Margie F. Martin v. Safeway Insurance co.of Louisiana

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-1419

ON REHEARING

MARGIE F. MARTIN

VERSUS

SAFEWAY INSURANCE CO. OF LOUISIANA, ET AL.

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APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE, NO. 68344B
HONORABLE THOMAS F. FUSELIER, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE
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OPINION ON REHEARING

Court composed of Sylvia R. Cooks, Oswald a Decuir, Elizabeth A. Pickett, Billy
Howard Ezell, and James T. Genovese, Judges.

AMENDED AND RENDERED.

Gary J. Ortego
Attorney at Law
P. O. Drawer 810
Ville Platte, LA 70586
Counsel for Plaintiff/Appellee:
Margie F. Martin

Gregory J. Laborde
Attorney at Law
P. O. Box 3667
Lafayette, LA 70502
Counsel for Defendant/Appellant:
Robert Gallow

Melissa F. Doise
Borne & Wilkes
200 W. Congress St, #1000
Lafayette, LA 70502-4305
Counsel for Defendant/Appellant:
Safeway Insurance Company of Louisiana

Pickett, J.

We granted rehearing in this case to consider an issue which was over-looked

in the original appeal. The excluded driver, Robert Gallow, appealed the quantum of

damages awarded. Upon considering that issue, we amend the damage award, and

render that award as amended.

DAMAGES

The trial court awarded the plaintiff general damages in the amount of

“$45,00.00, together with medical expenses [of] $1,851.71 and all costs . . . with a

credit of $10,000.00 as a result of previous payments.” The defendant, Robert

Gallow, appeals arguing that the general damages awarded by the trial court are so

excessive as to constitute an abuse of discretion. We agree.

In Brown v. State ex rel. LSU Medical Center Health Care Services Division,

08-273, pp. 7-8 (La.App. 3 Cir. 12/10/08), 998 So.2d 367, 373, writ denied, 09-72

(La. 3/6/09), 3 So.3d 491, we reviewed the law applicable to claims of

inadequate/excessive damages:

In Miller v. LAMMICO, 07-1352, p. 28 (La.1/16/08), 973 So.2d
693, 711, the supreme court noted:

An appellate court reviews a trial court’s general damage
award using the abuse of discretion standard. Coco v.
Winston Industries, Inc., 341 So.2d 332, 335 (La.1976).
The trier of fact is afforded much discretion in
independently assessing the facts and rendering an award
because it is in the best position to evaluate witness
credibility and see the evidence firsthand. Anderson v.
New Orleans Pub. Serv., Inc., 583 So.2d 829, 834
(La.1991). An appellate court may disturb a damages
award only after an articulated analysis of the facts
discloses an abuse of discretion. Theriot v. Allstate Ins.
Co., 625 So.2d 1337, 1340 (La.1993); Youn v. Maritime
Overseas Corp., 623 So.2d 1257, 1261 (La.1993) (the fact
finder's discretion in awarding general damages is vast and
should rarely be disturbed); Reck v. Stevens[,] 373 So.2d

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498, 501 (La.1979). To determine whether there has been
an abuse of discretion by the fact finder, the reviewing
court looks first to the facts and circumstances of the
particular case. Theriot, 625 So.2d at 1340; Reck, 373
So.2d at 501. Only if a review of the facts reveals an
abuse of discretion, is it appropriate for the appellate court
to resort to a review of prior similar awards. Reck, 373
So.2d at 501; Anderson, 583 So.2d at 834; Youn, 623
So.2d at 1261.

The record reveals that the accident at issue happened on July 26, 2006. The

plaintiff, a legal secretary, did not seek medical treatment for two days. On July 28,

2006, she consulted her family physician, Dr. Charles Fontenot. He diagnosed the

plaintiff’s injuries as an acute cervical strain superimposed over a prior herniated disc

(suffered in an accident 1992) and an acute lumbar strain. Dr. Fontenot prescribed

an analgesic, an anti-inflamatory, and a muscle relaxant. The plaintiff returned to Dr.

Fontenot and had her prescriptions refilled on August 4, 2006. She was referred for

physical therapy, took three treatments (August 14, 15, and 18, 2006), and

discontinued the therapy. On August 23, 2006, the plaintiff once again returned to

Dr. Fontenot, had her analgesic prescription refilled and a prescription for a different

muscle relaxant filled. Thereafter, she said she relied on over-the-counter

medications as she had done after the 1992 accident. She saw Dr. Fontenot only

twice more—on September 14 and October 16, 2006. He advised her to return as

needed. She has neither returned nor consulted another physician. The plaintiff has

missed no work, but her employer did provide her with a different chair. She does

complain that she has some residual problems with her neck “especially at work, you

know, typing , sitting in certain positions and stuff.” The plaintiff’s total medical

expenses, including doctor, MRI, prescriptions and physical therapy total $1,851.71.

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Considering the plaintiff’s diagnoses, the extent and duration of her medical

treatment, fact that she sustained no disability, and that she missed no work, we find

the general damage award “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.” Andrus v. State Farm Mutual Automobile Insurance Co., 95-0801,

p. 8 (La. 3/22/96), 670 So.2d 1206, 1210. It then falls upon us to review prior awards

in similar cases to determine the highest award within the trial court’s discretion.

In Simon v. Lacoste, 05-550, (La.App. 3Cir. 12/30/05), 918 So.2d 1102, the

plaintiff was in an accident on I-10 in July 2001. He complained of lower pelvic,

back, and neck pain, and left arm numbness. In October 2001 he was diagnosed with

thoracic outlet syndrome. The plaintiff recovered slowly amassing over $29,000.00

in medical expenses over the next three years. A jury award him $5,000.00 in general

damages which this court raised to $15,000.00.

The plaintiff in Henry v. Wal-Mart Stores, Inc., 99-1630 (La.App. 3 Cir.

3/1/00), 758 So.2d 327, writ denied, 00-929 (La.App. 3 Cir. 5/26/00), 762 So.2d

1107, slipped and fell while shopping in the defendant’s store. He sustained

shoulder, lower back, and leg pain as a result of the accident. The plaintiff saw an

orthopedic surgeon approximately five times over a period of ten months for his

complaints, and took a number of prescription medications for symptoms. The trial

court awarded the plaintiff $22,000.00 in general damages and $721.00 in past

medicals, which was affirmed by a panel of this court.

In Perry v. Anderson, 99-0230 (La.App. 4 Cir. 1/12/00), 751 So.2d 374, the

plaintiff was injured in an automobile accident. He suffered neck and pack pain

requiring eight months of treatment including muscle relaxant and anti-inflamatory

medications, the use of a TENS unit, and a back brace. He testified that his pain
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continued three months following his discharge. The appellate court awarded the

plaintiff $5,000.00 in general damages.

Thus, after review of the record in light of the standard set forth in Brown, 998

So.2d 367, and Miller, 973 So.2d 693, and the cases referenced above, we conclude

that $ 37,500.00 is the highest point that was within the trial court’s discretion.

Accordingly, we lower the award of general damages to $ 37,500.00.

Accordingly, for the reasons stated the general damage award of $45,000.00

in favor of the plaintiff, Margie Martin is reduced to $37,500.00.

AMENDED AND RENDERED.

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