La. 3/22/96), 670

So.2d 1206, 1210 (citations omitted), the supreme court stated:

In appellate review of general damage awards, the court must
accord much discretion to the trial court judge or jury. The role of an
appellate court in reviewing awards of general damages is not to decide
what it considers to be an appropriate award, but rather to review the
exercise of discretion by the trial court. Only if the reviewing court
determines that the trial court has abused its “much discretion” may it
refer to prior awards in similar cases and then only to determine the
highest or lowest point of an award within that discretion.

Because discretion vested in the trial court is “great,” and even
vast, an appellate court should rarely disturb an award of general
damages. Reasonable persons frequently disagree about the measure of
general damages in a particular case. It is only when the award is, in

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either direction, beyond that which a reasonable trier of fact could
assess for the effects of the particular injury to the particular plaintiff
under the particular circumstances that the appellate court should
increase or reduce the award.

Pomier contends that the general damage award of $25,000.00 is an abuse of

the trial court’s discretion given the diagnosis of a herniated disc at C5-6 with cord

compression. We note, as did the trial court, that the only medical evidence of record

are the medical records of Pomier and that “[n]either party introduced medical

testimony either by [deposition] testimony or calling a live witness.”

The subject accident occurred on January 3, 1997. On January 8, 1997,

Pomier was treated by Dr. Jaikishen for complaints of neck pain. An MRI was

performed on January 23, 1997, which evidenced a herniated disc at C5-6 with mild

cord compression.

On February 5, 1997, Pomier sought treatment with Dr. Michel Heard, an

orthopedic specialist. Dr. Heard diagnosed Pomier with posttraumatic headaches,

neck pain, and low back pain. Dr. Heard also noted that the MRI of January 23, 1997

evidenced a C5-6 disc herniation. Dr. Heard scheduled Pomier for a CT of the

cervical and lumbar spine. On a subsequent visit of February 12, 1997, Dr. Heard

noted that the “CT of the cervical spine show[ed] mild spondylosis at C5-6 with

question of a small disc and/or spur at this level.” Dr. Heard, therefore, ordered

another cervical MRI which “show[ed] C5-6 disc herniation to the right.” Pomier

continued to treat with Dr. Heard through December 1997, at which time the doctor

noted that “[s]urgery is an option on the neck if it becomes frequent and severe.”

Thereafter, Pomier presented for treatment with University Medical Center

(UMC) in Lafayette, Louisiana. A subsequent CT scan was performed at UMC on

March 3, 1998, which showed “no evidence for osseous narrowing of the spinal canal

or neural foramina with no significant degenerative change identified within the facet

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joints.” Pomier was then referred to the Medical Center of Louisiana in New Orleans,

Louisiana.

Another cervical MRI was performed on Pomier in New Orleans on December

22, 1998 which revealed a “right posterior lateral disk protrusion at the level of C5-6

. . . with mild spondylosis.” This MRI indicated no cord compression. Though Dr.

Heard noted that surgery was an option, Pomier did not undergo surgery on his neck.

Basically, as a result of the accident, Pomier suffered a cervical injury with disc

involvement without surgical intervention.

We find that the medical records clearly establish that Pomier suffered a

cervical injury with disc involvement as a result of the accident. We find no manifest

error in the trial court’s ruling that “there is a clear indication that there is a herniated

disc.” Accordingly, we find that the trial court abused its discretion in only awarding

Pomier $25,000.00 in general damages for a herniated cervical disc.

Having found an abuse of discretion by the trial court, we refer to similar cases

to determine the lowest reasonable amount which may be awarded for the injuries

suffered by Pomier. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993),

cert. denied, 510 U.S. 1114, 114 S.Ct. 1059 (1994); Andrus, 670 So.2d 1206. In so

doing, however, we are mindful of the stipulation that Pomier’s “cause of action does

not exceed the amount of $50,000.00” and the consequence of such a stipulation. It

is noteworthy that this court opined in Williams v. Quinn, 03-630, p. 2 (La.App. 3 Cir.

11/5/03), 858 So.2d 873, 874, as follows:

In Bullock v. Graham, 96-0711 (La. 11/1/96), 681 So.2d 1248,
overruled on other grounds, Benoit v. Allstate Ins. Co., 00-0424 (La.
11/28/00), 773 So.2d 702, the supreme court examined the methods used
by various courts of appeal in cases dealing with jurisdictional limits
and stipulations limiting a plaintiff’s recovery to a certain amount. After
reviewing those methods, the supreme court held that an amount
awarded in such cases could “not exceed that maximum recoverable
amount, and the plaintiff’s percentage of fault was to be deducted from
the maximum recoverable amount.” Landry v. Allstate Ins. Co.,

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99-1971[, p. 4] (La.App. 1 Cir. 9/22/00), 768 So.2d 256[, 258]. The
maximum recoverable amount is the jurisdictional limit or the amount
stipulated by the plaintiff as being that amount.

In the case at bar, given the medical expenses of $12,406.20, and considering the

$50,000.00 stipulated cap on damages, the award for general damages cannot exceed

$37,593.80, and Pomier’s percentage of fault is then to be deducted from this

maximum recoverable amount.

We find that the lowest general damage award reasonably within the discretion

of the trial court exhausts the amount of damages remaining which may be awarded

in this case. See Brasseaux v. Hagan, 98-1796 (La.App. 3 Cir. 4/28/99), 736 So.2d

284 (general damage award increased from $10,000.00 to $30,000.00 where plaintiff

had a cervical disc herniation, degenerative disc problems and residual pain); Roberts

v. State, 00-778 (La.App. 3 Cir. 11/2/00), 776 So.2d 519, writs denied, 00-3307,

00-3324 (La. 2/2/01), 784 So.2d 8, 644 (general damage award increased from

$11,000.00 to $65,000.00 for herniation at C4-5 and herniation at L4-5 with surgical

recommendation); Cox v. Julian, 03-107 (La.App. 5 Cir. 5/28/03), 846 So.2d 986

(general damage award increased from $7,000.00 to $30,000.00 for a C5-6

herniation); Webb v. Horton, 01-978 (La.App. 5 Cir. 2/13/02), 812 So.2d 91 (general

damage award increased from $6,7000.00 to $50,000.00 for non-surgical herniated

cervical disc). In the instant matter, Pomier’s injuries included not only a cervical

injury with disc involvement, but also posttraumatic headaches, neck pain, and low

back pain with residual complaints through the date of the trial. For the foregoing

reasons, and in accordance with the stipulation that Pomier’s cause of action does not

exceed $50,000.00, we increase the general damage award to $37,593.80, which is

subject to eighty-percent reduction due to Pomier’s comparative fault.

DECREE

Considering the $50,000.00 stipulated cap on damages, the judgment of the

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trial court awarding John Pomier general damages in the amount of $25,000.00 is

amended and increased to $37,593.80, which is subject to an eighty-percent reduction

due to Pomier’s comparative fault. In all other respects, the judgment of the trial

court is affirmed.

Costs of this appeal are assessed against Defendants/Appellees, Hartford

Insurance Company of the Midwest, Robert Moreland, and Allstate Insurance

Company.

AFFIRMED AS AMENDED.

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