Audrey Thompson v. State Farm Mutual Automobile Ins. Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1369

AUDREY THOMPSON, ET AL.

VERSUS

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY, ET AL.

ON REMAND FROM THE
LOUISIANA SUPREME COURT

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APPEAL FROM THE
ALEXANDRIA CITY COURT
PARISH OF RAPIDES, NO. 110,030
HONORABLE RICHARD E. STARLING, JR., CITY COURT JUDGE

**********

MARC T. AMY
JUDGE

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Court composed of Marc T. Amy, Elizabeth A. Pickett, and Shannon J. Gremillion,
Judges.

VACATED IN PART AND AFFIRMED IN PART AS AMENDED.

Michael L. Glass
1733 White Street
Alexandria, LA 71301
(318) 484-2917
COUNSEL FOR PLAINTIFFS/APPELLEES:
Audrey Thompson
Charles Thompson

Wilbert J. Saucier, Jr.
2220 Shreveport Highway
Pineville, LA 71360
(318) 473-4146
COUNSEL FOR PLAINTIFFS/APPELLEES:
Audrey Thompson
Charles Thompson

Russell L. Potter
Stafford, Stewart & Potter
Post Office Box 1711
Alexandria, LA 71309
(318) 487-4910
COUNSEL FOR DEFENDANT/APPELLANT:
Government Employees Insurance Company

Bonita K. Preuett-Armour
Armour Law Firm
1744 Jackson Street
Alexandria, LA 71301
(318) 442-6611
COUNSEL FOR DEFENDANT/APPELLANT:
State Farm Mutual Automobile
Insurance Company

AMY, Judge.

Mrs. Thompson sustained injury in an automobile accident and filed suit in the

City Court of Alexandria. The city court awarded general damages of $50,000.00 to

Mrs. Thompson and an additional $50,000.00 to Mr. Thompson for loss of

consortium and for medical expenses on behalf of the couple’s community. On

remand from the Supreme Court of Louisiana, this court considers whether the

judgment exceeded the city court’s jurisdictional limit in light of the award to the

husband for the expenses on behalf of the community. We vacate in part and affirm

in part as amended.

Factual and Procedural Background

As explained in this court’s original opinion in this matter, Audrey Thompson

filed this suit in the City Court of Alexandria for damages sustained in an automobile

accident. See Thompson v. State Farm Mut. Auto. Ins. Co., 09-1369 (La.App. 3 Cir.

4/7/10), 34 So.3d 1053. Her husband, Charles Thompson, joined in the suit, seeking

not only his own damages for loss of consortium, but medical expenses and loss of

his wife’s income on behalf of the couple’s community property regime. The

plaintiffs proceeded in city court against Chad Harp1, the driver at fault in the

accident, the insurer of the vehicle he was driving, State Farm Mutual Automobile

Insurance Company (State Farm), and their own insurer, Government Employees

Insurance Company (GEICO), as their uninsured motorist carrier. GEICO later

intervened as Mr. Thompson’s automobile insurer and sought repayment of medical

payments made thereunder.

1
The pleadings in this case, as well as the judgment, refer to the defendant’s name as
“Harpe”. In this opinion, we utilize the spelling adopted by the supreme court in its opinion in this
case, “Harp”. Mr. Harp’s deposition, included in the record, reflects the latter spelling of his name.
However, the recasting of the judgment, included in the decree to this opinion, maintains the spelling
“Harpe” in order to be consistent with the remainder of the judgment rendered by the trial court.

In pre-trial proceedings, the trial court found that Mr. Harp was one hundred

percent at fault in the accident, that State Farm provided liability coverage for the

accident ($100,000.00 per person and $300,000.00 per accident), and that the

plaintiffs’ GEICO policy provided both UM coverage for the accident ($10,000.00

per person and $20,000.00 per accident) and medical pay ($5,000.00 per person).

The trial court ultimately determined that Mrs. Thompson’s general damages

exceeded $100,000.00, yet limited her general damages to $50,000.00 pursuant to its

jurisdictional limit. The trial court also found Mr. Thompson entitled to a $20,000

award for loss of consortium. It further concluded that Mr. Thompson was entitled

to recover $8,129.52 in Mrs. Thompson’s past medical expenses insofar as they were

incurred by the community and that he, too, could recover future medical expenses

insofar as these were a “community obligation.” The trial court valued those future

medical expenses in excess of $117,000.00. However, as Mr. Thompson’s one-half

of these community damages, along with the other damages awarded to Mr.

Thompson, exceeded the court’s $50,000.00 jurisdictional limit, the trial court again

recognized that its jurisdictional limit required a downward adjustment of the

damages.

The judgment subsequently entered contained two separate $50,000.00 awards.

The first, made to Mrs. Thompson, reflected a $50,000.00 general damages award.

The other, entered in favor of Mr. Thompson, was composed of a $20,000.00 loss of

consortium award made to him individually and, “on behalf of the marital

community,” an $8,129.52 award for past medical expenses and a $21,870.48 award

of future medical expenses. The judgment made the past medical expenses award

subject to GEICO’s claim for reimbursement of $5,000.00. Thus, the judgment

ordered that this sum “be paid in preference and priority to any past medical

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expenses” paid to Mr. Thompson and that judgment was accordingly rendered in

favor of Mr. Thompson, “on behalf of the marital community,” in the amount of

$25,000.00.

With regard to GEICO as a UM provider, the reasons for ruling indicate that

the court found “that the jurisdictional limit of the court falls within the liability limits

of the policy issued by State Farm and, accordingly, the claim against GEICO is

dismissed.” Yet, the judgment was silent as to this dismissal. GEICO thereafter filed

a motion for new trial in this regard. At this time, the plaintiffs argued that the UM

provider should not be dismissed due to the potential insolvency of State Farm. The

trial court denied the motion for new trial.

State Farm appealed the judgment, asserting that the city court exceeded its

jurisdictional limit insofar as it awarded the jurisdictional limit to Mrs. Thompson for

her general damages claim and further awarded her “special damages” to Mr.

Thompson. State Farm also contested the quantum of Mr. Thompson’s loss of

consortium claim and, later, filed an exception of lack of subject matter jurisdiction.

On review, this court granted the exception of lack of subject matter jurisdiction,

vacated the judgment, and remanded with instructions. See Thompson, 34 So.3d

1053.

The Supreme Court of Louisiana subsequently granted GEICO’s application

for writ of certiorari and/or review and reversed this court’s decision due to a finding

of error in the determination that the city court lacked jurisdiction to retain the case.

Thompson v. State Farm Mut. Auto. Ins. Co., 10-1244 (La. 11/19/10), __ So.3d __.

Accordingly, the supreme court remanded the matter since the calculation of damages

as to each plaintiff had not been addressed by this court. It instructed that, “[m]ore

particularly, the court of appeal must consider whether the city court erred in

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awarding Charles $30,000 for community-incurred medical expenses after awarding

Audrey the jurisdictional limit.” Id. at __. In a related footnote, it directed the parties

and this court:

to consider whether an award to Charles on his claim for medical
expenses on behalf of the of the community also inures to the benefit of
Audrey who has already been awarded her jurisdictional limit. Due
consideration should also be given to the question of whether Audrey’s
cause of action as a result of the car accident can be divided. See also
Russell v. Shelter Mutual Ins. Co., 09-1451 (La.App. 3 Cir. 5/5/10), 38
So.3d 561, writs denied, 10-13[00] (La. 9/24/10), __ So.3d __.

Id.

In State Farm’s brief on remand, it assigns the following as error:

Assignment of Error Number One: The city court erred when it awarded
Charles Thompson $30,000.00 on his claim on behalf of the community
for medical expenses because the city court exceeded its jurisdictional
limits and improperly divided Audrey Thompson’s cause of action for
general and special damages. The award to Charles Thompson on
behalf of the community should be reversed and set aside and the award
to Audrey Thompson should be modified to include all claims for
general and special damages, subject to the jurisdictional limits of the
city court and the award to GEICO.

Assignment of Error Number Two: The city court erred in awarding
Charles Thompson $20,000.00 for loss of consortium.

GEICO also filed a remand brief, again asserting error in the trial court’s

failure to dismiss it in its capacity as the UM liability provider.

Discussion

Jurisdictional Limit

The City Court of Alexandria’s jurisdictional limit is established by La.Code

Civ.P. art. 4843(H), which provides that: “In the City Court of Alexandria . . . , the

civil jurisdiction is concurrent with the district court in cases where the amount in

dispute, or the value of the property involved, does not exceed the amount provided

in Article 1732(1) for purposes of demanding a jury trial.” Louisiana Code of Civil

Procedure Article 1732(1) states that a trial by jury is unavailable in “[a] suit where

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the amount of no individual petitioner’s cause of action exceeds fifty thousand dollars

exclusive of interest and costs.” Accordingly, the City Court of Alexandria’s

jurisdictional limit is fifty thousand dollars.

Medical Expenses

The central focus on remand is State Farm’s contention that the trial court

exceeded its jurisdictional limit by awarding medical expenses to Mr. Thompson, on

behalf of the community. State Farm argues that, because the medical expenses were

or would be incurred by Mrs. Thompson, the award to Mr. Thompson is

impermissibly splitting Mrs. Thompson’s cause of action.

However, the plaintiffs contend, and the trial court concluded, that either

spouse was entitled to pursue this claim pursuant to La.Code Civ.P. art. 686, which

provides that:

Either spouse is the proper plaintiff, during the existence of the
marital community, to sue to enforce a community right; however, if one
spouse is the managing spouse with respect to the community right
sought to be enforced, then that spouse is the proper plaintiff to bring an
action to enforce the right.

When doubt exists whether the right sought to be enforced is a
community right or is the separate right of the plaintiff spouse, that
spouse may sue in the alternative to enforce the right.

When only one spouse sues to enforce a community right, the
other spouse is a necessary party. Where the failure to join the other
spouse may result in an injustice to that spouse, the trial court may order
the joinder of that spouse on its own motion.

We point out that, undoubtedly, La.Code Civ.P. art. 686 grants a spouse the

right to sue to enforce a community right. However, it also provides that when one

spouse exercises this community right, “the other spouse is a necessary party.” This

clause undermines the contention that Mr. Thompson could receive a separate award

for Mrs. Thompson’s medical expenses claim, even if he pursued this alleged

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community right on behalf of the community. On this point, we find no difference

between the awards for past and future medical expenses.

The plaintiffs additionally point to La.Civ.Code art. 2344, which instructs that:

Damages due to personal injuries sustained during the existence
of the community by a spouse are separate property.

Nevertheless, the portion of the damages attributable to expenses
incurred by the community as a result of the injury, or in compensation
of the loss of community earnings, is community property. If the
community regime is terminated otherwise than by the death of the
injured spouse, the portion of the damages attributable to the loss of
earnings that would have accrued after termination of the community
property regime is the separate property of the injured spouse.

(Emphasis added.) This merely establishes that the special damages sought by Mrs.

Thompson may be community property. It does not alter the plaintiffs’ responsibility

of pursuing that property right in a court of sufficient jurisdiction in order to avail

themselves of the full amount sought if desired.2 This seems clear when viewed in

light of La.Code Civ.P. art. 686, which specifically requires that if one spouse seeks

enforcement of a community right, the other spouse, in this instance Mrs. Thompson,

would be considered a necessary party. Although Mrs. Thompson was a party to the

petition, she was not, ultimately, a party to the special damages claim insofar as her

jurisdictional limit was met by the $50,000.00 award to her. Furthermore, and as the

judgment is styled, the city court awarded medical expenses to Mr. Thompson on

behalf of the community.3 Pursuant to La.Civ.Code art. 2344, however, an award to

2
Otherwise, Louisiana Code of Civil Procedure Article 5 provides that when a plaintiff
reduces his or her claim on a single cause of action to bring it within the jurisdiction of a court and
judgment is rendered in that regard, the plaintiff “remits the portion of his [or her] claim for which
he [or she] did not pray for judgment, and is precluded thereafter from demanding it judicially.”
3
Clearly this could be a problem at the time of any subsequent divorce or termination of the
community. Such an award could subject the fifty thousand dollar jurisdictional limit of the city
court to manipulation. While an injured spouse could be awarded the jurisdictional limit for general
damages, as their separate property, when additional special damages, as in the case before us, have
been awarded to the non-injured spouse, on behalf of the community, absurd results follow. By way
of illustration, in the event of a subsequent termination or partition of a community property regime,
the community award to the non-injured spouse, would, arguably return, in part, to the injured
spouse. This would permit maneuvering around the jurisdictional limit available to the injured

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the non-injured spouse for the special damages would be part of the couple’s

community.

Further, in Russell, 38 So.3d 561, cited by the supreme court in its directions

to this court, a panel of this court considered a factual background similar to the

present one and concluded that the award of medical expenses stemming from a

spouse’s injuries could not be “split” from the injured spouse’s damages in

circumvention of the city court’s jurisdictional limit. As here, the plaintiffs in that

case asserted that La.Code Civ.P. art. 686 permitted the non-injured spouse to

recover, on behalf of the community, the injured spouse’s medical expenses when the

injured spouse was awarded the jurisdictional limit in general damages. The Russell

panel determined that, by shaping its award as such, the trial court “split or divided

Mr. Russell’s cause of action (comprising both general and special damages) between

Mr. and Mrs. Russell[.]” Id. at 565.

The Russell panel found similarity between the case before it and the situation

presented in Hill v. Coregis Insurance Co., 40,199 (La.App. 2 Cir. 9/21/05), 911

So.2d 939, wherein the second circuit concluded that an injured’s spouse’s claims for

general and special damages could not be considered as distinct causes of action. See

Russell, 38 So.3d 561. Instead, the second circuit concluded that such an

interpretation would allow the plaintiff to “avoid [a] jury trial and then exceed the

limitation under the guise that different elements of her cause of action, such as

medical expenses, physical pain, mental anguish, disfigurement, loss of enjoyment

of life, humiliation, and others, each represented a separate cause of action.” Id. at

565, quoting Hill, 911 So.2d at 944. Instead, the second circuit concluded, the

spouse. In order to alleviate such a potentiality, the portion awarded to the non-injured spouse would
have to have been recognized as his separate property. But see La.Civ.Code art. 2344.

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“parts” represented a single cause of action and remanded the matter for a jury trial.

Id.

Further, the Russell panel rejected the plaintiffs’ argument that Hill was

distinguishable since the defendants, in Russell, did not seek to transfer the matter to

district court. Id. Instead, the panel observed that the record included a request by

the Russell defendants to transfer the matter to district court due to the co-plaintiffs’

allegations in an amending petition that their cause of action exceeded the city court’s

jurisdictional limit. We do not find this matter distinguishable from Hill on the basis

asserted by the plaintiffs.

Instead, and as it was found to be in Russell, 38 So.3d 561, the holding of Hill

is applicable. Notably, “[i]t is the cause of action, not the nature of the claim or

claims made, that determines the jurisdictional limit.” Id. at 565. As it is a

jurisdictional issue, a parties’ request for a transfer to district court for purposes of

a jury trial is of no importance. In the present matter, that cause of action, as a whole,

rested with Mrs. Thompson, not Mr. Thompson. To find that it was a cause of action

that Mr. Thompson could enforce separately, on the facts now before us, would

circumvent State Farm’s right to a jury trial, whether or not requested, but would also,

certainly, allow circumvention of the jurisdiction of the city court. Shaping a claim

or judgment in such a fashion is inappropriate. Instead, “[t]he law does not allow the

splintering of a cause of action in direct circumvention of the jurisdictional limit of

a court.” Id. at 565.

Accordingly, as the general and special damages at issue by this assignment all

stemmed from Mrs. Thompson’s cause of action, we vacate that portion of the

judgment awarding past and future medical expenses to Mr. Thompson, on behalf of

the community.

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Additionally, the judgment requires amendment as it provided that, with regard

to GEICO’s claim for reimbursement of medical expenses paid, the $5,000.00 due to

be reimbursed, “be reduced from the total past medical expense award made to

Charles Thompson herein, and said sum to be paid in preference and priority to any

past medical expenses paid to the said Charles Thompson.” Instead of reducing the

award made to Mr. Thompson, Mrs. Thompson’s recovery should have been reduced

insofar as the cause of action was, of course, hers. Although the trial court reduced

Mrs. Thompson’s claim to permit recovery of only a portion of her general damages

due to the jurisdictional limit, it clearly found that she incurred past medical expenses

as well. We do not find that a choice to style the amount awarded under the

jurisdictional limit as general damages, instead of attributing at least a portion of the

award to the special damages award, permits avoidance of GEICO’s reimbursement

claim.4 Thus, we further amend the judgment to indicate that the $5,000.00 awarded

to GEICO be made payable from the $50,000.00 awarded to Mrs. Thompson, thus

ultimately reducing Mrs. Thompson’s award from $50,000.00 to $45,000.00.

Loss of Consortium

The underlying judgment also includes a loss of consortium award to Mr.

Thompson, individually, in the amount of $20,000.00. This type of claim is separate

and apart from the spouse’s claim. See McGee v. A C And S, Inc., 05-1036 (La.

7/10/06), 933 So.2d 770. On appeal, State Farm asserts that the $20,000.00 award to

Mr. Thompson was an abuse of discretion. As this assignment was not originally

considered, we review this assignment on remand.

4
In the petition instituting this matter, the plaintiffs asserted that if the court determined that
Mr. Thompson could not recover Mrs. Thompson’s medical expenses and loss of income on behalf
of the community, then: “in that event and only in that event, as an alternative plea AUDREY
THOMPSON brings this action to recover on behalf of the marital community damages [sic] the
following: hospital, medical, pharmaceutical, chiropractic, physical therapy and other medi[c]ally
related expenses and the community’s loss of the wife’s income.”

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A loss of consortium claim includes the elements of society, sex, service, and

support. Augustine v. SAFECO Nat. Ins. Co., 08-1515 (La.App. 3 Cir. 6/10/09), 18

So.3d 761. Mrs. Thompson testified at trial that she and her husband were “extremely

close” prior to her injury. She described him as her “soul mate[.]” Yet, after the

accident, their sexual relationship “changed drastically[.]” Mr. Thompson explained

that their sexual relationship was “virtually nonexistent[.]” In other regards, Mr.

Thompson explained that he now performs the housekeeping tasks and, although Mrs.

Thompson continues to do the majority of the cooking, he must now assist her. While

the award is admittedly in the upper range of a permissible loss of consortium award

in this type of case, we find that, in light of the above testimony, it was within the trial

court’s discretion.

This assignment lacks merit.

Dismissal

GEICO also appealed in this case and asserted that the trial court erred in

failing to dismiss it from the judgment insofar as the award made to the plaintiffs was

clearly within the State Farm policy limits. It contends that the plaintiffs’ UM policy

was, therefore, not implicated. The trial court rejected this claim by GEICO at the

time GEICO filed a motion for new trial on this basis. In opposition to the motion for

new trial, the plaintiffs argued that GEICO’s presence was required in the event that

State Farm became insolvent before the judgment was satisfied.

However, the plaintiffs’ argument is clearly speculative. Certainly there is no

evidence in this record to indicate even the potential of State Farm’s insolvency. Nor

is there any evidence, at all, indicating that the State Farm policy limits are

inadequate to satisfy this judgment. Accordingly, we dismiss GEICO as a defendant

from this matter without prejudice.

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DECREE

For the foregoing reasons, the City Court of Alexandria’s judgment is vacated

insofar as it awarded Charles Thompson special damages on behalf of the community

property regime. The judgment is further amended to reflect that the reimbursement

claim of Government Employees Insurance Company is payable from the award made

to Audrey Thompson. That pertinent portion of the judgment is recast as follows:

As to GOVERNMENT EMPLOYEES INSURANCE
COMPANY’S (GEICO’S) claim for reimbursement of medical expenses
paid, the Court finds the Intervenor entitled to FIVE THOUSAND
($5,000.00) DOLLARS, said amount to be reduced from the award
made to Audrey Thompson herein, and said sum to be paid in preference
and priority to any damages paid to Audrey Thompson.

Finally, the judgment is amended to reflect the dismissal of this claim, without

prejudice, against GEICO, as a defendant. In all other regards, the judgment is

affirmed. All costs of this appeal are assigned to the plaintiffs, Audrey and Charles

Thompson.

VACATED IN PART AND AFFIRMED IN PART AS AMENDED.

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