Amy Brossett v. Melody Howard

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

08-535

AMY BROSSETT, ET AL.

VERSUS

MELODY HOWARD, ET AL.

**********
APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 193,801
HONORABLE F. RAE D. SWENT, DISTRICT JUDGE
**********

CHRIS J. ROY, SR.1
JUDGE

**********

Court composed of John D. Saunders, James T. Genovese, and Chris J. Roy, Judges.

EXCEPTION OVERRULED; JUDGMENT AFFIRMED, AS AMENDED.

Joseph J. Bailey
Provosty, Sadler & deLaunay
P. O. Drawer 1791
Alexandria, LA 71309-1791
(318) 445-3631
Counsel for Plaintiffs/Appellees:
Amy Brossett, et al.

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Judge Chris J. Roy, Sr. appointed judge pro tempore of the Court of Appeal, Third
Circuit.

Barry Ray Laiche
Provosty, Sadler
237 S. Washington Street
Marksville, LA 71351
(318) 253-4435
Counsel for Plaintiffs/Appellees:
Amy Brossett, et al

Ian Alexander Macdonald
Longman Russo
P. O. Drawer 3408
Lafayette, LA 70502-3408
(337) 262-9000
Counsel for Defendants/Appellants:
Progressive Security Ins. Co.
Melody Howard

ROY, Judge (pro tempore).

This is an appeal brought by defendants, Melody Howard (Howard) and her

insurer, Progressive Insurance Company (Progressive), of the judgment rendered after

the jury trial of a personal injury and wrongful death action. The plaintiffs, Amy

Brossett and her daughter, Emily Brossett Porche (Emily), were awarded general and

specific damages, including damages for the death of Brossett’s husband and Emily’s

father, Craig Brossett. The defendants argue that the damage awards are unsupported

by the evidence and should be reversed and that Emily’s claims should be dismissed

because they were prescribed and the citation to the amended petition asserting her

claims was never properly served. The defendants have also filed with this court an

Exception of No Right of Action, asserting that Amy Brossett lost her standing to

seek damages through this action when she filed for bankruptcy while the lawsuit was

pending. Amy Brossett has answered the appeal, asking this court to reverse the

jury’s denial of exemplary damages.

For the following reasons, the Exception of No Right of Action is overruled

and the judgment of the trial court is affirmed, as amended.

ISSUES

1. Should the Exception of No Right of Action, raised
for the first time on appeal, be sustained due to the
failure of Amy Brossett’s bankruptcy trustee to be
substituted as the plaintiff in this action?

2. Was Emily’s claim for wrongful death damages
prescribed when it was filed years after the
commencement of the action?

3. Should Emily’s damage awards have been excluded
from the judgment due to plaintiffs’ failure to serve
the defendants with a citation of the suit?

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4. Did the jury abuse its discretion in awarding to
Emily $500,000.00 in damages for the wrongful
death of her father despite the fact that she was an
infant when he died?

5. Did the jury abuse its discretion in awarding future
medical expenses in the amount of $50,000.00 to
Amy Brossett, when the only expert testimony
offered regarding the value of future medical
expenses was $36,052.00?

6. Were the awards to Amy Brossett of $750,000.00 for
her pain and suffering and $75,000.00 for her loss of
enjoyment of life abusively high considering the
evidence presented?

7. Did the jury abuse its discretion in awarding to Amy
Brossett a $40,000.00 disability award, considering
the evidence presented of her status of recovery
from her injuries?

8. Did the jury abuse its discretion in awarding Amy
Brossett and her daughter, a total award of
$500,000.00 for loss of future economic support,
when the expert testimony presented at trial
quantified the loss as $394,531.00?

9. Did the jury abuse its discretion in failing to award
exemplary damages to the plaintiffs when it was
stipulated that Howard was intoxicated and at fault
in causing the accident and resulting injuries?

FACTUAL BACKGROUND

On March 7, 1998, shortly after midnight on Louisiana Highway 107, Melody

Howard drove her 1992 Toyota 4-Runner into the Brossetts’1995 Pontiac Grand Am,

causing the death of Craig Brossett and causing serious injuries to Amy Brossett. It

is undisputed that Howard was legally intoxicated at the time of the crash. Since

approximately 4:00 p.m. that day, she had been celebrating her fortieth birthday with

friends and co-workers, beginning with drinks and appetizers at a local restaurant.

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The evening ended near midnight at a local hotel’s bar. Although Howard has no

memory of leaving the hotel’s bar, it is undisputed that she was driven by two of her

co-workers to her car, which was parked at another location and was left to drive

herself home.

Howard was alone in her vehicle and attempting to drive herself home when

the accident happened. She had fallen asleep at the wheel and was seen by following

drivers, swerving multiple times from her southbound lane of travel across the

northbound lanes and back. Immediately prior to the accident occurring, she had

crossed the entire highway and was driving on the shoulder of the northbound side

of the highway, facing oncoming, northbound traffic.

The Brossetts, who were traveling north on Highway 107, were returning home

after having had dinner with friends; they had not consumed any alcohol that evening.

Amy Brossett was driving, as her husband, Craig, lay reclined and sleeping in the

front passenger seat. As Howard’s vehicle and the Brossetts’ vehicle approached,

Howard woke up and jerked her steering wheel into the oncoming traffic, striking the

Brossetts’ vehicle. She denied seeing the Brossetts’ vehicle until immediately before

the impact.

Craig Brossett died in the vehicle without regaining consciousness. Amy

Brossett suffered multiple injuries, the most serious of which were the fractures to her

right hip, a broken femur, an open fracture of the kneecap, and multiple fractures to,

and a dislocation of, her right foot. She was pinned in the vehicle under the wreckage

for well over an hour. While efforts were being made to extricate Amy Brossett from

the vehicle, she remained conscious and suffered excruciating pain.

Results from toxicology tests performed on the night of the accident resulted

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in Howard being arrested and charged with Vehicular Homicide for Craig Brossett’s

death and also First Degree Vehicular Negligent Injury for the serious injuries caused

to Amy Brossett. Howard subsequently submitted a “blind plea” to the court in that

proceeding. That is, she voluntarily pled guilty to the charges with no pre-agreement

as to sentencing.

Craig was twenty-four years old when he died. Amy was twenty-three. The

Brossetts had been married since November of 1996— approximately sixteen months

at the time of the accident—and had a nine-month old daughter, Emily, who was

being babysat by her grandmother that evening.

Amy Brossett filed a Petition on behalf of herself and “the Estate of Craig

Brossett” on October 23, 1998, originally seeking multiple general and specific

damages for her personal injuries, as well as wrongful death and survival damages2

due to her husband’s death. On January 19, 2007, Amy Brossett filed her Fifth

Supplemental and Amending Petition, adding their daughter, Emily Brossett Porche,3

as a plaintiff in the action. The parties jointly stipulated to the court that the claims

of Emily were not prescribed and would related back to the date of the filing of Amy

Brossett’s original petition. The trial court allowed the amendment and filing of the

petition.

Also prior to the trial of this matter, Howard filed a stipulation accepting 100

percent of the fault and sole responsibility for the accident. She further stipulated that

Craig Brossett died from the injuries he sustained in the accident. Accordingly, this

case was tried before a jury, on the issue of damages only, from October 23, 2007

2
The claim for survival damages was later voluntarily dismissed.
3
Amy Brossett married William Porche in April of 2001.

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through October 25, 2007. The jury’s awards, which were subsequently rendered by

the trial court in its Final Judgment, were as follows:

For the injuries to Amy Brossett

Past medical expenses $ 81,869.14
(credit=
$30,960.00)4

Future medical expenses $ 50,000.00

Past lost wages $ 6,500.00

Physical pain & suffering & $750,000.00
mental anguish

Loss of enjoyment of life $ 75,000.00

Disability $ 40,000.00

Loss of consortium to Emily $ 5,000.00
(For her mother’s injuries)

For the wrongful death of Craig Brossett

For loss of past economic support $173,000.00
for Amy and Emily

For loss of future economic $500,000.00
support for Amy and Emily

Loss of love, affection, $250,000.00
companionship, grief and
anguish to Amy

Loss of love, affection, $500,000.00
companionship, grief, and
anguish to Emily

Do you find that an award of exemplary damages should be
made in this case?

Yes _____ No XX

4
This amount constituted the sum, at trial, of the monthly restitution payments that
Melody Howard had been ordered by the criminal court to pay to Amy Brossett.

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Progressive and Howard have appealed the judgment, asserting that the jury

abused its discretion in quantifying the amount of many of the awards rendered. They

assert that $50,000.00 for future medical expenses is unsupported by the evidence

produced at trial, which only established that $36,052.00 in future medical expenses

might be warranted. They argue that the general damage awards to Amy Brossett of

$750,000.00 for pain and suffering and $75,000.00 for loss of enjoyment of life are

abusively high. The defendants argue that these awards are a consequence of the trial

court disallowing the presentation to the jury of Amy Brossett’s statement in a letter

to Howard in 2005 that she was “happy.” Moreover, the defendants contend that the

awards are not justified because Amy Brossett failed to introduce any evidence of her

loss of the ability to resume many of the activities and/or the recreational lifestyle she

enjoyed prior to the accident. Additionally, the defendants contend that there is a lack

of evidence of Amy Brossett suffering from any physical or mental impairment to

support granting her a disability award of $40,000.00. Finally, they appeal the joint

award to Amy Brossett and Emily of $500,000.00 for their loss of future economic

support due to Craig’s death, arguing that the only evidence presented at trial of this

loss totaled $394,531.00.

Regarding Emily’s awards, it was argued that the $500,000.00 general damage

award for the loss of her father’s love, affection, companionship, and for her grief and

anguish was abusively high due to the fact that she was nine months old at the time

of his death, and she lacked a requisite awareness of the loss suffered. Further, the

defendants contend that Emily’s claims, which were added nine years after the

accident, were prescribed and should be dismissed. The defendants also argue that

Emily’s claims should be dismissed because they did not receive proper service of the

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citation of the amended petition that added her claims to the action. The defendants

have also filed a peremptory Exception of No Right of Action with this court, seeking

the dismissal of the entire action. The exception challenges Ms. Brossett’s capacity

to pursue this lawsuit after she filed a petition to be declared bankrupt in federal court

in 2004, years after this suit was filed.

Amy Brossett has answered the appeal, asserting that the jury abused its

discretion in failing to award exemplary damages pursuant to La.Civ.Code art.

2315.4, which authorizes exemplary damages for injuries caused by an intoxicated

defendant.

LAW AND DISCUSSION

Exception of No Right of Action

The defendants’ peremptory exception alleges that Ms. Brossett instituted a

Chapter 7 bankruptcy proceeding while her action was pending. Once the action was

filed, the defendants contend that she no longer possessed the right to pursue the

pending claims for damages. Rather, according to the defendants, from the time the

petition for bankruptcy was filed, the bankruptcy trustee became exclusively vested

with the right to pursue those claims. Therefore, the defendants assert that because

the trustee was never substituted as the plaintiff in these proceedings, the suit should

be dismissed.

Amy Brossett argues that the exception of no right of action should be

overruled because she was authorized by the bankruptcy court to continue pursuit of

her claims in the pending litigation. She alternatively argues that the exception

should be denied because proof of the ground of the exception does not appear in the

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record, as is required by La.Code Civ.P. art. 2163.5 For the following reasons, the

exception is overruled.

The peremptory exception of no right of action questions a plaintiff’s right to

pursue the remedy being sought:

An exception of no right of action is a threshold procedural device
used to terminate a suit brought by a person who has no legally
recognized right to enforce the right asserted. Unless otherwise
provided by law, an action can only be brought by a person having a real
and actual interest in the matter asserted. LSA-C.C.P. art. 681.

Joseph v. Hosp. Serv. Dist. No. 2 of Parish of St. Mary, 05-2364, p. 5 (La. 10/15/06),

939 So.2d 1206, 1210.

Louisiana Code of Civil Procedure article 2163 states that the exception of no

right of action can be considered for the first time on appeal, but only if it is filed

prior to the case being submitted for a decision, and “proof of the ground of the

exception appears of record.” Both parties agree that the only reference in the record

to Amy Brossett’s bankruptcy proceedings is contained in the text of the trial court

pleading styled, Second Request for Trial Date, that was filed by her attorney in 2006.

Therein her attorney stated that “[t]he undersigned has obtained permission from the

bankruptcy court to proceed in this matter.” Our review of the record confirms that

this statement by Amy Brossett’s counsel is the only reference in the record to her

bankruptcy action, and it is accurate that the bankruptcy trustee was never substituted

as a plaintiff in the personal injury and wrongful death action that is at issue.

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Code of Civil Procedure article 2163 states, in relevant part:

Art. 2163. Peremptory exception filed in appellate court; remand if prescription
pleaded

The appellate court may consider the peremptory exception filed for the first time in that
court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the
exception appears of record.

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We recognize that, generally, only a trustee has a right to pursue a debtor’s

cause of action that existed at or prior to commencement of a bankruptcy proceeding:

11 U.S.C.A. § 323 makes the trustee the
representative of the bankrupt’s estate, and grants him the
capacity to sue and be sued. 11 U.S.C.A. § 541 provides
that the commencement of a bankruptcy case creates an
estate, which includes all legal and equitable interests of
the bankrupt in property “as of the commencement of the
case.” 11 U.S.C.A. § 704 obligates the trustee to collect
and administer the bankrupt’s estate. Thus, all legal and
equitable interests of the bankrupt in property vests in the
trustee from the time the bankruptcy is filed. Thereafter,
only the trustee can act to recover the assets of the
bankrupt. It is the trustee, not the bankrupt, who has the
legal capacity to sue upon a cause of action for damages
arising prior to the filing of the petition in bankruptcy.

Jones v. Chrysler Credit Corp., 417 So.2d 425, 426 (La.App. 1 Cir.), writ denied, 420

So.2d 456 (La.1982), cert. denied, 459 U.S. 1114, 103 S.Ct. 747 (1983) (emphasis

added). However, we also recognize that a trustee has the authority to allow the

bankruptcy plaintiff to proceed, via his or her own counsel, in any such pending

litigation. Scarborough v. Duke, 532 So.2d 361 (La.App. 3 Cir. 1988); Johnson v.

Best Mfg. Co., Inc., 263 So.2d 436 (La.App. 1 Cir. 1972).

We find that under the circumstances of this particular case, in which there has

been a final judgment rendered after the conclusion of a multi-day jury trial,

following almost ten years of litigation, equity and judicial economy entitles us to

consider Amy Brossett’s attorney’s statement that was made in the Motion for New

Trial, since these attestations clearly have evidentiary value pertinent to the

determination of this peremptory exception. See Ott v. Richard, 556 So.2d 147

(La.App. 5 Cir. 1990) (finding that judicial expediency and economy supported the

court’s consideration of an attorney’s admission made during argument to the trial

court of the fact of his client’s filing a bankruptcy petition in federal court, although

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no tangible evidence as to the details of the bankruptcy was filed in evidence).

Specifically, we find that Amy Brossett’s attorney’s statement infers that she

was involved in personal bankruptcy proceedings while the personal injury and

wrongful death action was pending. Moreover, because the attorney referenced his

receipt of approval from the bankruptcy court to proceed, it further infers an

acquiescence of the fact that Amy Brossett no longer possessed the standing to pursue

the tort action as a consequence of her initiating the bankruptcy action. We find that

this statement, consequently, negates Amy Brossett’s claim, made in opposition to the

exception, that there is nothing contained in the record to support the basis of the

exception and that it should, therefore, not be considered by this court . See La.Code

Civ. P. art. 2163.

However, the statement also brings to a quick close, our review of the

exception. Amy Brossett’s attorney’s attestation to the trial court that he received the

bankruptcy court’s approval to proceed to trial, notwithstanding the pending

bankruptcy, was accepted as true by the trial court and was not challenged prior to

trial by opposing counsel. Considering this, and in efforts to promote judicial

expediency and economy under the particular facts of this case, the exception of no

right of action is overruled.

Prescription of Emily Brossett Porche’s Claims and Service of Process

The defendants contend that the trial court erred by allowing the addition of

Emily Brossett Porche’s claim for wrongful death damages nine years after the suit

was initially filed by her mother. The suit was filed in October 1998, and at the time,

Emily was not named as a plaintiff in the action. It is argued that Emily’s claims were

prescribed and could not relate back to the date of the timely filing of Amy Brossett’s

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first petition because they constituted an unexpected assertion of substantial claims

that Amy Brossett knew or should have known about when she filed the first petition.

The defendants argue that it is inexplicable that although multiple amendments were

made to the petition over the years, it was not until 2007 that Amy Brossett moved

for leave of court to add Emily as a plaintiff in a Fifth Supplemental and Amending

Petition. They also argue in this appeal that they were never properly served with the

citation to the Fifth Supplemental and Amending Petition after the court approved its

filing, and for this reason as well, Emily’s claims should be dismissed.

The record reflects that during the hearing held on April 16, 2007, on Amy

Brossett’s Motion for Leave to File Fifth Supplemental and Amending Petition,

counsel for defendants and Amy Brossett entered a joint stipulation in regard to the

filing of the amended petition. The court’s minutes recite the joint stipulation as

follows: “ the Fifth Supplemental and Amending Petition will be allowed; the claim

of Emily Brossett is not prescribed . . . .” A judgment was thereafter rendered in

accordance with the stipulation and the amendment was allowed by the trial court.

Because of this stipulation, we find that the defendants are precluded from now

asserting that the claims are prescribed, for the following reasons:

A judicial confession is a declaration made by a
party in a judicial proceeding. That confession constitutes
full proof against the party who made it. A stipulation has
the effect of a judicial admission or confession, which
binds all parties and the court. Stipulations between the
parties in a specific case are binding on the trial court when
not in derogation of law. Such agreements are the law of
the case. It is well-settled that a stipulation amounts to full
proof against those who made it. It has the effect of
withdrawing a fact from issue and disposing wholly with
the need for proof of that fact.

Parish of St. Charles v. R.H. Creager, Inc., 07-676 (La.App. 5 Cir. 2/6/08), pp. 9-10,

11

975 So.2d 742, 747-48, writ denied, 08-777 (La. 6/6/08), 983 So.2d 918 (footnotes

omitted). Accordingly, we find that this exception to the filing of Emily’s claims on

the basis of prescription is meritless.

Additionally, we find no merit to the defendants’ assertion that Emily’s claims,

as set forth in the Fifth Supplemental and Amending Petition, should be dismissed

because of their failure to receive service of a citation for the amended suit. The

record reflects that immediately prior to the commencement of trial, counsel for the

defendants orally entered a general denial to all of the claims asserted in the final

amended petition and stated to the court that all of the issues were joined. There was

no exception regarding insufficient service of citation filed before the defendants’

general denial was entered into the record. Louisiana Code of Civil Procedure

articles 925 and 928 require that the declinatory exception of insufficiency of citation

be pled prior to or in the answer. This was not done. Accordingly, we find that these

exceptions were waived and may not now be raised before this court on appeal.

Future Medical Expenses

Amy Brossett was awarded future medical expenses in the amount of

$50,000.00 by the jury. The defendants argue, first, that this value is too high since

the only evidence of the value of any future medical expenses was in the amount of

$36,052.00, which represented her expert economist’s calculation of the present value

of the only future medical treatment that might be needed—hip replacement surgery.

Next they argue that no evidence was presented that definitively established that Amy

Brossett would need this procedure in the future or that she would choose to undergo

the procedure in the future. Rather, they contend that the diagnosis for Amy Brossett

is the development of degenerative arthritis in her injured hip in twenty to twenty-five

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years. The defendants argue that the effect this would have on the possible need for

hip replacement surgery depends on Amy Brossett’s future weight and activity levels,

which are unknown. Accordingly, it is argued that the opinion offered of a need for

a future hip replacement is speculative and, as such, cannot serve as a basis for the

award of future medical expenses.

Amy Brossett contends that the award is supported by the testimony presented

by one of her treating physicians, orthopedic surgeon, Dr. Vanda Davidson (Dr.

Davidson), and her expert economist, Dr. Roy Douglas Womack (Dr. Womack). Dr.

Davidson opined that it was more probable than not that Amy Brossett would need

the hip replacement surgery in the future. He also testified that “there conceivably

could be some limited surgeries on the foot and on the knee down the road,” but

stated that those would be less likely than he anticipated the hip surgery would be.

Amy Brossett argues that Dr. Womack calculated that the conservative present

value of a future hip replacement surgery, alone, would be $36,052.00, based on the

current day costs associated with that surgery. Dr. Womack also took into

consideration the lost wages that would be incurred for six months of work that Ms.

Brossett would necessarily miss as a consequence of undergoing such a surgery. He

calculated a conservative estimate of this loss by taking into consideration Amy

Brossett’s current full-time pay rate of $6.25 per hour and determined that she could

face a loss of income in the amount of $6,500.00 if she were to undergo the surgery.

Therefore, although the total estimated future medical expenses, he concluded, would

be $42,552.00, she argues that the jury’s award is a reasonable award based on the

facts presented.

Future medical expenses are reviewed by an appeals court pursuant to the

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manifest error standard of review. Armentor v. Safeway Ins. Co., 07-805 (La.App. 3

Cir. 12/19/07), 972 So.2d 444 (citing Cormier v. Colston, 05-507 (La.App. 3 Cir.

12/30/05), 918 So.2d 541). A plaintiff seeking an award for future medical expenses

is required to establish those expenses “with some degree of certainty.” Armentor,

972 So.2d at 448. The plaintiff is required to show that it is more probable than not

that the expenses will be incurred. Id. We have held that “[a]wards will not be made

in the absence of medical testimony that they are indicated and setting out their

probable cost.” Id. Moreover, as we stated in Veazey v. State Farm Mut. Auto Ins.

Co., 587 So.2d 5, 8 (La.App. 3 Cir. 1991), “an award for future medical expenses

cannot be based on mere speculation of the jury. Much stronger proof, such as

medical testimony of the specific expenses to arise, should be required for such an

award.”

Given the opinion of Dr. Davidson that it was more probable than not that Amy

Brossett would need hip replacement in the surgery due to her likely development of

degenerative arthritis in that hip, but that he opined that it was less likely that the

other medical surgeries mentioned would be needed, we find that the $50,000.00

award for future medical expenses is not reasonably supported by the record.

Accordingly, we reduce the award of future medical expenses to $42,552.00.

General Damages

Standard of Review

General damages are defined as those awards that are “inherently speculative

in nature and cannot be fixed with mathematical certainty.” Wainwright v. Fontenot,

00-492, p. 6 (La. 10/17/00), 774 So.2d 70, 74 (citation omitted). The assessment of

the appropriate amount of these damages is, therefore, a question of fact to be

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determined by a judge or jury. Youn v. Maritime Overseas Corp., 623 So.2d 1257

(La.1993). The fact finder’s determination is accorded “great deference” on appeal,

therefore, the appeal court’s role is to review the exercise of that discretion. Youn,

623 So.2d 1257. Moreover, “[t]he facts submitted as evidence must be reviewed by

the appellate court in the light most favorable to the judgment rendered.” Venissat

v. St. Paul Fire & Marine Ins. Co., 06-987, p. 17 ( La.App. 3 Cir. 8/15/07), 968 So.2d

1063, 1074 (citing Arceneaux v. Domingue, 365 So.2d 1330 (La.1978)). The

supreme court has explained how to apply the standard of review for abuse of

discretion:

Each case is different, and the adequacy or inadequacy of
the award should be determined by the facts or
circumstances particular to the case under consideration.

In Reck [v. Stevens, 373 So.2d 498 (La.1979)], this
court disapproved the appellate court’s simply reviewing
the medical evidence and then concluding that the award
for those injuries was excessive, without taking into
consideration the particular effect of the particular injuries
on the particular plaintiff. This court further disapproved
of the use of a scale of prior awards in cases with
generically similar medical injuries to determine whether
the particular trier of fact abused its discretion in the
awards to the particular plaintiff under the facts and
circumstances peculiar to the particular case. The initial
inquiry is whether the award for the particular injuries and
their effects under the particular circumstances on the
particular injured person is a clear abuse of the “much
discretion” of the trier of fact. Gaspard v. LeMaire, 245
La. 239, 158 So.2d 149 (1963); Ballard v. National Indem.
Co. of Omaha, Neb., 246 La. 963, 169 So.2d 64 (1964);
Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127
(1967). Only after such a determination of an abuse of
discretion is a resort to prior awards appropriate and then
for the purpose of determining the highest or lowest point
which is reasonably within that discretion. Coco v.
Winston Industries, Inc., 341 So.2d 332 (La.1976); Bitoun
v. Landry, 302 So.2d 278 (La.1974); Spillers v.
Montgomery Ward & Co., 294 So.2d 803 (La.1974).

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The standard for appellate review of general damage
awards is difficult to express and is necessarily
non-specific, and the requirement of an articulated basis for
disturbing such awards gives little guidance as to what
articulation suffices to justify modification of a generous
or stingy award. Nevertheless, the theme that emerges
from Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149
(1963) through Coco v. Winston Industries, Inc., 341 So.2d
332 (La.1976), and through Reck to the present case is that
the 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.

Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260-61 (La.1993). We shall

apply this standard to the multiple general damage awards being challenged by the

defendants on appeal.

Pain and Suffering

The defendants argue that the jury’s award of $750,000.00 to Amy Brossett for

pain and suffering is abusively high and should be reduced to $300,000.00. The

defendants claim that the jury’s award does not reflect a consideration of Amy

Brossett’s “remarkable” recovery from her injuries, but rather reflects an

impermissible award based on sympathy. The defendants contend that the evidence

presented showed that Amy Brossett was walking and able to return to work six

months after the accident and that within two years she had completed all medical

treatment and had been released to return to work without restriction. The defendants

also contend that Amy Brossett has been able to return to a relatively normal lifestyle,

aside from her testimony of experiencing occasional knee pain, knee weakness, and

“catching” in her hip joint. The award, they argue, is out of the range of the quantum

16

of damages awarded in cases of multiple injuries such as hers and exceeds the

amounts awarded in cases to persons who were not able to return to work as quickly

as she was.

The record reflects that Amy Brossett was pinned in the wreckage of her

vehicle for well over an hour while she remained conscious and in excruciating pain.

She also watched and heard her husband die as they both lay trapped in the

wreckage. The evidence in the record further establishes that Amy Brossett suffered

severe injuries due to the crash. They were described by Dr. Davidson, one of her

treating orthopedic surgeons on the night of the accident. The most severe injuries

included multiple fractures in her right hip, which included a fracture to the socket

of the “ball and socket” joint of the hip (an acetabular fracture). She also suffered a

fracture to the upper femur bone of her right leg, an open fracture of the left kneecap,

and a severely dislocated and broken left foot. Her kneecap was removed, resulting

in an approximate ten percent disability. The broken foot was reset and the fractured

bones therein were surgically secured with multiple pins. Amy Brossett testified at

trial that she still suffers hip pain, experiences catching in her hip joint, suffers daily

pain and swelling in her left foot and legs. She is unable to sit or walk for long

periods of time due to the pain. Dr. Davidson testified that she experiences arthritis

at her sites of injury as well.

Amy Brossett was immobile for three months after the crash and was unable

to care for her infant daughter for months thereafter. Because of her injuries, she was

hospitalized and unable to attend her husband’s funeral. Besides suffering from grief

and shock, she testified to suffering fear, anxiety, and depression due to the reality of

having to raise and provide for her child, alone, for the first time. Although Amy

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Brossett worked full-time prior to the accident, testimony and evidence established

that Craig Brossett was the primary wage earner for the family, having worked two

jobs in the year prior to his death in order to provide for his family. Amy Brossett

testified that she was able to return to full-time work approximately one-year after the

accident, after progressing from a wheel-chair to a walker and finally to a cane. She

attributed her recovery accomplishments to needing to be able to take care of her

infant daughter.

Considering these facts, we find that the jury’s award for pain and suffering is

reasonably supported by the record and is not an abuse of its vast discretion in

quantifying these damages.

Loss of Enjoyment of Life

“Loss of enjoyment of life is a compensable component of general damages.”

McGee v. A C & S, Inc., 05-1036, p. 4 (La. 7/10/06), 933 So.2d 770, 774. It involves

the inherently speculative valuation of the quality of a person’s life and cannot be

definitively measured. Id. These damages refer to the “detrimental alterations of a

person’s ability to participate in the activities or pleasures of life that were formerly

enjoyed.” Id. at 773. Whether or not this element of general damages is recoverable,

however, is a question that depends on the particular facts of the case, and is to be left

to the discretion of the trier of fact to be determined on a case-by-case basis. Id.

The defendants claim that the award of $75,000.00 to Amy Brossett for loss of

enjoyment of life also constitutes an abuse of the jury’s discretion because she failed

to establish that after the accident she has suffered any limitations on her life, other

than not being able to play catch with her daughter. The award then contend, is

therefore, improperly based on sympathy, considering the minimal limitations Amy

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Brossett discussed during her testimony.

Testimony from Amy, her close friend, Cassie Campbell, who was also her

bridesmaid, in addition to that offered by her father and one of her aunts, Margaret

Bryant, all established that Amy’s life was altered by the accident. She has exhibited

a changed outlook on life after losing her husband and having to face raising and

supporting a child as a single mother. Testimony was offered that she exhibited more

fearfulness and nervousness after the accident. In regards to vehicles, she does not

allow Emily, who is now ten, to travel in a vehicle with anyone, even family

members, because of her experience. In addition, testimony was offered that her

physical limitations caused by the extensive injuries to both of her legs have limited

her ability to engage in activities such as athletic play with her daughter and other

activities, that she might want to engage in, such as shopping; she is simply not free

to do everything that she would like to do because of her physical condition, although

she makes an effort to live as normally as she can.

Accordingly, we do not find that the jury abused its wide discretion in

quantifying Amy Brossett’s damages for loss of enjoyment of life, based on the

evidence presented in the record.

Disability

Disability damages are recognized as those general damages constituting any

permanent disability or impairment that is secondary to the injuries sustained in the

accident. Matos v. Clarendon Nat’l Ins. Co., 00-2814 (La.App. 1 Cir. 2/15/02), 808

So.2d 841. In this case, the jury awarded Amy Brossett $40,000.00 in disability

damages. Defendants argue there was no proof presented at trial of any physical or

mental impairment, therefore, the damages constitute an abuse of discretion.

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We disagree. Testimony and evidence presented at trial established that Amy

Brossett was twenty-three years old when the accident occurred. There was no

testimony presented of her suffering from any physical or emotional disabilities or

pain prior to the accident. Rather, she was a newly married female, a working

mother, and caretaker of her home and infant child. As a consequence of the

accident, ten years later, she continues to suffer from pain and swelling in her foot

and legs, walks with a limp, and is unable to sit or stand for long periods of time,

limiting her ability to be mobile for long periods of time.

Dr. Davidson testified that she suffers from a ten percent weakness in her

ability to straighten out her leg caused by the removal of her kneecap. This loss of

the kneecap also causes problems with her ability to climb steps without needing a

support to stabilize herself. He stated that “the mid-foot fracture dislocation is

debilitating and the open fracture of the knee was certainly debilitating, with some

permanent impairment associated with these injuries.” He recognized her continuing

limitations by noting that her progress of recovery was “pretty balanced” considering

her ability to try to do what she can do with her continuing pain and swelling in her

foot, weakness in the knee, and catches in the hip.

Considering this, we cannot say that the jury’s award offends a sense of

fairness and constitutes an abuse of its discretion in the quantifying these damages.

Loss of Future Economic Support

Amy Brossett and her daughter, Emily, were awarded a joint award of

$500,000.00 for the loss of future economic support caused by Craig’s death. The

only calculation presented at trial was that offered by the plaintiffs’ expert economist,

Dr. Womack. Defendants contend that he testified that his calculations established

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a future loss (from the date of trial) of $394,531.00. They argue that $500,000.00

award is therefore, unsupported by the evidence presented and should be reduced to

$394,531.00. Amy Brossett contends that the jury’s award is reasonably supported

by the evidence presented, considering the fact that Dr. Womack’s calculation of the

present value of the total economic loss as a result of Craig’s death is $567,661.00.

The record shows that Dr. Womack indeed calculated a total economic loss

with a present value of $567,661.00. This figure was composed of two components.

He calculated the past economic loss suffered from the date of the accident to the date

of the trial, $173,130.00, and the amount of economic loss estimated post-trial

(future), in the amount of $394,531.00. These figures included Craig’s wages earned

in the year prior to his death, $19,592.00, and included a value for the loss of his

household services at $8.00 per hour for forty hours per week. Dr. Womack testified

that his calculation was conservative because it was based on Craig’s income earned

from working two jobs in 1997. He did not take into consideration Craig’s new job

as a delivery routesman for Borden that he had begun working approximately three

months before the accident. He was earning approximately $2,000.00 per month on

this new job—an estimated $5,000.00 per year more than he had earned in the year

preceding his death.

He further testified that he based his figures on a work-life expectancy of 22.15

years set forth by the Bureau of Labor Statistics. He stated that use of the Social

Security Administration’s (S.S.A.) statistics would have allowed him to estimate a

work-life expectancy of 32 years—ten more years than was actually used in his

calculation.

Amy Brossett contends that the jury heard and took into consideration this

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evidence of Craig’s new job and pay raise, as well as Dr. Womack’s testimony and

that of others, regarding Craig’s industriousness as a worker. Testimony from

multiple witnesses was presented, stating that Craig “did what it took” to provide for

his family, as evidenced by his working two jobs prior to obtaining the better-paying

job with Borden. The sentiment was that he would more than likely have continued

to generate more in wages over the course of his work life had he lived beyond the

age of twenty-four.

“An award for loss of support includes the loss of past support from the date

of death to the date of trial and loss of future support from the date of trial through

the duration of the decedent’s work-life expectancy.” Magee v. Pittman, 98-1164, p.

22 (La.App. 1 Cir. 5/12/00), 761 So.2d 731, 748-49. The process for determining this

measure of damages was further explained by the first circuit as follows:

Awards for future lost income are inherently
speculative and intrinsically insusceptible of being
calculated with mathematical certainty, thus the courts
must exercise sound judicial discretion to determine these
awards. The awards should be consistent with the record
and not work a hardship upon either party. Factors to be
considered in determining a proper award for lost future
income are the decedent’s physical condition before his
death, the decedent’s past work history and consistency
thereof, the amount the decedent probably would have
earned absent the death, and the probability that the
decedent would have continued to earn wages over the
remainder of his working life. See Robbins v. State,
Department of Labor, 31,590, p. 8 (La.App. 2nd Cir.
2/24/99), 728 So.2d 991, 996-97.

Id. at 749.

Regarding Craig’s health status, we find that the only testimony offered of a

negative health history was the fact that he was taking high blood pressure medication

before his death. No expert medical opinion was offered regarding a diminished life

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expectancy however. The jury heard Dr. Womack testify that the S.S.A.’s statistics

for work life expectancy were greater than the more conservative Bureau of Labor

Statistics’ figure that he used.

We recognize that the jury had the authority to accept and reject the testimony

of Dr. Womack and may have decided to consider the S.S.A.’s statistic for work-life

expectancy in its determination of future economic loss. They could have reasonably

concluded that it was more likely that Craig would have earned even more income

than the projected amounts set forth by Dr. Womack, based on the testimony

regarding his industriousness. A jury’s ability to consider such evidence and alter a

general damage award such as this, accordingly, has been recognized by this and

other courts:

The jury did not award the exact figure that either
expert calculated. Nevertheless, it is permitted to
“substitute common sense and judgment for that of an
expert witness when such a substitution appears warranted
on the record as a whole.” [Green v. K-Mart Corp., 03-
2495, p. 5 (La. 5/25/04), 874 So.2d 838, 843.] “Credibility
determinations are for the trier of fact, even as to the
evaluation of expert witness testimony. A fact-finder may
accept or reject the opinion expressed by an expert, in
whole or in part.”

Guidry v. Coregis Ins. Co., 04-325, p. 24 (La.App. 3 Cir. 12/29/04), 896 So.2d 164,

185. Accordingly, we find no abuse of the jury’s discretion in quantifying the

damages of future of loss of economic support in the amount of $500,000.00.

Wrongful Death Damages to Emily Brossett Porche

The jury awarded Emily Brossett Porche $500,000.00 in damages for the

wrongful death of her father. The defendants argue that this award is abusively high

because Emily was an infant when her father was killed and lacked the requisite

awareness of his death to justify such an award. Moreover, they argue that no

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evidence was presented regarding any negative effect that Craig’s death has had on

her life. Rather, they contend, it was established that Emily is a well-adjusted child.

According to the defendants, then, the jury’s award is improperly based on sympathy

and speculation, and for this reason, the wrongful death award should be reduced to

$50,000.00, commensurate with other cases in which infants were awarded wrongful

death damages due to the loss of a parent.

The plaintiffs argue that the award is not an abuse of discretion, considering

the testimony that was presented to the jury of the dedication to, and love of, Emily

that Craig showed her as an infant. He was a “hands-on” father and family-man who

spent the majority of his free time with his family. He was consistently described in

testimony offered by family members and friends as an extraordinary father who had

a strong sense of love and devotion for his child; he cried when she was born,

participated in her daily care, and “always had her in his arms.” Amy Brossett

testified that a large measure of her grief was based in knowing that Emily would not

know Craig and that she had suffered the loss of a great father.

We find that the facts and evidence presented support the jury’s award of

$500,000.00 to Emily for the wrongful death of her father. A wrongful death action

seeks to compensate a beneficiary for his or her own injuries suffered from the

moment of the victim’s death and thereafter. McGee, 933 So.2d 770. It is undisputed

that Craig was a doting father. We recognize that a child’s loss of a parent is a

lifelong loss and, in this particular case, the jury must have been impressed by the

extent of the loss imposed on Emily by her father’s premature death. Based on the

testimony presented of Craig’s pre-death efforts and involvement with his child, it is

almost certain that he would have been an integral part of her life. Emily was ten

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years old at the time of the trial of this matter, and still faces a future of great life

events that will be passed without her father’s presence and involvement as well;

therefore, we cannot say that the jury abused its discretion in quantifying this award

of wrongful death damages, in this amount, considering the particular facts of this

case.

Exemplary Damages

In Amy Brossett’s Answer to the defendants’ appeal, she seeks a reversal of the

jury’s denial of exemplary damages. She asserts that the elements were satisfied for

an award of exemplary damages pursuant to La.Civ.Code art. 2315.4, and that the

jury abused its discretion in failing to assess these damages. She argues that Howard

was clearly intoxicated but attempted to drive herself home anyway, expressing a

wanton and reckless disregard for the safety of the public. Amy Brossett also asserts

that Howard’s intoxicated driving caused the accident that killed Craig Brossett and

left her with severe injuries. Amy Brossett requests that separate awards of

$125,000.00, each, be granted to her and her daughter, Emily.

The defendants contend that the elements of La.Civ.Code art. 2315.4 were not

met in this case and that the jury’s decision was not manifestly erroneous. They also

argue that the jury possessed discretion to deny exemplary damages, and in this case,

its decision to reject an award of exemplary damages was reasonable.

Louisiana Civil Code Article 2315.4 states:

Art. 2315.4. Additional damages; intoxicated defendant

In addition to general and special damages,
exemplary 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.

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In summary, exemplary damages may be awarded upon proof (1) that the defendant

was intoxicated or had a sufficient quantity of intoxicants to make him or her lose

normal control of his mental and physical facilities; (2) the drinking was a

cause-in-fact of the accident; and (3) the injuries were caused by a wanton and

reckless disregard for the rights and safety of others. See Brumfield v. Guilmino, 93-

366 (La.App. 1 Cir. 3/11/94), 633 So.2d 903 (citation omitted).

“Whether the elements requisite to recovery under [La.Civ.Code] art. 2315.4

have been proven is a question of fact, not to be set aside in the absence of manifest

error.” Angeron v. Martin, 93-2381, p. 4 (La.App. 1 Cir. 12/22/94), 649 So.2d 40,

43. However, the decision to award exemplary damages rests within the discretion

of the trier of fact. La.Civ.Code art. 2315.4; see Khaled v. Windham, 94-2171

(La.App. 1 Cir. 6/23/95), 657 So.2d 672, writ dismissed, 95-1914 (La. 11/1/95), 661

So.2d 1369; Boulmay v. Dubois, 593 So.2d 769 (La.App. 4 Cir. 1992). Even when

the plaintiff proves the elements of the statute, the jury does not abuse its discretion

in refusing to award exemplary damages when the statute does not mandate it.

Khaled, 657 So.2d 672.

Although cases such as these are tragic, the record reasonably supports the

jury’s choice to not award exemplary damages in this case. Howard testified at the

trial and obviously impressed the jury with her remorsefulness. The jury could have

taken into consideration her admission of fault and liability, as well as her submission

of a blind plea of guilt to the criminal court. The jury may have been impressed by

her lack of a negative driving history or criminal record prior to the accident and her

clean driving record since completion of the related criminal proceedings. Moreover,

the jury may have positively viewed Howard’s compliance with her court-ordered

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restitution payments and orders to speak with groups regarding the consequences of

her decision to drive while intoxicated. Howard testified that her continued status as

a felon has prevented her from returning to her career as a perfusionist (operator of

the heart and lung machine during open heart surgeries), because she is unable to

obtain privileges to work in hospitals.

The jury also heard testimony regarding Howard’s attempts to get a designated

driver as the evening progressed. She testified that once she recognized that she was

intoxicated, she stopped drinking alcohol and drank water instead, in attempts to

make herself sober. She also began asking co-workers to make sure that she got

home safely. This all may have been considered by the jury as a self-awareness of her

impaired condition and attempts, although unsuccessful, to do no harm.

Consequently, although we would have sustained an award for exemplary

damages if the jury had rendered such an award, we find no abuse of discretion on the

part of the jury in failing to award exemplary damages in this case.

CONCLUSION

The Exception of No Right of Action is overruled. The judgment of the trial

court is amended to reflect a reduced award of $42,552.00 in future medical expenses

to Amy Brossett. All other damages set forth in the judgment are affirmed. Costs of

this appeal are assessed to defendants-appellants-appellees, Melody Howard and

Progressive Insurance Company.

EXCEPTION OVERRULED; JUDGMENT AFFIRMED, AS AMENDED.

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