Jessie Leary, III v. State Farm Mutual Auto. Ins. Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-1184

JESSIE LEARY, III AND DORIS SPEARS LEARY

VERSUS

STATE FARM MUTUAL AUTOMOBILE INSURANCE
COMPANY AND ANDRE B. DOBISON

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT,
PARISH OF AVOYELLES, NO. 2006-9025-A
HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Oswald A. Decuir, Jimmie C. Peters, and Marc T. Amy, Judges.

AFFIRMED.

Jerold Edward Knoll
The Knoll Law Firm, L.L.C.
Post Office Box 426
Marksville, LA 71351
(318) 253-6200
COUNSEL FOR PLAINTIFFS/APPELLEES:
Jessie Leary, III
Doris Spears Leary

David Hughes
Hughes & LaFleur
Post Office Box 1831
Alexandria, LA 71309
(318) 443-4090
COUNSEL FOR DEFENDANT/APPELLANT:
Andre B. Dobison

PETERS, J.

One of the defendants in this automobile accident litigation, Andre B. Dobison,

appeals the trial court’s quantum award to the plaintiffs, Jessie Leary, III and Doris

Spears Leary. For the following reasons, we affirm the trial court judgment.

DISCUSSION OF THE RECORD

This litigation arises from a December 23, 2005 automobile accident which

occurred on Louisiana Highway 29 (La. 29) in Avoyelles Parish, Louisiana, at

approximately 2:25 a.m. The accident occurred when a vehicle being driven by

Dobison crossed the centerline of La. 29 and struck a vehicle being driven by Jessica

Shantrelle Leary (Jessica). Jessica died as a result of the injuries she sustained in the

accident.

Both drivers sustained serious physical injuries in the collision. Emergency

medical personnel initially transported Jessica to Bunkie General Hospital (Bunkie

General) in Bunkie, Louisiana where she received immediate treatment for her

injuries. At approximately 10:00 a.m. on that same morning, Jessica was transferred

by ambulance to Christus St. Francis Cabrini Hospital (Cabrini Hospital) in

Alexandria, Louisiana, where she underwent surgery for treatment of her injuries. At

approximately 6:22 a.m. on Christmas Eve, Jessica died from her injuries.

Emergency medical personnel also transported Dobison to Bunkie General

from the accident scene. The medical personnel at the Bunkie General emergency

room extracted a blood sample from Dobison to test for alcoholic content. The test

results revealed that at 4:43 a.m., or some two hours and eighteen minutes after the

accident, Dobison’s blood alcohol concentration was 0.07 percent by weight based

on grams of alcohol per one hundred cubic centimeters of blood. After receiving

some initial treatment at Bunkie General, Dobison was transferred to Rapides

Regional Medical Center in Alexandria, Louisiana, where he remained for eleven

days.

Jessie Leary, III and Doris Spears Leary, who are Jessica’s parents, brought this

action for damages against Dobison and his liability insurer, State Farm Mutual

Automobile Insurance Company (State Farm). Following a June 8, 2007 bench trial,

the trial court entered judgment in favor of the Learys, awarding $650,000.00 in

survival damages; $900,000.00 in wrongful death damages; $1,700,000.00 in punitive

damages; and $75,181.90 in hospital, medical, and funeral expenses. In his appeal,

Dobison asserts the following assignments of error:1

1. The trial court committed error in awarding plaintiffs $650,000.00
survival damages.

2. The trial court committed error in awarding each plaintiff
$450,000.00 wrongful death damages.

3. The trial court committed error in awarding plaintiffs punitive
damages.

4. The trial court committed error in awarding each plaintiff
$850,000.00 in punitive damages or a total of $1,700,000.00
punitive damages.

OPINION

In the first two assignments of error, Dobison argues that the trial court

awarded excessive damages, and that a review of prior awards for survival and

wrongful death damages would establish this error. He does not contest the Learys’

right to recover survival or wrongful death damages. Instead, he asserts only that the

awards are excessive.

1
State Farm has not appealed. Its insurance policy provided bodily injury liability limits of
$25,000.00 per person. On June 13, 2007, State Farm paid the Learys its policy limits and court
costs through that day. In exchange, the Learys executed a partial release and satisfaction of
judgment.

2

In considering these assignments of error, we first note the guidance supplied

by the supreme court to appellate courts in Youn v. Maritime Overseas Corp., 623

So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059 (1994):

[T]he discretion vested in the trier of fact is “great,” and even vast, so
that 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
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.

Thus, the first step is to determine whether the trial court abused its vast discretion.

Consideration of prior awards play no part in resolving that issue.

Resorting to a comparison of prior awards is only appropriate
after the reviewing court has concluded that an abuse of discretion has
occurred. Thus, the initial inquiry for this court is whether the jury
abused its discretion in assessing the amount of damages. If the court
concludes that it has, then and only then may the prior awards be used
for determining the highest or lowest amount that was reasonably within
that discretion.

Cone v. Nat’l Emergency Serv., Inc., 99-934, p. 8 (La. 10/29/99), 747 So.2d 1085,

1089 (citations omitted, emphasis added).

Survival damages may be awarded for the pre-death mental and physical pain

and suffering of the deceased. Temple v. Liberty Mut. Ins. Co., 330 So.2d 891

(La.1976). In determining survival damages, the court should consider the severity

and duration of any pain or any pre-impact fear experienced by the deceased, and any

other damages sustained by the deceased up to the moment of death. Guillot v.

Valley Forge Ins. Co., 99-1044 (La.App. 3 Cir. 12/8/99), 753 So.2d 891. “Survival

damages are properly awarded if there is even a scintilla of evidence of pain or

suffering on the part of the decedent, and fright, fear, or mental anguish during an

ordeal leading to the death is compensable.” Patrick v. Employers Mut. Cas. Co., 99-

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94, p. 17 (La.App. 3 Cir. 8/11/99), 745 So.2d 641, 652, writ denied, 99-2661 (La.

11/24/99), 750 So.2d 987. When a person dies due to the fault of another, leaving no

surviving spouse or children, her parents acquire the right to recover all damages

suffered by her prior to her death. La.Civ.Code art. 2315.1(A)(2).

The record establishes that in December of 2005, Jessica was on holiday break

from her studies at the University of Louisiana, in Lafayette, Louisiana. During the

holiday break, she had obtained employment at the Paragon Casino in Marksville,

Louisiana and, at the time of the accident, was returning to her parents’ home in

Bunkie, Louisiana, after completing a work shift at the casino.

The physical evidence at the scene of the accident established that Jessica

obviously realized her precarious position when Dobison entered her lane of travel

because the point of impact occurred at a point where her vehicle was only partially

on the travel lane. Louisiana Master Trooper Nathan Beaubouef, the investigating

officer for the Louisiana State Police, concluded that Jessica had slowed her vehicle

before the collision, and may have even come to a stop. Despite her every effort to

avoid the collision, Dobison came completely across Jessica’s lane of travel. The

impact drove Jessica’s vehicle fifteen feet off the roadway, and another nineteen feet

down an embankment. Emergency personnel worked for over an hour to extract her

from her mangled vehicle.

Jessica suffered massive blood loss from a liver laceration. Additionally, she

sustained fractures in her right foot and left femur, a contusion of the bladder, and a

separated pelvis. At Bunkie General, Jessica was conscious, somewhat incoherent,

and in tremendous pain. She received blood transfusions because of the initial loss

of blood. According to Doris Leary, her daughter continually asked that her body be

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turned over because of the pain in her back. Mrs. Leary accompanied Jessica during

the ambulance trip to Alexandria on the morning of December 23. According to Mrs.

Leary, the treating EMT who accompanied Jessica had to request that the driver

negotiate the curves in the highway at a slow speed because that slight movement

caused Jessica significant pain, and she was constantly moaning and groaning in each

such maneuver.

At Cabrini Hospital, Jessica continued to request that she be turned on her side

because of the pain in her back. After her surgery, Jessica was placed in the intensive

care unit and continued to receive blood transfusions. The record reflects that,

overall, she received three times her volume of blood and this continuous requirement

caused her entire body to swell. By the early morning hours of December 24,

Jessica’s body had essentially shut down. She died at 6:22 that morning.

Considering the obvious pre-impact fear Jessica suffered, as well as the pain

and suffering she endured during the approximately twenty-eight hours of her

remaining life, we find no abuse of discretion in the trial court award of $650,000.00

in survival damages.

Louisiana Civil Code Article 2315.2(A)(2) provides that when a person dies

due to the fault of another, leaving no surviving spouse or children, her parents may

bring suit to recover the damages which they sustained as a result of her death. A

wrongful death action is intended to compensate the deceased’s loved ones for the

losses they sustained as a result of the death. “While it is impossible to place a

monetary value on the life of a child, our jurisprudential system has established that

a monetary award is the appropriate remedy to one who has suffered the loss of a

loved one as a result of the negligence of another.” Anderson v. New Orleans Pub.

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Serv., Inc., 583 So.2d 829, 833 (La.1991). The elements of damage for wrongful

death are loss of love and affection, loss of services, loss of support, medical

expenses, and funeral expenses. Todd v. Sauls, 94-10 (La.App. 3 Cir. 12/21/94), 647

So.2d 1366, writs denied, 95-206, 95-219 (La. 3/24/95), 651 So.2d 289. “Damages

awarded for wrongful death are general damages since the value of the loss is not

subject to a pecuniary calculation.” Patrick, 745 So.2d at 652. Thus, this court must

first review the award of damages to determine whether the trial court abused its vast

discretion. Youn, 623 So.2d 1257.

The Learys first became aware of Jessica’s accident at approximately 3:30 a.m.

when an officer with the Bunkie Police Department notified them. Mr. Leary

immediately traveled to the accident scene while his wife remained at home with their

younger daughter, Shaylan. When Jessica was transported to Bunkie General, Mr.

Leary called home and told his wife and Shaylan to meet him at the hospital. During

Jessica’s stay at Bunkie General, her parents were close at hand.

As previously stated, Mrs. Leary traveled in the ambulance with her daughter

to Cabrini Hospital. She remained with her daughter until the early morning hours

of December 24, when Mr. Leary insisted that she and Shaylan return to Bunkie and

get some rest. Mr. Leary remained with Jessica. During those final hours, Mr. Leary

remained by Jessica’s hospital bed and, even though she was not responsive, he

continued to speak to her in an attempt to lend comfort. When it became obvious that

Jessica was not going to survive, he called his wife and told her to return to the

hospital. Jessica died before Mrs. Leary and Shaylan arrived.

In summary, the Learys lost their daughter on Christmas Eve. The record

reflects that she was twenty-one years old when she died, was one year from a college

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degree in accounting, and was consistently on the Dean’s List at college. It is

obvious from the record that she and her parents had a very loving relationship and

that they were intimately involved in each other’s lives. Her parents were proud of

her and she of them. For approximately twenty-eight hours before her injuries

claimed her life, her parents were by her side and witnessed both her fight for life

against impossible odds and her extreme pain and suffering. Given the record as a

whole, we do not find that the trial court abused its vast discretion in awarding each

parent $450,000.00 in wrongful death damages.

In his last two assignments of error, Dobison contests both the award of

punitive damages and the amount of punitive damages. He asserts that the Learys

failed in their burden of proving that he was intoxicated and that Jessica’s injuries and

subsequent death was caused by his wanton or reckless disregard for her rights and

safety.

Louisiana Civil Code Article 2315.4 provides that punitive damages “may be

awarded upon proof that the injuries on which the action is based were caused by a

wanton or reckless disregard for the rights and safety of others by a defendant whose

intoxication while operating a motor vehicle was a cause in fact of the resulting

injuries.” In awarding punitive damages, the trial court obviously concluded that the

Learys were successful in proving this issue by a preponderance of evidence. The

trial court’s determination as to whether the elements requisite to recovery under

La.Civ.Code art. 2315.4 have been proven is a question of fact, which this court will

not set aside in the absence of manifest error. Riser v. Acadiana Limousine Serv.,

Inc., 96-1687 (La.App. 3 Cir. 4/30/97), 693 So.2d 330, writ denied, 97-1420 (La.

9/19/97, 701 So.2d 173).

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The trial court based its finding that Dobison was intoxicated at the time of the

accident on the testimony of Jimmy Barnhill, a forensic chemist and System Director

of the North Louisiana Criminalistics Laboratory, and Trooper Beaubouef. Barnhill

testified that, through retrograde extrapolation of the results of Bunkie General’s

blood alcohol testing, he determined that Dobison’s blood alcohol concentration was

between 0.104 and 0.127 percent by weight based on grams of alcohol per one

hundred cubic centimeters of blood. Trooper Beaubouef testified that he smelled

alcohol on Dobison’s breath, and when he asked Dobison if he had been drinking,

Dobison refused to answer. Louisiana Revised Statute 14:98(A)(1)(b) provides that

an individual operating a motor vehicle when his blood alcohol concentration is 0.08

percent or more by weight based on grams of alcohol per one hundred cubic

centimeters of blood is guilty of the offense of operating a vehicle while intoxicated.

At trial, Dobison testified that he had two mixed alcoholic drinks on the

evening of December 22, 2005—one at 10:30 p.m., and the other at midnight. He did

not dispute that he entered Jessica’s lane of travel, but blamed his actions on fog and

not alcohol. As to his refusal to answer Trooper Beaubouef’s question, he asserted

that he was unable to respond because of his physical pain at that time. Furthermore,

he argues that the evidence was insufficient to establish his intoxication at the scene

because Trooper Beaubouef did not testify as to obvious signs of intoxication such

as slurred speech or staggering. Additionally, he asserts that Barnhill’s retrograde

extrapolation was inaccurate.

Both Trooper Beaubouef and Mr. Leary testified that there was no fog on the

highways on the night of the accident. Additionally, Trooper Beaubouef testified

that, given the surrounding circumstances at the accident scene, he did not speak to

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or observe Dobison long enough to determine whether he was visibly impaired.

Futhermore, the trial court accepted Barnhill’s expert testimony as accurate. The trial

court is free to assign whatever weight it deems appropriate to the testimony of expert

witnesses subject to the manifest error standard of review on appeal. Massie v.

Deloach, 04-1425 (La.App. 3 Cir. 3/2/05), 896 So.2d 1246, writ denied, 05-786 (La.

5/6/05), 901 So.2d 1107.

Given Barnhill’s expert testimony, Dobison’s admission that he had consumed

some alcohol on the night of the accident, the particulars of the accident itself, and

Trooper Beaubouef’s detection of the odor of alcohol at the accident scene, we find

no manifest error in the trial court’s determination that Dobison was intoxicated at the

time of the accident and that his intoxication was a cause-in-fact of the accident. See

Phelps v. White, 94-267 (La.App. 3 Cir. 10/5/94), 645 So.2d 698, writ denied, 95-151

(La. 3/17/95), 651 So.2d 272.

Dobison also contends that proof of the element of wanton or reckless

disregard for the rights and safety of others is lacking. With regard to that issue, this

court has stated:

To be considered wanton and reckless, typically, the necessary
level of conduct is somewhere between an intent to do wrong and mere
negligence. Actionsknowinglytakenwhichwouldlikelycauseinjurytoanotherfallwithinthiscategory. Althoughnospecific
conduct by an actor is necessary, a conscious indifference to consequences must be
shown. If the actor knows or should know that his actions will cause harm and
proceeds anyway, there is a conscious indifference to consequences so that there is
a wanton or reckless disregard for the rights and safety of others.

Blackshear v. Allstate Ins. Co., 94-765, pp. 8-9 (La.App. 3 Cir. 12/7/94), 647 So.2d

589, 594-95 (citations omitted).

Applying these criteria to Dobison’s actions as previously stated, we find that a trier

of fact could conclude that the Learys overcame their burden of proof on this element.

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Therefore, we find no merit in the argument that the Learys are not entitled to

punitive damages pursuant to La.Civ.Code art. 2315.4.

In his final assignment of error, Dobison argues that the punitive or exemplary

damage award of $850,000.00 to each parent is excessive. Exemplary damages are

given to plaintiffs over and above the full compensation for their injuries for the

purposes of punishing the defendant, of instructing him not to repeat the offensive

action, and of deterring others from following the defendant’s conduct. Mosing v.

Domas, 02-12 (La. 10/15/02), 830 So.2d 967. “As with the review of a general

damage award, the role of an appellate court in reviewing an award of exemplary

damages is not to decide what it considers to be an appropriate award, but rather to

review the exercise of discretion by the trier of fact.” Id. at 979.2

Again, Dobison’s primary argument is that in comparison with the exemplary

damages awarded in other, similar, cases the award in this case is excessive. But our

supreme court has specifically said that when considering whether an award is

excessive, the reviewing court is not to compare the exemplary damages with awards

from other cases. Id. Instead, our supreme court has set out four criteria to be used

in determining whether the finder of fact has abused its discretion in setting an award

of exemplary damages: (1) the degree of reprehensibility of the defendant’s conduct;

(2) the disparity between the harm suffered by the plaintiffs and the exemplary

damages awarded; (3) the difference between the exemplary damages awarded and

the civil or criminal penalties authorized or imposed in comparable cases; and (4) the

defendant’s economic wealth. Id.

2
Dobinson asserts that the trial court’s award is excessive under the Due Process Clause of
th
the 14 Amendment to the United States Constitution, and therefore this court’s review should be
de novo. However, he failed to raise this constitutional issue in the trial court, and therefore it is
waived. Mosing v. Domas, 02-12 (La. 10/15/02), 830 So.2d 967.

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We have no hesitation in saying that the first factor fully justifies the award:

Dobison’s actions in driving after consuming enough alcohol to bring his blood level

to at least 0.104 were reprehensible, and his irresponsible conduct led to actions that

could clearly have been foreseen.

In applying the second factor, the court must examine the award “in light of the

facts of the case and with reference to the actual damages awarded and the potential

harm that could have resulted from the defendant’s conduct.” Id. at 981. In Mosing,

our supreme court approved a ratio of compensatory to exemplary damages that was

1 to 9. The Learys were awarded $1,625,181.90 in compensatory damages and

$1,750,000.00 in exemplary damages, a ratio of almost 1 to 1. This direct ratio is

appropriate because here there is no greater potential harm that could have resulted

from Dobison’s conduct; Jessica died as a result of his driving while intoxicated.

The third factor requires us to compare the exemplary damages awarded with

the possible criminal or civil penalties that could be imposed on Dobison for driving

while intoxicated, first offense. Louisiana Revised Statute 14:98(B)(1) provides that

the penalty for that offense is a fine of $300.00 to $1,000.00 and imprisonment of not

less than ten days nor more than six months. As our supreme court noted in Mosing,

“[w]hile the possible criminal monetary penalty is significantly less than the

exemplary damage award in this case, the fact that the offense carries a term of

imprisonment makes the difference in monetary penalties less relevant.” Id. at 982.

The final factor to consider is Dobison’s assets and income. Dobison is an

independent contractor with Primerica Financial Services and is licensed with the

Securities and Exchange Commission to issue insurance and mortgage loans. He

earned $100,000.00 in 2005 and $115,000.00 in 2004. He and his former wife own

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a rental home together, and he owns his own home, although it is subject to two

mortgages. Additionally, he owns two vehicles. Based on this bare record of Mr.

Dobison’s earnings, the exemplary damages imposed, while at the high end, are not

excessive.

After reviewing these factors and the record as a whole, we conclude that the

trial court did not abuse its discretion in making this award.

CONCLUSION

We affirm the trial court’s judgment in all respects. We assess all costs of this

appeal to the defendant, Andre B. Dobison.

AFFIRMED.

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