Byron P. Guillory v. Jennifer D. Lee

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-661

BYRON P. GUILLORY

VERSUS

JENNIFER D. LEE, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20060160
HONORABLE JOHN DAMIAN TRAHAN, 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, and
Oswald A. Decuir, Judges.

AMENDED IN PART AND, AS
AMENDED, AFFIRMED; REVERSED IN
PART AND RENDERED.

Randall Lee Guidry
503 West University
Lafayette, LA 70506
Telephone: (337) 233-8800
COUNSEL FOR:
Plaintiff/Appellant - Byron P. Guillory

Ian A. Macdonald
Longman Russo, APLC
P. O. Drawer 3408
Lafayette, LA 70502-3408
Telephone: (337) 262-9000
COUNSEL FOR:
Defendant/Appellee - Progressive Security Ins. Co.

Melvin Alan Eiden
701 Robley Drive - #210
Lafayette, LA 70503
Telephone: (337) 981-0309
COUNSEL FOR:
Plaintiff/Appellant - Byron P. Guillory

Brian K. Abels
Boyer & Hebert, LLC
133 Aspen Square - Suite F
Denham Springs, LA 70726
Telephone: (225) 664-4335
COUNSEL FOR:
Defendant/Appellee - Cox Communications, La., LLC

THIBODEAUX, Chief Judge.

Plaintiff, Byron P. Guillory, appeals a judgment against his

uninsured/underinsured (UM) motorist carrier, Progressive Insurance Company,

pursuant to a jury verdict which awarded him less than the special and general

damages he sought. He also appeals the jury’s refusal to find that the UM carrier was

arbitrary and capricious in its handling of his claim. Guillory’s motion for a judgment

notwithstanding the verdict (JNOV) and for a new trial was denied.

We amend and affirm in part.

I.

ISSUES

We must decide:

(1) whether the jury abused its discretion in awarding
$40,000.00 for past medical damages;

(2) whether the jury abused its discretion in its award of
$10,000.00 in general damages;

(3) whether the jury abused its discretion in refusing to
make an award for loss of enjoyment of life;

(4) whether the jury abused its discretion in failing to
find the defendant arbitrary and capricious; and

(5) whether the trial court abused its discretion in failing
to grant the plaintiff a new trial.

II.

FACTS AND PROCEDURAL HISTORY

Mr. Guillory and his daughter were traveling in the right turning lane of

Kaliste Saloom near its intersection with Camellia in Lafayette, Louisiana, when Mr.

Guillory’s truck was struck by a sports utility vehicle (SUV) driven by Jennifer Lee.

The SUV hit the truck at the left rear quarter panel and bumper, wedging itself under

the bed of the truck and pushing it sideways before releasing it. The passenger side

of the SUV then scraped alongside the driver side of the truck for the length of the

vehicles, tearing the SUV’s passenger side mirror from its bracket and damaging the

sides of both vehicles. Mr. Guillory was belted but nevertheless was rotated to the

left and thrown forward and back in the cab of his truck. He hit his head on the

headrest and bent his right thumb backward on the steering wheel or column. Mr.

Guillory sustained various personal injuries, including injuries to his neck, back, jaw,

and right thumb.

Ms. Lee was insured by State Farm Insurance but carried only the

minimum coverage required by law. Mr. Guillory settled with Ms. Lee and State

Farm Insurance, receiving a total of $10,000.00 from those defendants. Mr. Guillory

received $5,000.00 in medical coverage from his UM carrier, Progressive, and he

subsequently received a tender of $5,020.00 from Progressive after filing suit in 2006.

In the almost three years between the accident and the trial, Mr. Guillory underwent

treatment for his injuries, including a discogram and two micro discectomies. He

submitted medical bills in excess of $98,000.00. At trial, Mr. Guillory asserted that,

as a result of the subject accident, he was entitled to special damages for the full

amount of his past medical expenses, general damages in an appropriate amount for

pain and suffering, damages for loss of enjoyment of life, and damages for future

medical expenses. Additionally, he alleged that Progressive was arbitrary and

capricious in failing to make a fair and timely unconditional tender based upon his

damages and the proof of loss.

The jury awarded Mr. Guillory $40,000.00 for past medical expenses and

$10,000.00 for past and future pain and suffering. Mr. Guillory appeals the amounts

of both awards. There was testimony that Mr. Guillory would possibly require a two-

2

level fusion and that the cost would be roughly $12,000.00 to $15,000.00. The jury

awarded $10,000.00 for future medical expenses. Mr. Guillory does not appeal that

award. The jury made no award for loss of enjoyment of life and found no arbitrary

and capricious conduct on the part of Progressive Insurance. Mr. Guillory appeals

both of those findings. He also appeals the trial court’s judgment denying his

requests for JNOV and for a new trial. However, Mr. Guillory did not brief the JNOV

issue. We, therefore, consider it abandoned. We will address the remaining issues.

III.

LAW AND DISCUSSION

Standard of Review

An appellate court may not set aside a trial court’s findings of fact in the

absence of manifest error or unless it is clearly wrong. Stobart v. State, Through

DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989).

Past Medical Expenses

Mr. Guillory contends that the jury’s award of $40,000.00 was an abuse

of discretion where he submitted medical bills for $98,272.32. He argues that

medical bills can be determined with exactitude, citing Stevens v. Winn-Dixie of

Louisiana, 95-0435 (La.App. 1 Cir. 11/9/95), 664 So.2d 1207, and that there is no

rationale for the even amount of $40,000.00, as awarded by the jury in this case. Mr.

Guillory asserts that the only logical explanations are that the jury ignored the trial

court’s instruction on the collateral source rule,1 discounting health insurance

payments made on his behalf, and further ignored the instruction regarding the weight

1
Under the collateral source rule, a tortfeasor may not benefit, and an injured plaintiff’s
recovery may not be reduced, because of money received by the plaintiff from sources independent
of the tortfeasor’s contribution. Boutte v. Kelly, 02-2451 (La.App. 4 Cir. 9/17/03), 863 So.2d 530,
writ denied, 04-0071 (La. 5/21/04), 874 So.2d 172.

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given to treating physicians. Progressive argues that Guillory had pre-existing

conditions, as well as incidents subsequent to the accident at issue, and that the jury

merely refused to award damages for unrelated injuries. However, Progressive does

not dispute the amounts of the various bills submitted or try to calculate which

expenses the jury might have considered related and unrelated.

Mr. Guillory does not deny that he had been in treatment for cervical

disc disease for several years prior to this accident on January 14, 2005. Due to a disc

herniation at the C5-6 level, Mr. Guillory had undergone a micro surgical discectomy

at that level in 1997 and had been in pain management with Dr. Norman Anseman

before and after this accident. However, Dr. Anseman testified that Mr. Guillory

developed a herniation at C6-7 as a result of this accident that has greatly increased

the severity of his neck problems and which could lead to damage of his spinal chord.

We have held that a plaintiff’s cervical spine injury and degenerative disc disease

several years before an accident do not entitle a jury to award less for past medical

expenses than the bills for treatment related to the accident at issue. See Venissat v.

St. Paul Fire & Marine Ins. Co., 06-987 (La.App. 3 Cir. 8/15/07), 968 So.2d 1063.

The January 14th accident worsened Mr. Guillory’s cervical problems,

causing a new disc herniation at C6-7, an aggravation and re-injury of the disc at the

C5-6 level, aggravation of carpal tunnel syndrome bilaterally, aggravation of

temporomandibular joint dysfunction (TMJ), and a left iliolumbar ligament strain that

aggravated a prior lumbar condition. Mr. Guillory testified that prior to the accident,

he saw Dr. Anseman three or four times a year for spasms in his neck and was treated

with trigger point injections which loosened the muscles. Mr. Guillory is an attorney

whose hobby and/or pastime is heavy construction and woodworking. He testified

that he was able to do anything he wanted to in that regard before the accident, and

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that he could anticipate the amount of pain that would result by the amount of

exertion expended. He indicated that if he read too long at his desk, did roofing

work, or poured a foundation, he would take pain medication in the evening. If he

did not exert himself, he did not need any medication. Prior to the accident, Mr.

Guillory took on average one-half of a Lortab in the evenings.

Mr. Guillory stated that after the accident, he had constant neck and back

pain at a higher level, with pain and numbness shooting down his arms, without

exertion. He stated that he never had radiating pain in his arms before the January

2005 accident. He did have forearm pain on one visit to Dr. Anseman years before,

but it was of a different nature, and not the radiating pain he experienced after the

accident. Mr. Guillory also previously had a carpel tunnel release in his left hand,

which is his dominant hand, but did not need to have a procedure on his right hand.

Mr. Guillory testified that prior to the accident he had a problem with grinding his

teeth but he never had to see a specialist about this TMJ problem until after the

accident.

The radiating pain that Mr. Guillory suffered in his arms is indicative of

the disc injury at the C6-7 level. An MRI done on February 22, 2005, after the

January accident, showed a bulging disc at the C6-7 level. Mr. Guillory continued

treating with Dr. Anseman in 2005 and had improved significantly by October, but

suffered setbacks in 2006. On November 3, 2006, Mr. Guillory had a CT scan

showing a herniation at C6-7 and nerve root deformity at C5-6. On the same date he

had a myelogram showing nerve root damage at left C-7 and at right C5-6.

When questioned by counsel for Progressive regarding the herniation of

the disc at C6-7, Dr. Anseman testified as follows:

Q. Do you attribute that herniation to this accident?

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A. Yes.

Q. Based upon what?

A. Based upon how he was doing, how he presented to me
throughout the years, never having nerve root pain in either
arm, never having a neurological deficit in his left arm and
now exhibiting signs and symptoms that are compatible
with this disc herniation with the . . . the muscles that are
weak in his arms are those that are primarily innervated
[enervated] by the C7 nerve root, not the C6, not the C5,
not the C8 but the C7. And that is compatible with his disc
herniation in his neck. He never had that before. And I’m
an obsessive/compulsive when I see patients. I always do
a neurological exam on patients, and he never once showed
weakness down this distribution at any time in the years
preceding that automobile accident. . . .

....

There’s only one nerve root that’s common to the muscles
that he is weak in and that’s C7. That is the generator of
his weakness; that’s the generator of his pain.

Dr. Anseman’s testimony was taken in April of 2007. He testified at that

time Mr. Guillory was a candidate for surgery at the C6-7 level and testified Mr.

Guillory was trying to avoid another surgery. In order to avoid surgery, Dr. Anseman

testified that he had to administer a significantly increased amount and strength of

pain medication which was evident in Mr. Guillory’s flow chart of pain medication.

He advanced Mr. Guillory from a class three narcotic to a class two narcotic for pain

management.

In March of 2007, Mr. Guillory began treating with Dr .Arnold Feldman,

an anesthesiologist specializing in pain management. Dr. Feldman testified that he

ordered a CT scan and an MRI. The MRI showed disc protrusions which he read as

“absolute” herniations on the films themselves at C5-6 and at C6-7. The CT scan

likewise was abnormal and showed narrowing of the spinal canal. Dr. Feldman

testified that these diagnostic tests correlated with Mr. Guillory’s neck and arm pain,

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and that his complaints were absolutely consistent in both severity and location. Dr.

Feldman ultimately had Mr. Guillory undergo a painful discogram, a procedure

during which the doctor injected dye, causing the two discs to bulge for a split second

to determine whether discectomies were warranted. The procedure was performed

in an operating room setting.

The results were positive at both levels. Dr. Feldman performed the C5-

6 discectomy on October 3, 2007, shortly before trial. The C6-7 discectomy was

scheduled October 29, 2007, the day after Mr. Guillory’s testimony was given at trial.

The cost of the first discectomy was $48,822.00 and Dr. Feldman testified that the

one performed during trial should be about the same. However, the bills submitted

by Mr. Guillory for Dr. Feldman’s expenses totaled $75,698.00. Dr. Feldman

reviewed Dr. Anseman’s records and testified that Mr. Guillory’s symptoms and

objective findings after the accident on January 14, 2005 indicate that the accident

was a contributing factor for the pinched nerves at C5-6 and C6-7.

Progressive argues that Mr. Guillory caused the disc bulge at C-7, which

appeared for the first time on the February 2005 MRI, to escalate into a herniation

when he worked on his fishing camp after Hurricane Rita in the Fall of 2005.

Progressive claims the herniations and nerve root damage did not appear until the

cervical myelogram and CT scan were done on November 3, 2006. Mr. Guillory

testified he did not do heavy work at the camp, as there was no structural damage, but

did only small scale debris removal and supervision. He testified he did not even

swing a hammer. Dr. Anseman’s records indicate a setback in Mr. Guillory’s

symptoms due to work at the camp between the October 2005 and February 2006

visits.

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However, Dr. Anseman pointed out that Mr. Guillory had C-7 signs and

symptoms in his arms for the first time after the accident, prior to the camp episode.

This testimony is corroborated in the February 22, 2005 MRI showing the disc bulge

at C6-7 and Dr. Anseman’s report on March 24, 2005 showing cervical radiculopathy

on the right at C-7. At that time, Dr. Anseman also reported lumbar spondylosis with

possible S1 radiculopathy and soft tissue injury to the right thumb. In April 2005, Dr.

Anseman reported ligamentous damage at C5-6. None of the injuries at C6-7 existed

prior to the January 2005 accident, and none of the aggravated injuries at the C5-6

level existed after the 1997 surgery at that level until after the January 2005 accident.

The evidence indicates that the accident caused the bulge. The fact the injury could

have escalated to a herniation while Mr. Guillory performed light activities does not

negate the fact that the auto accident caused the disc problem at C-7. There was no

evidence of trauma at the camp. Progressive further argues that a fender bump in a

parking lot incident in November 2005 could also have been a cause of the disc

herniation. However, once again, the record contains no evidence of trauma after the

January 2005 accident. The rupture at C6-7 had already begun in February 2005 as

evidenced by the February 22nd MRI.

Progressive argues that the physician who conducted the independent

medical examination on behalf of Progressive, Dr. Vic Parmar, opined that Mr.

Guillory’s herniated disc was not caused by the January 2005 accident because the

February MRI did not show a herniation at C6-7. As previously indicated, that MRI

did show a bulging disc at C6-7. Dr. Parmar, an orthopedist, met with Mr. Guillory

for one hour in July 2007, took a history, apparently misunderstood part of that

history, and rendered an opinion without studying Dr. Anseman’s records , which had

been provided to him. Dr. Parmar did admit that he had no reason to think that Mr.

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Guillory was untruthful. He reported that Mr. Guillory’s triceps were absent reflexes

bilaterally, which was evidence of C-7 nerve root injury and dysfunction, just as Dr.

Anseman had stated. Dr. Parmar also admitted that the myelogram, which showed

the C6-7 herniation in November 2006, is the gold standard in his field and can show

causes of pain that the CT and MRI do not show.

Mr. Guillory asserts that the jury’s award of $40,000.00 in past medical

expenses is not supported by the evidence and, moreover, is not subject to any logical

interpretation. He asks valid rhetorical questions: If the jury did not believe that the

injuries and surgeries were caused by the subject accident, why did it award damages

for future medical expenses three years after the accident? And, why did it award part

but not all of Dr. Feldman’s expenses, all of which were incurred three years after the

accident? More specifically, Mr. Guillory points out that his medical expenses prior

to treating with Dr. Feldman were around $20,000.00, yet the jury awarded twice that

much in past medical expenses. Therefore, the jury must have included some of Dr.

Feldman’s expenses in its award. As Dr. Feldman testified that both his treatment of

Mr. Guillory and the discectomies he performed were a result of the subject accident,

we find the jury award contrary to the law and evidence.

Similarly, in Abshire v. Wilkenson, 01-75 (La.App. 3 Cir. 5/30/01), 787

So.2d 1158, the plaintiff had prior neck problems. The jury rendered a verdict

awarding the plaintiff $9,980.00 in past medical expenses from the date of the

accident through his treatment with one certain physician. However, three physicians

all agreed that the accident aggravated the plaintiff’s pre-existing condition and

resulted in the need for surgery. There was testimony that surgery was not needed

before the accident. This court found that the plaintiff therein was entitled to recover

medical expenses for his surgery and his post-surgical care since these were a

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consequence of the subject accident. In Abshire, 798 So.2d 1158, which we find

analogous to the present case, we amended the judgment of the trial court to award

past medical expenses of $77,991.20. Accordingly, we amend the award of past

medical expenses to Mr. Guillory from $40,000.00 to $98,272.32.

General Damages

In this case, the jury awarded $10,000.00 in general damages to Mr.

Guillory. This amount, awarded three years after the accident, represents past and

future pain and suffering. Mr. Guillory argued that this amount was abusively low.

Mr. Guillory testified that prior to the accident he had pain flare-ups depending on the

level of his activities. After the accident, he had constant pain in his neck and back

and shooting pain down his arms without activity. In addition to the testimony

previously discussed regarding Mr. Guillory’s inability after the accident to do heavy

construction, the testimony shows he also has to be very careful of every mechanical

move he makes, where he sits, and how far up he tilts his head. We also note Dr.

Anseman reported prior to the accident Mr. Guillory did not have pain upon coughing

or sneezing. After the surgery, he exhibited pain symptoms after these common static

activities.

One aggravation of a pre-existing condition that no one has discussed

in much detail is the TMJ. The record indicates that Mr. Guillory’s treatment with

Dr. Pearce for the first time regarding the TMJ, included handouts containing over

twenty rules of “do’s and don’t’s,” but mostly “don’t’s” regarding the position of his

head while doing normal daily activities like standing, sitting, laying, walking,

looking, etc.

Mr. Guillory’s physical pain also took a toll on him emotionally and

mentally. Mr. Guillory testified his wife was in an accident with a bus and sustained

10

a form of brain damage that prevented her from being able to bathe or cook without

help. Prior to his accident, Mr. Guillory provided most of the care for his wife. After

his accident, he could no longer do many of the things she needed. At the time of

trial, he testified his young teenage daughter took on those responsibilities.

Accordingly, he worried constantly about them and what they might be going through

that they would never burden him with, things they weren’t telling him. Mr. Guillory

also had frustrations and concerns after the accident because he could no longer be

the super-dad with his daughter, riding four-wheelers with her and working the duck

blinds with her. He worried constantly about re-injury, feeling the weight of

responsibility of not hurting himself any worse and incurring more restrictions.

The aggravation of Mr. Guillory’s lumbar problems has not led to any

surgeries. The worst injury was to Mr. Guillory’s neck. Mr. Guillory sustained a disc

injury at C-7 which resulted in a herniation and radiculopathy with pain radiating

into both arms. Neck injuries are aggravated, not only by physical labor or exertion,

but also by everyday stress at work, including mental stress working at a desk and on

a computer. Mr. Guillory is an attorney by profession. Therefore, in his case, stress

is an occupational hazard and is unavoidable. While he lost some work time after the

accident, he felt that it was inappropriate to make a claim for it since he is self-

employed and feels that he could somehow make up the time. The record indicates

a history for Mr. Guillory of pushing through various levels of pain and stress.

As a result of this accident, Mr. Guillory’s pain medication was

increased in strength and frequency. Hydrocodone in the form of Lortab 7.5 was

increased to maxidone 10. Acetaminophen went from 325 milligrams to 750

milligrams. Dr. Anseman also prescribed seroquel for sleep. He gave Mr. Guillory

lidoderm patches (novocaine in patch form), which did not help him. Dr. Anseman

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then went from maxidone to avinza, a morphine sulfate preparation, and added lyrica,

the gold standard for nerve pain. Dr. Anseman testified that nerve root pain can be

very severe and difficult to manage. He further testified Mr. Guillory did not have

to deal with nerve root pain before the accident. Additionally, Mr. Guillory has to

manage his pain and his medication without interfering with his thinking processes

at work.

Ultimately, the increase in pain medication was not enough. Mr.

Guillory had to undergo the painful discogram and the two discectomies described

by Dr. Feldman. At trial, Mr. Guillory testified that the first and very recent

discectomy seemed to relieve the pain in his arms, but he thought the neck pain was

worse. Dr. Feldman testified that it was too soon to know whether the discectomies

would be successful. If not, the next step is a two-level fusion, from which it takes

six months to recover. That will mean more pain medication as well. Dr. Parmar,

who agrees that fusion would be the next step, and who might actually perform the

fusion, testified that he requires the patient to wear a collar, to prevent him from

looking down, for two weeks, and after that the patient can do no manual labor, or

hunt, or lift more than ten to fifteen pounds. Three years of past physical and mental

pain and suffering and the probability of ongoing pain and suffering, of the nature

evidenced in the record, does not support the jury’s total award of $10,000.00 for all

past and future physical and mental pain and suffering. We agree that the award is

abusively low and amend the award to $150,000.00.

Loss of Enjoyment of Life

The jury declined to award Mr. Guillory damages for loss of enjoyment

of life. As a threshold matter, we note that the Louisiana Supreme Court has

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recognized this loss as a separate element of monetary damage. See McGee v. A C

And S, Inc., 05-1036 (La. 7/10/06), 933 So.2d 770.

Mr. Guillory testified that prior to this accident, he could do anything

that he wanted to do such as heavy construction, roof work, foundation work, or

playing music. He built his camp board by board over the years, as well as an

addition to his house; he did plumbing lines if need be; he was a regular at the home

improvement stores. He testified that he might pay for over-exertions, but he could

manage the pain with the judicious use of his pain medication and by choosing how

much he wanted to accomplish. However, after this accident, he had pain without

activity; Dr. Anseman advanced him to a higher class of narcotics; and, he still could

not do many of the things he enjoyed, including being the kind of father and husband

that he wanted to be. The record indicates that Mr. Guillory made a significant

improvement over the summer of 2005, but the bulging disc began to rupture and he

had a lot of pain in 2006. Dr Anseman restricted him to lifting no more than twenty

pounds for the remainder of his life. In February of 2007, Dr. Anseman diagnosed

Mr. Guillory with bilateral C-7 radiculopathy; bilateral C-7 root lesion; and

administered cervical epidural steroid injections for the first time.

Progressive argues that because Mr. Guillory went elk hunting once a

year with a client, took a couple of fishing trips, and took his wife to Las Vegas for

their anniversary, he has not suffered any loss of enjoyment of life. However, some

of Mr. Guillory’s traveling has been work-related, and no dates are provided for these

excursions. The record indicates that the island fishing trip may have taken place in

the summer of 2005 when Mr. Guillory was receiving benefits from his treatment,

after the bulge at C6-7 was reported, but before it developed into a herniation. Mr.

Guillory was in his mid-forties at the time of the accident, and he tried to follow Dr.

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Anseman’s orders regarding swimming and lifting weights at the appropriate times

during his treatment. He is not alleging that he has been rendered an invalid and is

entitled to compensation for loss of enjoyment of life on that scale for the remainder

of his life. He is seeking appropriate damages.

Dr. Anseman testified on April 17, 2007, that in addition to the post-

accident restriction of not lifting more than twenty pounds for the remainder of his

life, he had given Mr. Guillory other instructions regarding his neck and extension.

For example, he did not want him going to a basketball game and looking up, nor

sitting out on the two yard line in the first row bleachers at LSU stadium and looking

up at kickoffs. Dr. Anseman testified that these restrictions are much more severe

than any that he had given before the accident because now that Mr. Guillory had

bilateral symptoms, he was in danger of damaging his spinal chord, which would

require emergency surgery. Dr. Anseman stated that Mr. Guillory had to be

obsessive/compulsive about what he did with his neck, how he worked at his

computer, and he had to eliminate all mechanical stress as much as he possibly could.

These concerns and limitations were expressed by Dr. Anseman after the January

2005 accident and before the treatment and surgeries performed by Dr. Feldman in

October of 2007.

As previously indicated, the first of those surgeries appears to have

helped arm pain but increased neck pain. A two level fusion has already been

discussed, with its additional recovery period, and more severe restrictions on Mr.

Guillory’s daily activities, and on his work and family life. The record clearly

supports a finding that he has suffered a daily loss of enjoyment of life which was

continuing at trial and will continue in the future, whether he has the two-level fusion

surgery or not. Consequently, we award $24,000.00.

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Arbitrary and Capricious Conduct

Mr. Guillory purchased UM coverage from Progressive in the amount

of $250,000/$500,000. He argues that Progressive was arbitrary and capricious in

failing to make a timely second tender after it had knowledge of the plaintiff’s

injuries, causation, and the fault of the underinsured driver, Jennifer Lee. He also

argues the jury abused its discretion in failing to so find.

In this case, Progressive paid Guillory $5,000.00 under the medical pay

portion of Guillory’s policy, then filed suit against the parents of the seventeen-year-

old Jennifer Lee to recover the $5,000.00, alleging she was 100% liable for the

accident. Subsequently, Progressive made an unconditional tender to Guillory for

$5,020.00 after he rejected that amount as a full and final settlement. At no time did

Progressive make another tender to Guillory for his damages. The following time line

will clarify the sequence of events regarding this time sensitive issue.

1/14/05 Date of Accident.

1/21/05 Plaintiff put Progressive on notice via fax
attaching police report and statements of
Guillory and Lee.

1/21/05 Sally Jones gave a telephone statement to
Progressive stating that Lee was at fault,
swerving in and out of lanes, and hit Guillory.

1/10/06 Progressive filed suit against Lee to recover
$5,000.00 Medical payment to Guillory,
alleging her to be solely at fault for the
accident.

1/11/06 Guillory filed suit against Lee, State Farm,
and Progressive. Progressive subsequently
answered, asserting affirmative defense that
Lee was not at fault.

2/10/06 Guillory sent Progressive proof of loss in the
form of medical records of Dr. Anseman
(including 2/22/05 MRI showing new disc
bulge at C6-7), and records of Drs.

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Domingue, Vreeland, and Pearce. The bills
totaled $11,957.00.

2/22/06 Progressive made unconditional tender of
$5,020.00, after Guillory rejected that amount
as a full and final settlement.

5/10/06 Progressive amended its answer to assert
sudden emergency and the fault of the Cox
Cable van driver.

5/18/06 Progressive transcribed the statements of
Sally Jones and Mr. Guillory which had been
taken on 1/21/05.

6/21/06 Guillory made request for McDill tender,
setting forth his pre-existing cervical
problems and eight new post accident
diagnoses; asked to schedule depositions of
Jennifer Lee, Amy Young and Sally Jones.
Depositions did not take place until June
2007.

8/8/06 Progressive dismissed its suit against Lee and
State Farm before depositions were taken.

3/20/07 Dr. Anseman sent his medical records to
Progressive, including diagnostic test reports
from November 2006, showing herniation at
C6-7 and deformity at C5-6.

3/21/07 Guillory began treating with Dr. Feldman.

3/26/07 Progressive increased its reserves from $29,000 to
$75,000.

4/17/07 Progressive deposed Dr. Anseman, who
testified that accident caused new injuries,
herniation at C6-7, and attendant problems.

6/05/07 Jennifer Lee, Amy Young, and Sally Jones
were deposed.

7/03/07 Guillory requested a McDill tender for
general damages via nine-page letter
summarizing depositions and indicating a
potential claim for bad faith.

16

7/20/07 Guillory underwent Progressive’s IME with
Dr. Parmar, who testified that accident did not
cause the disc herniation at C6-7.

7/26/07 Guillory amended suit to add bad faith claims.

9/07/07 Guillory sent letter to Progressive attaching
bills from Dr. Feldman in the amount of
$16,100.00.

Oct. 2007 Guillory underwent a discogram and two
discectomies, bringing Dr. Feldman’s bills up
to $75,698.00.

Mr. Guillory argues that Progressive knew that it was liable and that

there was causation because Progressive sued Lee, alleging her to be 100% at fault

at the same time it defended Guillory’s suit by stating an affirmative defense that Lee

was not at fault. Moreover, Progressive never sued Cox to recover the $5,000.00

medical payment. Progressive argues that it had a reasonable basis not to make a

second tender, but rather to defend the claim, and to act in good faith reliance on that

defense where there were questions regarding causation and the extent of related

damages. However, our review of the time line of events indicates that Progressive

was arbitrary and capricious in failing to timely resolve those issues.

More specifically, Progressive did not transcribe the January 2005

statements of Guillory and an independent witness, Sally Jones, until May 18, 2006,

almost a year and a half after the accident. The depositions of Lee, her passenger,

Amy Young, the Cox van driver, Shannon Vice, and witness Sally Jones, were not

taken until June of 2007, two and a half years after the accident. In fact, Progressive

dismissed Lee and State Farm in August 2006, ten months before the depositions took

place in June 2007. The testimony in those depositions confirmed the fault of

Jennifer Lee. Lee testified that the Cox van may not have crossed over into her lane

after all. Young testified that Lee was on her cell phone while the van was

17

approaching and that Young had to alert Lee of the van’s presence. Young also

testified that the movement of the van was gradual, not sudden. Jones testified as

before, in her January 2005 statement, that she never saw the van, and that she only

saw Lee swerving and driving erratically and then hitting Mr. Guillory. The insurer

is required to take substantive and affirmative steps to accumulate the facts necessary

to evaluate a claim. See McClendon v. Economy Fire & Cas. Ins. Co., 98-1537

(La.App. 3 Cir. 4/7/99), 732 So.2d 727. Progressive was arbitrary and capricious in

not taking the depositions in a timely manner.

Mr. Guillory asserts that Progressive should have made a second tender

within thirty days of Dr. Anseman’s deposition on April 17, 2007 -- when medical

bills were approximately $20,000.00, when he was still in treatment, and when

surgery was being discussed. Mr. Guillory points out that Dr. Parmar’s opinion, after

the IME on July 20, 2007, cannot provide the basis for refusing to pay amounts due

within thirty days, or within sixty days, after Dr. Anseman’s testimony on April 17th.

We agree. In the month before Dr. Anseman’s deposition, Progressive increased its

reserves from $29,000.00 to $75,000.00. Progressive’s adjustor testified that reserve

figures represent a worse-case-scenario amount and not a case evaluation amount.

Mr. Guillory does not suggest that the tender should have been $75,000.00. Rather,

he suggests that a reasonable tender would have been one-half of $75,000.00, or

$37,500.00, minus the $10,020.00 that he had received from Progressive, and minus

the $10,000.00 received from State Farm, for a total tender of $17,480.00. At that

point, he had already exhausted the $20,020.00 received from State Farm and

Progressive, he was still in treatment, and his candidacy for surgery had been

discussed. Mr. Guillory’s request is a modest one; under the facts of this case, we

agree with Mr. Guillory’s calculation.

18

Mr. Guillory is seeking penalties, attorney fees, and costs for

Progressive’s arbitrary and capricious conduct under La.R.S. 22:658. He specifically

asserts that the 2006 version of La.R.S. 22:658 applies to this 2005 accident. Under

the 2006 version, the claimant is entitled to all damages incurred plus a penalty of

fifty percent (50%) damages on the amount found to be due or, in the case of a partial

tender, fifty percent (50%) of the difference between the amount tendered and the

amount that should have been tendered, plus attorney fees and costs. Prior to its 2006

revision, La.R.S. 22:658 provided for a lower penalty of twenty-five percent (25%)

of the amount found to be due, with no provision for attorney fees or costs.

In general, La.R.S. 22:658 provides that an insurer is subject to these

penalties when it fails to pay the amount of any claim due any insured within thirty

(30) days after receipt of satisfactory proofs of loss. Additionally, under La.R.S.

22:1220, an insured can recover two times the amount of the damages caused by the

breach if the insurer knowingly fails to pay a claim within sixty (60) days of receipt

of proof of loss when that failure is arbitrary, capricious, or without probable cause.

An insured cannot recover penalties under both statutes, but can recover penalties

under one statute and attorney fees and costs under the other, depending upon the

time line at issue. See Gibson v. Allstate Ins. Co., 02-892 (La.App. 3 Cir. 12/11/02),

832 So.2d 1209.

The Louisiana Supreme Court in Sher v. Lafayette Ins. Co., 07-2441 (La.

4/08/08), 988 So.2d 186, held that La.R.S. 22:658 is substantive law and cannot be

applied retroactively. The effective date of the amendment changing the penalty from

twenty-five percent (25%) to fifty percent (50%) and adding attorney fees and costs,

was August 15, 2006. Mr. Guillory filed suit in January 2006. His first transmission

of medical bills and Progressive’s first tender occurred in February 2006, almost six

19

months before the August effective date of the 2006 amendment. However, it is well

settled that the duty of an insurer to evaluate and re-evaluate claims is a continuing

duty as satisfactory proof of loss accrues and is provided to the insurer. In

determining whether any events occurring after August 15, 2006 will entitle Mr.

Guillory to attorney fees and costs under the amended statute, we turn to the Supreme

Court decision in Sher v. Lafayette Ins. Co.

In Sher, the original date of loss was August 29, 2005, when Hurricane

Katrina struck New Orleans and damaged the five-unit apartment complex owned and

occupied by Mr. Sher. He provided notice to his insurer, the claim was assigned, and

his property was inspected in 2005. Two checks totaling approximately $2,800.00

were issued, but Mr. Sher disputed the amount of damages, did not cash the checks,

and continued to send additional invoices and repair estimates to his insurer. He

ultimately filed suit on August 28, 2006, about two weeks after the amendment to

La.R.S. 22:658 became effective. In denying Mr. Sher recovery under the 2006

amendment, the Sher court articulated as follows:

Here, although an insurer has a continuing duty of
good faith and fair dealing which extends throughout the
litigation period, the claim first arose prior to the
amendment of R.S. 22:658. Because the duty is a
continuing one, had plaintiff not first made satisfactory
proof of loss prior to the amendment of R.S. 22:658, his
petition for damages served after the amendment became
effective could have served as satisfactory proof, thereby
triggering the time period set forth in the statute and could
have subjected Lafayette to the penalties contained in the
amendment because the claim would have first arisen after
the amendment. Further, again because the duty is a
continuing one, had plaintiff made satisfactory proof of
loss prior to the amendment and had Lafayette paid that
claim, and had plaintiff discovered new damage and made
satisfactory proof which Lafayette failed to pay within the
time period contained in the statute, but after the
amendment became effective, Lafayette could have been
subject to the penalties contained in the amendment
because the claim would have arisen after the effective

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date of the amendment. Neither of those situations is the
case here--the claim for the penalties contained within the
statute arose prior to the effective date of the amendment.
Plaintiff’s argument that Lafayette’s continuing breach of
the duty of good faith and fair dealing made it subject to
the increased penalties contained in the amended version
of R.S. 22:658 is without merit.

Sher v. Lafayette Ins. Co., 988 So.2d at 199 (emphasis added).

In the present case, Mr. Guillory’s diagnosis of a post accident bulging

disc at C6-7 occurred with the MRI report on February 22, 2005. That report, along

with other medical records supporting other injuries and aggravations, and bills

totaling approximately $12,000.00, was sent to Progressive on February 10, 2006.

On February 22, 2006, Progressive tendered $5,020.00. Progressive had already paid

$5,000.00 under the medical pay coverage, and Mr. Guillory had received $10,000.00

from State Farm. Accordingly, it appears that the claim for medical damages was

paid up, with some surplus, as of February 2006. As Mr. Guillory continued to

receive treatment, and continued to incur expenses, he asked for another tender in

June 2006, which was rejected.

Numerous diagnostic tests were done on November 3, 2006, indicating,

among other things, that the bulging disc at C6-7 was now a herniation, and that there

was further damage at C5-6. Dr. Anseman sent those records to progressive on

March 20, 2007, prior to his deposition on April 17, 2007. Therefore, we find that

under Sher, Mr. Guillory’s claim for these damages constitutes a claim that arose

after the August 15, 2006 amendment to La.R.S. 22:658. Progressive should have

made a tender at least within 30 days of Dr. Anseman’s deposition. Accordingly, an

award for attorney fees and costs is appropriate under the 2006 amended version of

La.R.S. 22:658.2

2
Mr. Guillory does not seek to recover double the damages caused by the breach of duty
under La.R.S. 22:1220, which he could substitute for the 50% penalty on damages due under La.R.S.

21

Denial of New Trial

Mr. Guillory asserts that the trial court erred in not granting him a new

trial. A new trial is mandatory when the “verdict or judgment appears clearly

contrary to the law and the evidence.” La.Code Civ.P. art. 1972. In considering such

a motion, the trial judge must determine whether the verdict was supported by any fair

interpretation of the evidence. Martin v. Heritage Manor South Nursing Home,

00-1023 (La. 4/3/01), 784 So.2d 627. The trial court may evaluate the evidence, draw

its own inferences and conclusions, and evaluate witness credibility to determine

whether the jury erred in giving too much credence to an unreliable witness. Unlike

the requirement in considering a motion for JNOV, the judge is not required to view

the evidence in the light most favorable to the non-movant. The appellate court

reviews the trial court’s decision on a motion for a new trial under an abuse of

discretion standard. Id.

Mr. Guillory argues the evidence, which we have thoroughly outlined

above, supports a new trial. Dr. Anseman and Dr. Feldman, both treating physicians,

related Mr. Guillory’s injuries to the January 2005 accident. Dr. Parmar admitted that

he had no reason to doubt Mr. Guillory’s truthfulness. He confirmed Mr. Guillory’s

injuries and helped to quantify potential future surgery with its attendant limitations.

The evidence supports the jury’s allocation of fault to Jennifer Lee alone, with no

allocation of fault to Mr. Guillory. However, the evidence does not support the jury’s

awards of damages.

At the hearing on the motion for a new trial, the trial judge indicated that,

if he were free to interpret the evidence and do what he thought was fair, he would

grant Mr. Guillory’s motion on every count. The judge stated that there were no

22:658. Because Mr. Guillory had health insurance and did not provide proof of damages caused
by the breach under La.R.S. 22:1220, we will calculate his penalty under La.R.S. 22:658 alone.

22

credibility issues with Mr. Guillory. He further stated that he was “troubled” by the

amount awarded for past medical expenses because he had not “found a way to make

that fit any particular factual conclusions that could have been reached by the jury.”

We believe that a fair interpretation of the evidence is exactly what is required under

Martin and that the jury failed in its responsibility and abused its discretion in its

awards.

We find that the jury’s awards of $40,000.00 for past medical expenses

and $10,000.00 for general damages are contrary to the evidence, and that the trial

court abused its discretion in failing to grant a new trial on these issues. However,

we also find that the record provides sufficient information for this court to determine

proper awards without remand. La.Code Civ.P. art. 2164. Accordingly, where there

were no arguments regarding the amounts of the individual medical provider’s bills

as presented, we will increase the award for past medical expenses from $40,000.00

to $98,272.32, the full amount of Mr. Guillory’s medical expenses including the

treatment and discectomies by Dr. Feldman.

Likewise, the $10,000.00 awarded for general damages is insufficient to

compensate Mr. Guillory for past and future pain and suffering. After finding that the

lower court abused its discretion in making an award, an appellate court may revise

the award to the extent of lowering it or raising it to the highest or lowest point which

is reasonably within the discretion afforded that court. Coco v. Winston Industries,

Inc., 341 So.2d 332 (La.1976).

Our research in this circuit and other circuits indicates that the lowest

amount of general damages reasonably within the jury’s discretion is $150,000.00.

See Littleton v. Wal-Mart Stores, Inc., 99-390 (La.App. 3 Cir. 12/1/99), 747 So.2d

701, writ denied, 00-804 (La. 5/5/00), 761 So.2d 546 ($150,000.00; ruptured disc at

C5-6, disc removal, and fusion resulting from plaintiff moving out of the way to avoid

23

a falling box); Thibodeaux v. Wal-Mart Stores, Inc., 98-556 (La.App. 1 Cir. 4/1/99),

729 So.2d 769, writ denied, 99-1244 (La. 6/18/99), 745 So.2d 28 ($150,000.00;

bicycle fell on plaintiff’s neck resulting in three level cervical fusion); Babineaux v.

Lykes Bros. Steamship Co., Inc., 608 So.2d 659 (La.App. 3 Cir. 1992), writ denied,

610 So.2d 819 (La.1993) ($175,000.00; surgery for two herniated discs); McLemore

v. Fox, 565 So.2d 1031 (La.App. 3 Cir.), writs denied, 569 So.2d 966 and 569 So.2d

968 (La.1990) ($300,000.00 for auto accident resulting in multiple cervical surgeries

and social security disability). Desselle v. LaFleur, 03-562 (La.App. 3 Cir. 2/4/04),

865 So.2d 954 (modest impact and property damage not determinative; $350,000.00

affirmed for objective findings of cervical injuries; recommended future anterior

cervical discectomy/fusion at the C5-6, C6-7 levels; over a year of pain since accident;

future pain from surgeries). Jenkins v. Sonat Offshore U.S.A. Inc., 96-2504 (La.App.

1 Cir. 12/29/97), 705 So.2d 1184 ($200,000.00 for physical pain and suffering, and

$50,000.00 for mental anguish and loss of enjoyment of life; cervical discectomy and

anterior cervical fusion after fall from stack of casing to rig deck).

Based upon our earlier analysis, we find that Mr. Guillory is entitled to

an award for loss of enjoyment of life. Our research indicates that the lowest award

for loss of enjoyment of life in this case is $24,000.00. See Basco v. Liberty Mut. Ins.

Co., 05-0143 (La.App. 3 Cir. 8/17/05), 909 So.2d 660 (awarded $44,000.00 for past

and future loss of enjoyment of life); Thibodeaux v. Bernard, 00-72 (La.App. 3 Cir.

11/2/00), 772 So.2d 897 (awarded $35,000.00); and Ryan v. Zurich American Ins. Co.

07-618 (La.App. 3 Cir. 10/31/07), 970 So.2d 42, reversed on lost earnings award

only, 07-2312 (La. 7/1/08), 988 So.2d 214 (awarded $24,000).

Based upon our analysis above of the conduct of Progressive in handling

the claims of Mr. Guillory, we find arbitrary and capricious conduct and award a

penalty of fifty percent (50%) of the difference between zero, as no tender was made,

24

and $17,480.00, which would have been a reasonable tender. Accordingly, we award

a penalty of $8,740.00, plus attorney fees and costs. Mr. Guillory has asked for a

remand on the issue of attorney fees and costs. He has not asked for the fees to

include the work done on appeal. In the interest of judicial economy, we make,

without remand, an award for $25,000.00 for attorney fees and costs for the litigation

of this matter in the court below.

IV.

CONCLUSION

Based upon the foregoing, we affirm the jury’s finding of fault. We

reverse the trial court’s denial of a new trial on all counts and find the record evidence

sufficient to render appropriate awards without remand. We amend the trial court’s

award of past medical expenses by increasing the award from $40,000.00 to

$98,272.32. We further amend the trial court’s award of general damages by

increasing it from $10,000.00 to $150,000.00 for past and future physical and mental

pain and suffering. We reverse the trial court’s denial of damages for loss of

enjoyment of life and render an award of $24,000.00 for that element of damages, past

and future. Finally, we reverse the trial court’s denial of damages for arbitrary and

capricious conduct of the defendant, Progressive Insurance, and award a penalty of

$8,740.00 plus attorney fees and costs in the amount of $25,000.00. Judicial interest

is due on all awards. Costs of this appeal are assessed to the defendant, Progressive

Insurance Company.

AMENDED IN PART AND, AS AMENDED, AFFIRMED;

REVERSED IN PART AND RENDERED.

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