Laura Cox Brown v. Shelter Insurance Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-0958

LAURA COX, ET UX.

VERSUS

SHELTER INSURANCE COMPANY, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20066398
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, and Jimmie C. Peters and
J. David Painter, Judges.

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

Lee A. Archer
Law Office of Lee A. Archer
1225 Rustic Lane
Lake Charles, LA 70605
(337) 474-4712
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Laura Cox Brown
C. Linzay Brown

Frank Tomeny, III
Tomeny & Fisher
6709 Perkins Road
Baton Rouge, LA 70808
(225) 767-8333
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Laura Cox Brown
C. Linzay Brown

Jason L. Melancon
Melancon, Rimes
8706 Jefferson Highway, Suite B
Baton Rouge, LA 70809
(225) 303-0455
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Laura Cox Brown
C. Linzay Brown

Thomas R. Hightower, Jr.
Patrick Wade Kee
Michael S. Harper
A Professional Law Corporation
1019 Lafayette Street
Post Office Drawer 51288
Lafayette, LA 70505
(337) 233-0555
COUNSEL FOR DEFENDANTS/APPELLANTS:
Shelter Mutual Insurance Company
Caroline E. Lambert

PETERS, J.

The plaintiffs in this personal injury action, Laura Cox Brown and her

husband, C. Linzay Brown, brought suit against Caroline E. Lambert and her liability

insurer, Shelter Insurance Company, to recover damages they sustained in a multi-

vehicle accident that occurred in Lafayette Parish on January 2, 2006. After a jury

trial in April of 2008, the final judgment set Mrs. Brown’s general damages at

$25,000.00 and the couple’s past and future medical expenses at $86,000.00 but

reduced the awards by fifty percent. The Browns now appeal the judgment, asserting

four assignments of error. For the following reasons, we reverse the trial court

judgment in part and render judgment in favor of the Browns, finding no fault on the

part of Mrs. Brown in causing the accident, increasing the quantum award, and taxing

all court costs to the defendants.

DISCUSSION OF THE RECORD

The accident in dispute occurred on Kaliste Saloom Road in Lafayette Parish

and involved four vehicles driving in the same direction. Franklin D. Robinson

operated the lead vehicle, Peggy LeBlanc operated the next, Mrs. Brown operated the

next, and Ms. Lambert operated the last. The accident began to develop when Mr.

Robinson stopped his vehicle to avoid an unrelated accident that had taken place in

front of him as he approached a red light. Ms. LeBlanc timely responded by coming

to a full stop behind Mr. Robinson. As Mrs. Brown attempted to stop, her vehicle

was struck from the rear by Ms. Lambert’s. While there exists a question concerning

whether Mrs. Brown’s vehicle struck Ms. LeBlanc’s before being struck by the

Lambert vehicle, it is unquestioned that Ms. Lambert’s vehicle did strike Mrs.

Brown’s, driving it into the rear of Ms. LeBlanc’s vehicle, which was in turn driven

into the rear of Mr. Robinson’s vehicle.

With regard to the impact sequence, Mrs. Brown testified that she had come to

a complete stop before being struck by the Lambert vehicle and that her first impact

with Ms. LeBlanc occurred when her vehicle was driven into the rear of Ms.

LeBlanc’s vehicle by the impact from the Lambert vehicle. Her version of the

accident was supported by the testimony of Officer James Soileau of the Lafayette

Police Department, who was the investigating officer at the scene of the accident.

Officer Soileau testified that both Ms. LeBlanc and Mrs. Brown told him that Mrs.

Brown had come to a complete stop and that Mrs. Brown’s vehicle impacted Ms.

LeBlanc’s only after Ms. Lambert’s impact with Mrs. Brown’s vehicle.

Ms. LeBlanc disputed the single impact scenario. She gave Officer Soileau a

written statement shortly after the accident in which she asserted that Mrs. Brown’s

vehicle struck hers before Ms. Lambert impacted Mrs. Brown’s vehicle, and that after

that impact, she was struck again by Mrs. Brown’s vehicle. She repeated the two-

impact assertion in her trial testimony.

Ms. Lambert’s testimony was conflicting on this point. She first testified that

she observed Mrs. Brown’s vehicle impact with Ms. LeBlanc’s before she struck Mrs.

Brown. However, despite making this assertion, she admitted that she could not see

in front of Mrs. Brown’s vehicle. In describing how she struck Mrs. Brown, Ms.

Lambert testified that there was nothing that prevented her from seeing Mrs. Brown’s

vehicle. She explained that she first slowed down because she was approaching a red

light; that she saw Mrs. Brown’s brake lights go on as Mrs. Brown also slowed for

the red light; that the light turned green, Mrs. Brown’s brake lights went off, and both

she and Mrs. Brown began to accelerate; that she then saw Mrs. Brown’s brake lights

go on again; and that two seconds later she hit the back of Mrs. Brown’s vehicle. Ms.

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Lambert also testified that while the three women were waiting for the police officer

to arrive at the scene of the accident, Mrs. Brown told her that she “had contacted Ms.

LeBlanc’s car, and then she felt me [Ms. Lambert] contact her car.” Mrs. Brown

denied making such a statement.

Richard Fox, an accident reconstruction expert with Acadiana Research and

Reconstruction in Lafayette, Louisiana, testified on behalf of the Browns and

concluded that there was no evidence of two impacts on the rear bumper of Ms.

LeBlanc’s car or on the front bumper of Mrs. Brown’s car. He reached this

conclusion based on his examination of the photographs taken of the various vehicles

involved in the accident as well as the damage estimates for each vehicle. Of

particular importance to Mr. Fox was the damage to the rear quarter panel of Mrs.

Brown’s vehicle on the driver’s side and the fact that the damage to the immediate

rear of the vehicle was on the driver’s side. He explained that this damage

represented an “offset collision” wherein Ms. Lambert veered slightly to the left when

she realized a collision was about to occur. The damage to the side of Mrs. Brown’s

vehicle was caused, not from direct impact, but from the crinkling effect of the offset

impact in the rear. He noted that the LeBlanc vehicle had no similar damage.

Additionally, he testified that the other damage to Mrs. Brown’s vehicle was

consistent with this type of impact.1 Observing that the damage to Ms. LeBlanc’s

vehicle resembled more of a “flat hit,” Mr. Fox concluded that the damage reflected

was not caused in this accident. Mr. Fox also recognized that the damage to the front

of Ms. Lambert’s vehicle was significantly more than that to either of the other two

1
In addition to the damage to the bumper and side panel, the absorber and metal plate behind
the absorber, the frame horn on the driver’s side, and the tailpipe and muffler on Mrs. Brown’s
vehicle were damaged to the extent that they had to be replaced.

3

vehicles. He estimated that Ms. LeBlanc’s vehicle impacted Mr. Robinson’s vehicle

at less than five miles per hour, given the lack of damage to the forward vehicle and

the fact that the air bag did not deploy; and that Ms. Lambert’s vehicle was traveling

at approximately seventeen miles per hour, given the fact that it pushed the Brown

vehicle into the LeBlanc vehicle with sufficient force to cause significant damage.

He saw no evidence of two impacts with the LeBlanc vehicle.

On the other hand, Stephen A. Killingsworth, also an accident reconstruction

expert from Lafayette, Louisiana, testified on behalf of the defendants and said that

in the “most probable of the scenarios that I’ve looked at there was a dual impact to

the LeBlanc vehicle.” Mr. Killingsworth had available all the information upon

which Mr. Fox relied, and additionally, researched the design systems of each of the

vehicles involved in the accident. He agreed with Mr. Fox’s conclusion that the

center of the Lambert vehicle impacted the driver’s side of the Brown vehicle and that

this caused the buckling of the left rear quarter panel. He also acknowledged that the

impact caused sufficient damage to require the various components of the Brown

vehicle to be replaced. When he turned to the analysis of the rear of the LeBlanc

vehicle, Mr. Killingsworth noted little damage to that vehicle. He concluded that this

lack of damage could be attributed to the fact that, unlike the Brown and Lambert

vehicles, the bumpers of the Brown and LeBlanc vehicles were on the same level.

However, noting that the right front of the Brown vehicle had some damage and that

its hood was ajar, he concluded that a prior impact had occurred. Mr. Killingsworth

claimed in his testimony that while he was aware that the right side of Mrs. Brown’s

vehicle had some damage, he initially could not determine whether it was old or new

damage until he listened to the testimony at trial. He reached his two-impact

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conclusion while at lunch before being called to testify. This is despite the fact that

he had been long identified as the defendants’ expert on the nature of the collisions.

On cross-examination, Mr. Killingsworth testified that in one of the scenarios

he considered before trial, he concluded that the Brown vehicle struck the LeBlanc

vehicle at the exact moment the Lambert vehicle struck hers. Additionally, he

acknowledged that his conclusions concerning the impact were based on a number

of variables and/or unknowns, including the speed of the vehicles and the point at

which either or both drivers engaged their brakes. He also acknowledged that at the

time his deposition was taken, he did not believe the accident involved two impacts

between the LeBlanc and Brown vehicles, and he only changed his mind based on the

testimony he heard at trial.

Regardless of the mechanics of the accident itself, Mrs. Brown did sustain

serious personal injuries, although the full extent of the injuries and the need for

future medical treatment were issues at trial. At the time of the accident, Mrs. Brown

was twenty-four years of age, with an eighteen-month-old daughter, and had no

significant previous medical history. Two days after the accident, she presented

herself to Dr. Richard P. Sylvester, D.C., a Lafayette, Louisiana chiropractor, for

evaluation and treatment of her mid-back complaints of pain. Dr. Sylvester saw Mrs.

Brown seven times between January 4, 2006 and March 8, 2006, treating her

condition with adjustments, heat, massage, and electrical therapy. On January 9,

2006, Mrs. Brown underwent an MRI pursuant to Dr. Sylvester’s referral, which

showed that at the T11-T12 level there was disc desiccation with a mild disc space

narrowing and a mild diffuse disc bulge.

5

While seeking treatment from Dr. Sylvester, Mrs. Brown also began seeing Dr.

Robert D. Franklin, M.D., a Lafayette, Louisiana physiatrist. Dr. Franklin first saw

Mrs. Brown on February 23, 2006. According to Dr. Franklin, she presented herself

to him with complaints of cervical neck pain and stiffness throughout her back, with

pain in both her lower back muscles and over the lower lumbar region. His initial

examination produced objective evidence of soft tissue injury, and he prescribed anti-

inflammatory medication to treat her complaints.

At an April 11, 2006 visit, Dr. Franklin observed that Mrs. Brown was guarded

in her movements and was walking with a limp. He concluded that the manner in

which Mrs. Brown was moving demonstrated her attempt to avoid pain in her

activities and that the limp was caused by a spasm in the right lumbar paraspinals.

Dr. Franklin prescribed pain medication and ordered a thoracic and lumbar MRI scan.

That April 12, 2006 MRI revealed that at the T11-T12 disc level, there was disc

desiccation, mild disc space narrowing, and a small disc bulge with an annular tear

in the ligament. Dr. Franklin then referred Mrs. Brown to Dr. Patrick Juneau, III, a

Lafayette, Louisiana neurosurgeon, for an evaluation.

Dr. Juneau first saw Mrs. Brown on March 3, 2006. Based on his examination

of the patient as well as the MRI test results, Dr. Juneau confirmed Dr. Franklin’s

opinion with regard to the disc protrusion between the T11-T12 disc level and

attributed that injury to the accident of January 2, 2006. Dr. Juneau found this

condition consistent with her complaints of pain in the lower back, explaining that

such an injury can cause pain in the lower part of the back, between the shoulder

blades, and even around the front of the body. At that time, he recommended that the

injury be treated conservatively and that she be followed by his office.

6

On July 11, 2006, Mrs. Brown returned to Dr. Franklin, who testified that on

that day his patient continued to complain of mid and low back pain, suffered from

a decreased range of motion on forward flexion, and had a guarded motion when

extending. He continued her on anti-inflammatory and pain medication and

suggested physical therapy. Mrs. Brown last came to his office on August 9, 2006,

when his physician’s assistant noted in the records that she was responding to

physical therapy.

Dr. Tracy Hebert, Ph.D., an expert in the field of physical therapy, testified that

Mrs. Brown had participated in eighteen sessions of physical therapy at the Boulet

Rehabilitation facility in Lafayette, Louisiana between July 13, 2006 and September

7, 2006. In those sessions, she received deep tissue massage, manual treatment, heat

treatments, electrical stimulation, therapeutic exercise, and instruction in home

exercises. According to Dr. Hebert, Mrs. Brown reported that she was undergoing

daily problems, including extra pain when lifting heavy weights, difficulty sitting in

a chair for long periods, difficulty traveling, and extra pain when standing. In the last

three visits for physical therapy, Mrs. Brown did not report pain, and when she was

discharged on September 7, she had significantly less pain although she reported

occasional increased pain when picking up her daughter, who was then two years old

and weighed twenty-five pounds. Upon discharge she was given a home exercise

program. Dr. Hebert testified that Mrs. Brown’s pain complaints were consistent with

disc pathology at T11-T12.

Mrs. Brown testified that even after physical therapy, she continued to have

problems sitting, problems picking up her daughter, and back pain. At the time of

7

trial, she was continuing with the exercise program recommended by Dr. Hebert and

was working out three times per week.

Mrs. Brown began seeing Dr. David L. Weir, M.D., a neurologist at the

Southeast Neuroscience Center in Lafayette, Louisiana, on October 2, 2006. His

medical records were introduced into evidence. Following the first examination, Dr.

Weir’s records reflect that Mrs. Brown suffered from pain in the thoracic spine,

thoracic paraspinal muscle spasms, decreased sensation in the right distal leg and

foot, and headaches due to her thoracic and cervical strain. His plan for her treatment

included muscle relaxers, anti-inflammatories, and trigger point and botox injections

to relieve the muscle spasms. He also ordered an MRI of the thoracic area. That

October 2, 2006 MRI confirmed the findings of the MRI performed on April 12,

2006, again revealing a disc bulge with an annular fissure and disc degeneration at

T11-T12. At her next visit with Dr. Weir, on October 19, 2006, she continued to

complain of neck and thoracic pain, with fairly severe headaches about once a month,

muscle spasms in the cervical paraspinal and trapezius muscles, and spasms in the

thoracic paraspinal muscles.

Based on these complaints and his findings, Dr. Weir continued the treatment

plan already in place of muscle relaxers, anti-inflammatories, botox injections, and

trigger point injections and added Imitrex and Ultracet for pain. At the follow-up

visit on January 10, 2007, Dr. Weir’s examination revealed that Mrs. Brown was

tender and had spasms in the right cervical paraspinal muscles. Dr. Weir noted that

she was unable to have the scheduled botox injections because she was then

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pregnant.2 He did inject a combination of Kenalog and Marcaine into the areas that

were in spasm.

At the May 15, 2007 follow-up visit, Dr. Weir noted that Mrs. Brown’s neck

was supple, with a good range of motion, but that she was having tingling down her

right leg. On June 27, 2007, when Dr. Weir again sent Mrs. Brown for an MRI, her

thoracic spine imaging could not be completed because she was in her third trimester

of pregnancy. At the September 4, 2007 examination, Dr. Weir’s records indicate that

Mrs. Brown had spasms of the cervical and thoracic paraspinal muscles. In an effort

to relieve the spasms, Dr. Weir told her to continue RS Medical Stimulation and

referred her to Dr. Denise Florane, a local chiropractor. After examining Mrs. Brown

on November 12, 2007, Dr. Weir’s records reflect that Mrs. Brown developed a

headache, which seemed to follow increasing neck pain, and that an examination

revealed that she continued to have “spasms of the cervical paraspinal muscles,

specifically the upper, mid, and especially the lower thoracic muscles.” At that time,

Dr. Weir recommended an anti-inflammatory, a muscle relaxant, and massage

therapy. He also recommended botox injections of the cervical paraspinal muscles

once she stopped breast-feeding.

On Dr. Weir’s recommendation, Mrs. Brown began treatment with Dr. Denise

Florane, D.C., a chiropractor at the Mosaic Chiropractic Clinic in Lafayette,

Louisiana. Between September 24, 2007, and March 24, 2008, Dr. Florane treated

Mrs. Brown nineteen times.

Dr. Juneau’s office records from December 5, 2007 reflect that he had reviewed

Mrs. Brown’s MRIs of April 12, 2006; October 2, 2006; January 9, 2007; and June

2
Mrs. Brown gave birth to her second child, a daughter, in August of 2007.

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27, 2007. Based on his review of these test results, he concluded that Mrs. Brown

suffered from a disc protrusion at T11-T12. He also concluded that because Mrs.

Brown was having significant and persistent pain, and her symptoms were not getting

better, she was a candidate for a T11-T12 disc excision with instrumented fusion,

which would cost approximately $100,000.00. Dr. Juneau’s records further reflect

his conclusion that if Mrs. Brown were to undergo the operation, she would suffer a

degree of permanent disability that would preclude her from being able to perform the

lifting activities required of a nurse. At the same time, the records reveal the doctor’s

conclusion that if Mrs. Brown did not have the surgery, and if she continued to have

persistent and rather severe thoracolumbar pain, she would still be unable to work as

a nurse.

In his trial testimony, Dr. Juneau explained that Mrs. Brown’s succession of

MRIs consistently revealed the presence of a protruding disc at T11-T12. According

to the doctor, such a protruding disc could cause pain in the lower part of the back,

between the shoulder blades, and could wrap around the stomach. Based on the lack

of history of back problems, he was of the opinion that the herniation at T11-T12 is

caused by the January 2, 2006 car accident. Dr. Juneau further opined that, given the

fact that Mrs. Brown continued in pain years post-accident, the injury was not going

to heal on its own, and her only options were to live with the pain for the rest of her

life or consider surgical intervention. Dr. Juneau also testified that he had spoken

with Mrs. Brown by telephone on April 20, 2008, and she informed him that the pain

had now extended to the front of her body. He indicated that because the pain was

wrapping around to the front, it made the recommendation of surgery more valid.

Although his December 5, 2007 office notes state that the cost of such an operation

10

would be in the range of $100,000.00, at trial Dr. Juneau suggested that the estimated

cost of the surgery would be $80,000.00.

Mrs. Brown testified at trial that she was still having pain, primarily when

required to sit for any period of time. She stated that her entire back constantly felt

like it had a “charley horse” and she continued to suffer from severe headaches.

According to Mrs. Brown, she definitely intended to have the surgery Dr. Juneau

recommended, but she had not had the surgery as of the time of trial.

Mr. Brown testified in support of both his wife’s claim and his loss of

consortium claim. According to Mr. Brown, he is a self-employed general contractor

who works forty to fifty hours per week outside the home, but when Mrs. Brown has

doctor’s appointments, he has to leave his work to take care of their two daughters.

He testified that he normally arrives home each evening around 6:00 p.m. and helps

with the cooking and care of the two children because Mrs. Brown is in constant

pain. He testified that Mrs. Brown is often “short” with him and the children since

the accident and that family road trips are much harder on her than before. For that

reason, they seldom see his family members who are scattered from Alabama to

Louisiana.

The defendants’ rebuttal evidence consisted of surveillance videos depicting

Mrs. Brown in her daily activities that were taken by a private investigator and the

testimony of Brenda McCall, a payroll bookkeeper at Lafayette Total Eyecare, in

Lafayette, Louisiana. The surveillance videos, which were taken on October 30 and

31, 2007; December 19, 2007; and February 19, 20, and 21, 2008, depict Mrs. Brown

entering and exiting various buildings, carrying a baby carrier, placing the baby

carrier in the car and later removing it, going shopping for groceries and at

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department stores, placing her groceries and other purchases in her vehicle, carrying

a large bag over her shoulder, and going to the gym for times that ranged from twenty

minutes to an hour and twenty minutes. In the October 31, 2007 video, Mrs. Brown

appeared to have difficulty lifting the baby carrier from her grocery cart, and three

times placed her hand in the small of her back. Ms. McCall testified that Mrs. Brown

worked at Lafayette Total Eyecare from April 17, 2006, until June 1, 2006, and that

during that time, she never heard Mrs. Brown complain of a physical injury.

Trial began on April 22, 2008, and the jury responded to the interrogatories

propounded to it on April 24, 2008, in the following manner:

1. Do you find that Caroline Lambert was negligent or at fault in the
incident of January 2, 2006?

Yes / No

If your answer to Question Number 1 was “yes,” please proceed
to Question Number 2. If your answer to Question Number 1 was “no,”
please have the jury foreperson sign where indicated and return to the
judge.

2. Was the negligence or fault of Laura Cox Brown in causing a
sudden emergency the cause of the incident of January 2, 2006?

Yes No /

If your answer to Question Number 2 was “yes,” please have the
jury foreperson sign where indicated and return to the judge. If no,
please proceed to Question Number 3.

3. Do you find that Laura Cox Brown suffered injuries as a result of
the fault and/or negligence of Caroline Lambert?

Yes / No

If your answer to Question Number 3 was “no,” please have the
jury foreperson sign his or her name in the appropriate place at the end
of this form, and return it to the Court. If your answer to question
Number 3 was “yes” please proceed to question number 4.

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4. Do you find that Laura Cox Brown’s injuries were the sole result
of her actions in rear-ending the Peggy LeBlanc vehicle?

Yes No /

If you answer “yes,” to question number 4, please have the jury
foreperson sign where indicated and return it to the Judge. If your
answer to question 4 is “No,” please proceed to question number 5.

5. Please state the percentage of negligence, if any, which you
attribute to the defendant, Caroline Lambert, and to the plaintiff,
Laura Cox Brown. (Please note the total percentages assigned
must equal to 100%).

Laura Cox Brown 50%
Caroline Lambert 50%

6. What amount, in dollars and cents, do you award to Laura Cox
Brown?

Physical Pain (past and future) $ 25,000.00
Mental Anguish (past and future) $ .00
Disability $ .00
Past Medical Expenses $ 26,000.00
Future Medical Expenses $ 60,000.00
Loss of Enjoyment of Life $ .00

7. What amount, in dollars and cents, do you award to Mr. C. Linzay
Brown?

Loss of consortium $ .00

The trial court incorporated these findings in its judgment and taxed the costs of the

litigation to the Browns.

After the trial court signed the judgment on September 8, 2008, the Browns

perfected this appeal. In their appeal, the Browns assert that the assessment of fifty

percent fault on the part of Mrs. Brown was error, that the damage awards are

inadequate, and that the trial court erred in assessing all costs of the litigation to them.

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OPINION

We evaluate negligence actions under a duty/risk analysis. To be successful

a plaintiff must establish by a preponderance of the evidence the five prongs of the

duty/risk analysis: (1) the defendant owed a duty of care to the plaintiff, (2) the

defendant breached that duty, (3) the breach of that duty by the defendant was a

cause-in-fact of the plaintiff’s injuries, (4) the breach was the legal cause of the harm

suffered by the plaintiff, and (5) the plaintiff suffered damages. Hanks v. Entergy

Corp., 06-477 (La. 12/18/06), 944 So.2d 564. If the plaintiff fails to establish any of

these elements by a preponderance of evidence, he or she may not recover.

Assessment of Fault

The duty element involved in this litigation is set forth in La.R.S. 32:81(A),

which provides that “[t]he driver of a motor vehicle shall not follow another vehicle

more closely than is reasonable and prudent, having due regard for the speed of such

vehicle and the traffic upon and the condition of the highway.” If a following

motorist strikes the forward vehicle from the rear, he or she is presumed to have

breached the duty imposed by La.R.S. 32:81(A). Mart v. Hill, 505 So.2d 1120

(La.1987).

A following motorist may, however, rebut the presumption by
demonstrating that he or she had his car under control, closely observed
the preceding vehicle, and followed at a safe distance under the
circumstances, or by proving that the driver of the lead car negligently
created a hazard which the following motorist could not reasonably
avoid. McCullin v. U.S. Agencies Cas. Ins. Co., 34,661 (La.App. 2 Cir.
5/9/01), 786 So.2d 269. The following motorist bears the burden of
showing he was not negligent. Wheelis v. CGU Ins., 35,230 (La.App.
2 Cir. 12/7/01), 803 So.2d 365.

Menard v. Federated Mut. Ins. Co., 05-85, pp. 3-4, (La.App. 3 Cir. 6/22/05), 906
So.2d 746, 750, writ denied, 05-1925 (La. 3/10/06), 925 So.2d 506.

14

In answering the first and second interrogatories as it did, the jury found that

the plaintiffs established the first four elements of the duty/risk analysis by a

preponderance of the evidence. Additionally, in its answer to the third interrogatory,

the jury found that the plaintiffs had established the fifth element of the duty/risk

analysis by a preponderance of the evidence. That is to say, the jury concluded that

Ms. Lambert was negligent in causing the accident sued upon and the resulting

injuries to Mr. and Mrs. Brown; that Mrs. Brown did not cause a sudden emergency

that contributed to the cause of the accident, i.e., that she did not negligently create

a hazard that Ms. Lambert could not reasonably avoid; and that the Browns suffered

injuries as a result of Ms. Lambert’s negligence or fault. Although not specifically

stating so, the jury implicitly rejected the “two-impact” theory asserted by the

defendants. The instruction following the third interrogatory should have directed the

jury to proceed immediately to Interrogatory Number Six and award damages. That

is to say, the jury’s inquiry should have ended at this point. Instead, the instruction

directed the jury to answer the next interrogatory.

The apparent premise of the fourth interrogatory, in referring to Mrs. Brown’s

“actions in rear-ending the Peggy LeBlanc vehicle” is that Ms. Brown created a

hazard that Ms. Lambert could not avoid by striking Ms. LeBlanc’s vehicle before

Ms. Lambert impacted her vehicle—a factual scenario clearly rejected by the jury in

its answer to the second interrogatory. While the fourth interrogatory can be

interpreted in numerous ways, the interpretation consistent with the jury’s answers

to the first three interrogatories is that, in answering this interrogatory in the negative,

the jury simply reaffirmed what it had already stated—that the sole cause of this

accident and the resulting injuries was the negligence or fault of Ms. Lambert. Given

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the answers to the first three interrogatories, the fourth interrogatory was basically

redundant. Still, the instruction that followed this interrogatory created a critical error

in that it too should have directed the jury to proceed immediately to Interrogatory

Number Six and award damages. Instead, it directed the jury to answer the next

interrogatory, an error that, when followed by the jury, caused the jury’s verdict to

become inherently incorrect. Despite having found that the sole cause of the accident

was the negligence or fault of Ms. Lambert, the jury assigned fifty percent of the fault

in causing the accident to Mrs. Brown.3

Normally, when we find that a jury interrogatory is tainted with legal error,

we set aside the jury finding associated with that legal error and perform a de novo

review of the record as it relates to that error. State ex rel. Dept. of Transp. and Dev.

v. Wade, 07-1385 (La.App. 3 Cir. 5/28/08), 984 So.2d 918, writ denied, 08-1896 (La.

12/12/08), 997 So.2d 561. Here, based on the responses to the first four

interrogatories, the trial court erred in instructing the jury to answer Interrogatory

Number Five. In performing a de novo review with regard to the issue of comparative

fault, we conclude that the answers to the first four interrogatories are supported by

the record and that the jury erred in finding Mrs. Brown fifty percent negligent in

causing the accident sued upon. That being the case, we set aside the finding of

negligence on the part of Mrs. Brown and assign one hundred percent of the fault in

causing the accident to Ms. Lambert.

3
It is significant to note that the interrogatory is couched in terms of “negligence” in causing
the accident and not in terms of causation of injuries. Had the interrogatory referred to causation of
injuries, the jury’s finding might have given credence to the argument that there was a first impact
and that some of Mrs. Brown’s injuries might have been caused by the first impact instead of the
second.

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General Damages

The Browns contend that the jury erred in awarding them only $25,000.00 in

general damages. They argue that the $25,000.00 award for Mrs. Brown’s past and

future physical pain and suffering should be increased and that this court should make

awards for Mrs. Brown’s past and future mental anguish, disability, and loss of

enjoyment of life and for the loss of consortium suffered by Mr. Brown.

In considering whether the award of general damages is excessive, we are

guided by the decision in Youn v. Maritime Overseas Corp., 623 So.2d 1257,

(La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059 (1994), wherein the supreme

court noted 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.” Under

Youn, “[t]he 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.” Id. at 1260. Only after the initial

inquiry is answered in the affirmative should the appellate court increase or reduce

the award. Id.

Mrs. Brown was only twenty-four years old at the time of the accident, and her

uncontroverted testimony was that she had never had any back pain before the

accident. Now she has a protruding disc between T11-T12, which Dr. Juneau

testified will not heal on its own. At trial, which occurred two years after the

accident, she had ongoing, daily problems resulting from the accident: problems

picking up her children or lifting any heavy weight, pain when sitting or standing for

long periods of time, and severe headaches. Mrs. Brown testified that some days are

better than others, but that her pain averages a five out of ten on a daily basis. She

17

has sought every type of medical care available to her and diligently followed the

regimen of physical therapy that was recommended. The record before us, including

the video surveillance, shows that Mrs. Brown is in pain but makes the best of her

situation, continuing with her daily activities despite the pain and working hard to

improve her injuries. With no expectation that the protruding disc will improve, Mrs.

Brown is facing a serious surgery or daily suffering for the rest of her life. Given the

record before us, we conclude that the award of $25,000.00 in general damages is

abusively low.

As the jury’s answer to the sixth interrogatory indicates, the award of

$25,000.00 was only for past and future physical pain. The jury awarded nothing for

her corresponding mental anguish, disability, or loss of enjoyment of life. The

supreme court has held that when a jury’s award for damages is excessively low, even

when the jury awards no damages for a particular item, this court can only increase

the award “to the lowest amount which is reasonably within the court’s discretion.”

Ryan v. Zurich Am. Ins. Co., 07-2312, p. 7 (La. 7/1/08), 988 So.2d 214, 219.

Accordingly, we will raise Mrs. Brown’s general damage award4 to the lowest point

that was reasonably within the discretion of the trier of fact. Youn, 623 So.2d 1257.

In adjusting the award, we will refer to prior awards in similar cases to determine the

lowest point of an award within that discretion. Coco v. Winston Indus., Inc., 341

So.2d 332 (La.1976). Considering the effects of the particular injury on Mrs. Brown,

and in particular her youth and the consequent lengthy extent of her probable

suffering, we award her general damages of $250,000.00. See Clark v. Matthews, 04-

848 (La.App. 5 Cir. 1/11/05), 891 So.2d 799, writ denied, 05-473 (La. 4/22/05), 899

4
Rather than award separate amounts for each individual category, we will award one amount
for general damages.

18

So.2d 577; Franz v. First Bank Sys., Inc., 03-448 (La.App. 4 Cir. 2/11/04), 868 So.2d

155, writs denied, 04-648, 04-649 (La. 4/30/04), 872 So.2d 493, 496; Desselle v.

LaFleur, 03-562 (La.App. 3 Cir. 2/4/04), 865 So.2d 954; Sepulvado v. Turner, 37,912

(La.App. 2 Cir. 12/10/03), 862 So.2d 457, writ denied, 04-89 (La. 3/19/04), 869

So.2d 855; Scott v. Roberts, 03-435 (La.App. 3 Cir. 10/1/03), 856 So.2d 1258, writ

denied, 03-3028 (La. 1/30/04), 865 So.2d 80; Day v. Ouachita Parish Sch. Bd.,

35,831 (La.App. 2 Cir. 8/8/02), 823 So.2d 1039, writ denied, 02-2532 (La. 12/19/02),

833 So.2d 343; Kerrigan v. Imperial Fire and Cas. Ins. Co., 99-603, 99-604 (La.App.

3 Cir. 11/3/99), 748 So.2d 67, writ denied, 99-3410 (La. 2/4/00), 754 So.2d 236.

The jury made no award to Mr. Brown for his loss of consortium. The

compensable elements of damage in a claim for loss of consortium of a spouse

include loss of love and affection, loss of companionship, loss of material services,

loss of support, impairment of sexual relations, loss of aid and assistance, and loss of

felicity. Ferrell v. Fireman’s Fund Ins. Co., 96-3028 (La. 7/1/97), 696 So.2d 569.

Mr. Brown testified at trial concerning his wife’s shortness with him, stating that

before the accident and her resulting back pain, she had not behaved that way toward

him. Further, Mr. Brown is required to take on more of the household and childcare

responsibilities, to the detriment of his career and responsibilities as a self-employed

contractor, because Mrs. Brown is exhausted from dealing with her pain by the end

of the day. Her inability to sit for long periods of time means that they are not able

to make road trips, and, therefore, he has not seen his immediate family, who live in

other areas of the state and in nearby states, as often as he did before the accident.

We find an award of $25,000.00 to be the lowest amount that was reasonably within

19

the discretion of the trier of fact under the circumstances of this case. See Scott, 856

So.2d 1258.

Special Damages

The Browns also contend that the jury’s award of $60,000.00 in future medical

expenses is unreasonably low. We agree.

The plaintiff has the burden of proving, by a preponderance of the evidence,

entitlement to special damages such as future medical expenses. Thibeaux v. Trotter,

04-482 (La.App. 3 Cir. 9/29/04), 883 So.2d 1128, writ denied, 04-2692 (La. 2/18/05),

896 So.2d 31. In meeting her burden of proof on this issue, Mrs. Brown must show

that more probably than not, these expenses will be incurred and she must present

medical testimony that they are indicated and the probable cost of these expenses.

Veazey v. State Farm Mut. Auto Ins., 587 So.2d 5 (La.App. 3 Cir. 1991). The jury’s

award of such special damages is reviewed under the manifest error standard of

review. Thibeaux, 896 So.2d 31.

Here the jury awarded Mrs. Brown $26,000.00 in past medical expenses,

almost one hundred percent of the $26,058.45 in medical expenses that she had

incurred as of the date of trial. Thus, the jury obviously believed that Mrs. Brown’s

injuries required medical intervention and that the treatment she sought was

appropriate. However, the award of $60,000.00 in future medical expenses bears no

relation to the testimony or documentary evidence concerning her future medical

expenses.

With regard to future medical treatment, Mrs. Brown testified at trial that she

had a scheduled appointment with Dr. Wier in June of 2008. Dr. Wier’s records

reflect that his charges for medical visits range from $126.00 to $198.00. The only

20

other evidence concerning Mrs. Brown’s future medical expenses was presented by

Dr. Juneau. According to Dr. Juneau, Mrs. Brown’s condition had reached the point

that her choices were to live with the pain and disability for the rest of her life or to

submit herself to surgery to alleviate the pain. The first choice would obviously

require continued medical treatment which would be similar in cost to that which she

had been receiving, while the second would range between $80,000.00 and

$100,000.00. In either situation, according to Dr. Juneau, Mrs. Brown’s physical

activities would be limited in that she would suffer a permanent disability. Although

the defendants suggested that Dr. Juneau’s recommendation of surgery was primarily

based on a mistaken belief that Mrs. Brown had told him, in a phone conversation in

April of 2008, that the pain was wrapping around to the front of her body, Dr.

Juneau’s office note of December 5, 2007, reflects that he recommended the surgery

on that date, long before his April 2008 conversation with Mrs. Brown.

Mrs. Brown testified that she would have the surgery in order to rid herself of

the pain she has had since the accident. There was no evidence presented to

contradict or rebut her testimony. Furthermore, it is understandable that she had not

yet submitted herself to surgery by the date of trial, given the fact that she gave birth

to her second child in August of 2007, and Dr. Juneau first recommended the surgery

in December of 2007.

We find the jury’s verdict on this issue to be inconsistent with the evidence

presented at trial. Specifically, the award of $60,000.00 in future medical expenses

bears no relation to any of the evidence presented. In light of this internally

inconsistent verdict, we conclude that the jury manifestly erred in failing to award the

full value of the medical treatment that was established at trial to be medically

21

necessary and we amend the award to $80,126.00, the minimum amount of future

medical expenses established at trial.

Loss of Earning Capacity

The trial on the merits began on Tuesday, April 22, 2008. On Thursday, April

17, 2008, the defendants filed two motions in limine, seeking to exclude testimony

from Glenn M. Hebert, a Lafayette, Louisiana vocational rehabilitation counselor, and

Dr. R. Douglas Womack, Ph.D., a Lafayette, Louisiana consulting economist,

concerning Mrs. Brown’s loss of earning capacity. The trial court held a hearing on

these motions the day before the trial was to begin and, at the close of that hearing,

granted the motions to exclude the testimony. Immediately before the trial began the

next day, the trial court clarified its ruling, stating that Mr. Hebert could not testify

at all and that Dr. Womack could not testify on any wage issue.5

In response to this ruling, the Browns moved to proffer the excluded evidence.

The trial court did not allow them to make a proffer on the record. Instead, it required

the Browns to submit their evidence by affidavit. Pursuant to the trial court’s order,

the Browns proffered the affidavit of each excluded expert; the affidavit of Dr. Juneau

stating that Mrs. Brown is permanently restricted to “light duty” as a result of her

injuries in the accident; and the affidavits from Mr. and Mrs. Brown setting forth

what their testimony would have been regarding Mrs. Brown’s loss of future earning

capacity. The defendants countered these affidavits with some of the pleadings

addressing the issue; excerpts from Mrs. Brown’s pretiral deposition; excerpts from

Mr. Hebert’s pretrial deposition; excerpts from a deposition of Dr. Roger W. Kula,

5
On December 10, 2008, the trial court signed a judgment stating that it granted the motions
in limine “excluding any and all evidence and/or testimony regarding vocational opportunities and/or
salaries sought to be introduced by Plaintiff for the field of nursing” from either Mr. Hebert or Dr.
Womack. However, the oral ruling issued immediately before trial began was much more extensive
in that the trial court prohibited any testimony from the two experts concerning lost wages.

22

MD, a New York physician deposed by the Browns who did not testify at trial; a copy

of an order from the Western District of Louisiana United States District Court, in

Mulligan v. Chevron USA, Inc., 06-1062 W.D.La. (7/27/07), in which the trial court

ruled that Mr. Hebert would not be allowed to testify in the matter before that court;

a transcript of the July 25, 2007 Daubert hearing contesting Mr. Hebert’s ability to

testify in Mulligan; and excerpts from Mr. Hebert’s deposition in this case.

The Browns argue on appeal that the trial court erred in granting the motions

in limine and in not allowing their experts to testify. We agree.

Louisiana Code of Evidence Article 702 provides:

If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or
otherwise.

This rule is subject to the balancing requirements of La.Code. Evid. art. 403, which

allows relevant evidence to be excluded “if its probative value is substantively

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

the jury.” Id. The trial judge is vested with broad discretion in ruling on the scope

of expert testimony. La.Code Evid. art. 702.

In their motions before the trial court as well as before us on appeal, the

defendants do not argue that the evidence at issue should have been precluded based

on the balancing requirement of La.Code Evid. art. 403. Instead, they argue that the

testimony is not admissible under the standards set out in Daubert v. Merrell Dow

Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993).

We find that the defendants’ reliance on Daubert is clearly without merit.

Daubert is applicable where the complaint is to the methodology or some new

23

scientific or medical technique that may be used by an expert witness in his or her

testimony. Here the defendants complain of nothing more than the correctness of the

factual basis underlying the experts’ opinions. That being the case, the Daubert

factors are not relevant. Menard v. Lafayette Ins. Co., 09-29 (La.App. 3 Cir. 6/3/09),

13 So.3d 794, writ granted, 09-1869 (La. 11/20/09), 25 So.3d 804.

The trial court did not base its decision on the defendants’ Daubert argument.

Instead, it concluded that neither witness could testify concerning loss of earning

capacity because, at the time of trial, Mrs. Brown had not enrolled in nursing school

and was not then a nutritionist. That being the case, the trial court concluded, any

testimony concerning lost wages in either of these two fields would be based on

conjecture.

The general rule is that “the factual basis for an expert’s opinion goes to the

credibility of the testimony, not its admissibility, and it is up to the opposing party to

examine the factual basis of the opinion in cross-examination.” Loudermill v. Dow

Chem. Co., 863 F.2d 566, 570 (8 Cir.1988). Appellate review of a question of law

is simply a decision as to whether the trial court’s decision is legally correct or

incorrect. Jim Walter Homes, Inc. v. Jessen, 98-1685 (La.App. 3 Cir. 3/31/99), 732

So.2d 699. The fact that Mrs. Brown had not enrolled in nursing school does not, as

a matter of law, preclude the Browns from presenting expert testimony on whether

Mrs. Brown suffered a loss of earning capacity because she is now unable to become

a nurse. The factual basis of the experts’ opinions is a credibility issue that should

have been resolved by the jury. Loudermill, 863 F.2d 566. Accordingly, we find that

the trial court erred in granting the defendants’ motion in limine to exclude the

testimony of Mr. Hebert and Dr. Womack.

24

We need not remand this matter for a new trial on this issue because the proffer

provides us with a complete record. When a complete record has been made through

a proffer, “the appellate court is able to conduct a de novo review of the record,

including the proffered evidence, to render a decision on appeal.” Williams v.

Williams, 06-2491, p. 10 (La.App. 1 Cir. 9/14/07), 970 So.2d 633, 640.

Because the trial court placed no limits on the content or amount that could be

submitted in the parties’ proffers, we conclude that the record is sufficiently complete

to allow us to render a judgment on the issue of Mrs. Brown’s loss of future earning

capacity without a remand for additional evidence. Foley v. Entergy La., Inc., 06-983

(La. 11/29/06), 946 So.2d 144. Accordingly, we review the record de novo to award

the appropriate damages for any loss of Mrs. Brown’s future earning capacity the

Browns may have established. Williams, 970 So.2d 633.

This court explained the meaning of loss of earning capacity in Batiste v. New

Hampshire Ins. Co., 94-1467, p. 3-4 (La.App. 3 Cir. 5/3/95), 657 So.2d 168, 170, writ

denied, 95-1413 (La. 9/22/95), 660 So.2d 472 (citations omitted):

Loss of earning capacity is not the same as lost wages. Rather,
earning capacity refers to a person’s potential. Earning capacity is not
necessarily determined by actual loss. While the plaintiff’s earnings at
the time of the accident may be relevant, such figures are not necessarily
indicative of his past or future lost earning capacity. The plaintiff need
not be working or even in a certain profession to recover this type of
award. What is being compensated is the plaintiff’s lost ability to earn
a certain amount, and he may recover such damages even though he may
never have seen fit to take advantage of that capacity.

In determining whether a personal injury plaintiff is entitled to
recover for the loss of earning capacity, the trial court should consider
whether and how much plaintiff’s current condition disadvantages him
in the work force. The trial court should thus ask itself what plaintiff
might be able to have earned but for his injuries and what he may now
earn given his resulting condition.

25

The very nature of lost earning capacity makes it impossible to
measure the loss with any kind of mathematical certainty. The facts of
each case must take into account a variety of factors, including the
plaintiff’s condition prior to the accident, his work record prior to and
after the accident, his previous earnings, the likelihood of his ability to
earn a certain amount but for the accident, the amount of work life
remaining, inflation, and the plaintiff’s employment opportunities before
and after the accident.

Mrs. Brown testified at trial that she graduated from University of Louisiana

at Lafayette in 2004 with a degree in dietetics, having earned a 3.69 grade point

average. When she graduated, she did not become employed in the dietetics field

both because she needed fifteen hours in graduate courses before she could get into

the internship program and because she was already pregnant with their first

daughter. Mrs. Brown’s proffered affidavit asserts that in December of 2005, she

spoke with Bonnie Johnson, the head of Louisiana State University-Eunice’s nursing

program; that Ms. Johnson had reviewed Mrs. Brown’s transcripts from University

of Louisiana at Lafayette and prepared a degree plan outlining the courses that would

apply toward Mrs. Brown’s nursing degree; and that Ms. Johnson had advised Mrs.

Brown that she was eligible for the “Fast Track” nursing program and could graduate

in twenty-four months. Mrs. Brown further asserted in her affidavit that she had

obtained a formal application before the January 2, 2006 accident which had a March

1, 2006 deadline for submission, and that she fully intended to pursue a nursing

career.

Dr. Juneau’s proffered affidavit assets that Mrs. Brown “is permanently

restricted to ‘light duty’ as a direct result of the injuries associated with her motor

vehicle accident on January 2, 2006,” and that her medical restrictions related to her

injuries would prohibit her from becoming a nurse. The trial evidence separate from

the proffer supports this conclusion as well. Dr. Juneau’s December 5, 2007 office

26

note, which was introduced into evidence at trial, reflects his conclusion that if Mrs.

Brown were to undergo the operation she would suffer a degree of permanent

disability that would preclude her from being able to perform the lifting activities

required of a nurse, while if she did not did not have the surgery and continued to

have persistent and rather severe thoracolumbar pain, she would still be unable to

work as a nurse. The permanent disability testified to by Dr. Juneau is not

controverted with any other medical evidence. In his proffered affidavit, Mr. Hebert

agreed with Dr. Juneau’s conclusion that Mrs. Brown’s permanent injuries would

preclude her from pursuing a nursing profession.

After reviewing the record as a whole, we accept Dr. Juneau’s statement that

Mrs. Brown will be permanently restricted to “light duty,” and Mr. Hebert’s assertion

that this restriction prevents her from receiving a nursing degree. We also find

credible Mrs. Brown’s statement that she intended to earn a nursing degree. In

making that finding, we place great emphasis on her former scholastic success.

However, we note that there was no indication that Mrs. Brown is unable to pursue

a career in dietetics because of the accident. Accordingly, we conclude that the

proper measure of Mrs. Brown’s lost earning capacity is the difference between a

future career in nursing and one in dietetics.

Dr. Womack’s proffered affidavit and report detail the economic value of Mrs.

Brown’s loss of earning capacity. Dr. Womack based his calculations on the theory

that had the accident not occurred, Mrs. Brown could have become a certified

nutritionist within two years after the accident and that had she done so, her earning

capacity would have been approximately $43,680.00 per year; that if Mrs. Brown

completed her training in dietary science and began working as a dietitian/nutritionist

27

in June of 2009, attributing this delay to her accident, her earning capacity would be

only $31,830.00 per year; and that if Mrs. Brown had become a registered nurse in

June of 2009, her earning capacity would be $51,750.00 per year. Because we have

found that Mrs. Brown’s accident did not impinge on her career as a

dietitian/nutritionist, we base our evaluation of Mrs. Brown’s loss of earning capacity

on the salary difference between a dietitian/nutritionist earning $43,680.00 per year

and a registered nurse earning $51,750.00, and assume that she would have begun

working in either field in June of 2009, when her youngest child was almost two

years old. Dr. Womack’s report shows that the present value of Mrs. Brown’s earning

capacity as a dietitian/nutritionist earning $43,680.00 per year is $1,113,522.00, while

the present value of her earning capacity as a registered nurse earning $51,750.00 per

year is $1,262,951.00. Accordingly, we find that Mrs. Brown’s loss of earning

capacity has a present-day value of $149,429.00 and amend the trial court’s judgment

to reflect that new award.

Court Costs

On March 20, 2008, the defendants tendered an offer of judgment pursuant to

La.Code Civ.P. art. 970, wherein they offered to settle all claims arising from the

automobile accident for $90,000.00. The Browns rejected this offer. On May 16,

2009, the defendants moved to tax all costs incurred since March 20, 2008, to the

Browns because the ultimate judgment rendered at trial was less than twenty-five

percent of the $90,000.00 offered tendered by the defendants on March 20, 2008. See

La.Code Civ.P. art. 970(C). The trial court granted the defendants that relief, and the

Browns argue on appeal that this assessment was in error. Given our findings on the

28

liability and quantum issues, we agree. We reverse the trial court judgment in this

regard and tax all costs of court to the defendants.

DISPOSITION

For the foregoing reasons, we reverse that portion of the trial court’s December

10, 2008 judgment that reduced the monetary award in favor of Laura Cox Brown by

fifty percent. We affirm those portions of the judgment finding sole fault on the part

of Caroline E. Lambert and awarding $26,000.00 in past medical expenses to the

plaintiffs, Laura Cox Brown and C. Linzay Brown. We amend the judgment to award

the plaintiffs $250,000.00 in general damages; $80,126.00 in future medical

expenses; $149,429.00 in loss of earning capacity; and $25,000.00 for Mr. Brown’s

loss of consortium. We also reverse that portion of the judgment taxing the Browns

with court costs and tax the defendants, Caroline Lambert and Shelter Mutual

Insurance Company, with all costs of court, including costs of this appeal.

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

29