Tasha Tingle, Etc. v. American Home Assurance Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-71

TASHA TINGLE, ET AL.

VERSUS

AMERICAN HOME ASSURANCE
COMPANY, ET AL.

consolidated with 10-72

LEVI J. TINGLE, ET AL.

VERSUS

AMERICAN HOME ASSURANCE
COMPANY, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2006-5168 c/w 2007-1073, DIVISION D
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

**********

OSWALD A. DECUIR
JUDGE

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Court composed of Oswald A. Decuir, Marc T. Amy, and James T. Genovese, Judges.

AFFIRMED AS AMENDED.

James Ryan III
Timothy T. Roniger
Jeffery A. Clayman
James Ryan III & Associates, LLC
201 St. Charles Avenue, Suite 2530
New Orleans, LA 70170
(504) 599-5990
Counsel for Defendant/Appellant:
G. B. Boots Smith Corporation

Raymond J. Pajares
E. Ashley Carter
Pajares & Schexnaydre, L.L.C.
68031 Capital Trace Row
Mandeville, LA 70471
(985) 292-2000
Counsel for Defendant/Appellant:
Colony National Insurance Company

John E. Jackson
Jackson Law Firm
P. O. Box 1239
Lake Charles, LA 70602
(337) 433-8866
Counsel for Plaintiff/Appellee:
Tasha Tingle

Troy Allen Broussard
Allen & Gooch
P. O. Drawer 81129
Lafayette, LA 70598-1129
(337) 291-1370
Counsel for Defendant/Appellant:
Brian S. Montgomery

Blake R. David
Broussard & David
P. O. Box 3524
Lafayette, LA 70502-3524
(337) 233-2323
Counsel for Plaintiff/Appellee:
Levi Tingle

DECUIR, Judge.

Brian S. Montgomery (Montgomery), his employer, G.B. Boots Smith

Corporation (Boots Smith), and their excess insurer, Colony National Insurance

Company (Colony), appeal a jury verdict awarding compensatory and exemplary

damages to Tasha, Levi and Madison Tingle.

On March 5, 2006, Montgomery was driving a tractor trailer owned by his

employer, Boots Smith. Montgomery drove the tractor trailer through a red light

striking the Tingle vehicle. Tasha and Levi Tingle were injured, and their two-year-

old daughter, Madison, was killed.

The Tingles filed suit seeking compensatory damages and subsequently

exemplary damages. The Plaintiffs settled their claims against Montgomery and

Boots Smith for the $1,000,000.00 policy limits of Boots Smith’s primary liability

insurer, American Home Assurance Company, reserving their right to proceed against

their excess insurer, Colony, for any other damages covered by insurance.

The matter proceeded to trial, and the jury awarded roughly 10.8 million dollars

in damages, of which five million dollars were exemplary damages. Defendants

lodged this appeal, alleging numerous assignments of error.

INCOMPLETE AND DEFICIENT RECORD

We first address the Defendants’ assignment alleging that the trial court erred

in allowing an incomplete and deficient record of the proceedings to be made.

Specifically, the Defendants urge that the case be remanded for a new trial because

the trial court erred in failing to grant a mistrial when it was discovered two and one-

half days into the four-day trial that bench conferences had not been recorded. We

disagree.

Article 1 of the Louisiana Constitution provides in pertinent part:

§ 19. Right to Judicial Review

Section 19. No person shall be subjected to imprisonment or
forfeiture of rights or property without the right of judicial review based
upon a complete record of all evidence upon which the judgment is
based. This right may be intelligently waived. The cost of transcribing
the record shall be paid as provided by law.

While most often arising in the context of criminal proceedings, the protection is

equally applicable to civil proceedings. As an appellate court, we must at all times

be “keenly aware” of and “zealously protective of the rights of judicial review”

granted by the constitution. Something Irish Co. v. Rack, 333 So.2d 773, 775

(La.App. 1 Cir. 1976).

In Arnette v. NPC Services, Inc., 00-1776 (La.App. 1 Cir. 9/28/01), 809 So.2d

384, 386-87, the court explained why a complete record is crucial:

In order to determine whether the trial court’s interpretation of the
evidence was correct, the evidence must be available to the reviewing
court. Louisiana Code of Civil Procedure article 2132 allows the
correction of an appellate record which omits a material part of the trial
record; however, Article 2132 does not permit the introduction of new
evidence after the transcript of the appeal is filed in the appellate court.
Moreover, the court of appeal has no jurisdiction to receive new
evidence. Nickens v. Patriot Home Systems, 97-0291 (La.App. 1 Cir.
2/20/98), 708 So.2d 1184, 1186. Pursuant to La. C.C.P. art. 2161, an
appeal shall not be dismissed because the trial record is missing,
incomplete or in error, no matter who is responsible, and the appellate
court may remand the case either for a retrial or for correction of the
record.

Plaintiffs argue that bench conferences are not required to be recorded and

customarily they are not. They cite Bernard v. Richoux, 464 So.2d 856, 860 (La.App.

5 Cir. 1985), where the fifth circuit said:

[B]ench conferences, in our experience, nearly always are NOT
recorded. Otherwise, why have a conference at the bench? Further, we
do not feel that counsel for appellant is entitled to rely on his
“assumption” that such usually nonrecorded conferences were being
recorded. If it was that important to him, it was his duty to be sure.

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At first glance, this would appear to resolve the issue but for one critical distinction.

Customarily bench conferences are not recorded because they deal with incidental

matters regarding the administration of the trial rather than evidentiary rulings. This

case is different. The court required counsel to approach the bench with their

objections stating:

We’ll do it up here. And I want to minimize making the jury leave for
anything that comes up during trial. We will try to handle it up here.
We’re not going to argue with each other. Lawyers can direct their
arguments to me, not each other. And, you know, make an objection
and I’ll rule on it and we’ll keep moving.

Given that it was customary in this judge’s court to record bench conferences, this

procedure was not particularly problematic. However, due to a change in court

reporters, two and one-half days into the four-day trial, it was discovered that the

bench conferences were not being recorded.

Defense counsel requested a mistrial which was denied. Counsel and the trial

court argued about the number and significance of the unrecorded conferences.

Finally, the trial court ordered defense counsel, over its objection, to attempt to

recreate the unrecorded objections from memory. At the close of trial, defense

counsel renewed its objection in the form of a motion for new trial which was denied

by the trial court.

Nevertheless, our courts have consistently held that a defendant must point to

specific prejudice regarding relevant evidence in order for the failure to record bench

conferences to constitute reversible error. State v. Hoffman, 98-3118, 768 So.2d 542

(La. 4/11/00); State v. Castleberry, 98-1388 (La. 4/13/99), 758 So.2d 749, cert.

denied, 528 U.S. 893, 120 S.Ct. 220 (1999); State v. Brumfield, 96-2667 (La.

10/20/98), 737 So.2d 660, cert. denied, 526 U.S. 1025, 119 S.Ct. 1267 (1999).

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In this case, defense counsel was able to recall some of the unrecorded

objections, some were partially captured through a second open microphone, and this

court, in our review of the record, was able to ascertain the nature of some objections

by the context because the court reporter did note when these unrecorded conferences

took place. Moreover, defense counsel has not shown specific prejudice with regard

to relevant evidence. Accordingly, though the practice of requiring objections to be

made in bench conference has the potential for abuse, in this case, we find no

reversible error.

EXCLUSION OF EVIDENCE

Appellants contend that the trial court erred in excluding evidence of:

(1) Levi and Tasha Tingle’s drug use the evening before the accident; and

(2) the terms of the Gasquet release and settlement;

The trial court is vested with vast discretion in connection with the

admissibility of evidence. It will not be reversed absent an abuse of that discretion.

Maddox v. Omni Drilling Corp., 96-1673 (La.App. 3 Cir. 8/6/97); 698 So.2d 1022,

writ denied, 97-2766, 97-2627 (La. 1/30/98); 709 So.2d 706.

All relevant evidence is admissible, except as otherwise provided by the

Constitution of the United States, the Constitution of Louisiana, the Code of

Evidence, or other legislation. Evidence which is not relevant is not admissible.

La.Code Evid. art. 402. Evidence is relevant if it has any tendency to make the

existence of any fact that is of consequence to the determination of an action more

probable or less probable than it would be without the evidence. La.Code Evid. art.

401. “Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues,

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or misleading the jury, or by considerations of undue delay, or waste of time.”

La.Code Evid. art. 403.

Appellants contend the trial court erred in excluding evidence that the Tingles

used drugs the night before and in the early morning hours immediately before the

accident. The Tingles respond that the relevance of the evidence is outweighed by

its potential to prejudice the jury. Specifically, they argue that the Appellants

stipulated liability and did not argue comparative fault. Moreover, they contend the

Appellants point to no testimony where the alleged drug use would place the Tingles’

credibility at issue. Finally, they note that the Tingles dropped their bystander claims

and, therefore, their state of mind at the time of the accident was not at issue.

The trial court found the relevance of the evidence of the Tingles’ drug use was

outweighed by its potential to prejudice the jury. We find no abuse of discretion in

the trial court’s decision to exclude this evidence.

We next turn to the Appellants’ contention that the trial court erred in

excluding the terms of the Gasquet release and settlement.

Louisiana Code of Evidence Article 408(A) prohibits the admission of

evidence concerning compromise or offers to compromise a disputed claim “to prove

liability for or invalidity of the claim or its amount,” but does not prohibit evidence

that is otherwise admissible “merely because it is presented in the course of

compromise negotiations” or when “the evidence is offered for another purpose, such

as proving bias or prejudice of a witness, negativing a contention of undue delay, or

proving an effort to obstruct a criminal investigation or prosecution.” La.Code Evid.

art. 408(A). Louisiana Code of Evidence Article 413 provides that, “[a]ny amount

paid in settlement or by tender shall not be admitted into evidence unless the failure

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to make a settlement or tender is an issue in the case.” The comments made regarding

Article 413 in the “Handbook on Louisiana Evidence Law” state in part:

This Article was particularly designed to protect a plaintiff in a personal
injury suit from the introduction of evidence that would inform the jury
of the amount plaintiff received in settlement from other alleged
tortfeasors, or the amount received by other claimants in settlement of
their claims against the defendant, when the purpose of such evidence
is to minimize the value of plaintiff’s claim, or suggests that he has
already received adequate compensation.

George W. Pugh, Robert Force, Gerald A. Rault, Jr., and Kerry Triche, Handbook on

Louisiana Evidence Law, 410 (2008 ed.).

Appellants argue the trial court erred in excluding evidence of the Gasquet

release and settlement because the case involves exemplary damages. Specifically,

they contend the jury should have been informed that, because of the settlement, only

an insurer was liable for damages awarded. We are unpersuaded by this argument

and find no basis for an exception to La.Code Evid. arts. 408 and 413. The trial court

did not abuse its discretion in excluding evidence of the Gasquet release and

settlement.

PREJUDICIAL CLOSING ARGUMENT

Appellants contend the trial judge erred in allowing Plaintiffs’ counsel to

implore the jury to put themselves in the Plaintiffs’ shoes and to appeal to local

prejudice by emphasizing that the Defendant was an out-of-state trucker. We

disagree.

Appellants contend that Plaintiffs’ counsel violated the so called “golden rule”

by asking the jury to place itself in the Plaintiffs’ shoes with regard to damages. They

cite this court in Duerden v. PBR Offshore Marine Corp., 471 So.2d 1111 (La.App.

3 Cir. 1985), writ denied, 476 So.2d 355 (La.1985), which said:

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As the Court in Burrage v. Harrell, 537 F.2d 837 (5th Cir. 1976) said:

“Appellant asserts that the trial court erred in
overruling her objection to appellee’s alleged ‘golden rule’
closing argument. Appellant’s reliance on the ‘golden
rule’ cases is misplaced: they deal with arguments in
which the jury is exhorted to place itself in a party’s shoes
with respect to damages. See, e.g., Skaggs v. J.H. Rose
Truck Line, Inc., 435 F.2d 695 (5th Cir. 1970); Har-Pen
Truck Lines, Inc. v. Mills, 378 F.2d 705, 714 (5th Cir.
1967). The rationale for prohibiting such an argument is
that the jury’s sympathy will be unfairly aroused, resulting
in a disproportionate award of damages, e.g., id.; Baron
Tube Co. v. Transport Insurance Co., 365 F.2d 858, 862
(5th Cir. 1966).”

Likewise, Appellants contend that Plaintiffs’ counsel impermissibly attempted to

“home cook” the out-of-state Defendants in this case. They cite Boutte v. Winn-Dixie

Inc., 95-1123, p. 12 (La.App. 3 Cir. 4/17/1996), 674 So.2d 299, 306, in which this

court said: “Although a litigant is afforded some license in closing argument, here

Winn-Dixie, by deliberately resorting to local prejudice and unsupported generalities,

clearly crossed its bounds.”

In our view, neither Duerden nor Winn-Dixie should be viewed as establishing

a bright line test for proper closing argument. We prefer to allow the trial court

latitude to conduct a trial. In Streeter v. Sears, Roebuck & Co., 533 So.2d 54, 62-63

(La.App. 3 Cir. 1988), writ denied, 536 So.2d 1255 (La.1989), this court said:

In Bourque v. Gulf Marine Transp., Inc., 480 So.2d 337 (La.App.
3 Cir. 1985), this court summarized the law governing argument before
a civil jury as follows:

“The propriety of argument in a civil jury trial must be
determined in the factual light of the particular matter, the
conduct and atmosphere of that particular trial and the
arguments of opposing counsel. Luquette v. Bouillion, 184
So.2d 766 (La.App. 3rd Cir. 1966). Great latitude is
permitted in argument before a civil jury, subject to
regulation by the trial court whose duty is to confine
argument within proper bounds. Temple v. Liberty Mutual

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Insurance Company, 316 So.2d 783 (La.App. 1st
Cir.1975), reversed on other grounds, 330 So.2d 891
(La.1976); Luquette, supra. Unless the contrary is shown,
the trial court’s ruling regarding alleged improper
argument are presumed to have been made within the trial
court’s discretion. Luquette, supra.” Bourque v. Gulf
Marine Transp., Inc., 480 So.2d 337, at page 342 (La.App.
3 Cir. 1985).

In the instant case, the Appellants made several objections to Plaintiffs’

arguments which the trial court did not sustain. The trial court did not find the

argument particularly inflammatory, but nevertheless instructed the jury not to base

its award on emotion. We find no abuse of the trial court’s great discretion in

allowing the argument complained of in this case.

EXEMPLARY DAMAGES

Appellants contend that the trial court erred in finding that the Plaintiffs had

met their burden of proof for exemplary damages. Specifically, they argue that there

was insufficient evidence to establish that Montgomery was intoxicated or impaired

at the time of the accident. We disagree.

Until an appellate court determines that a fact-finder’s conclusions are “clearly

wrong” or “manifestly erroneous,” the court should not redetermine the facts de novo

from the record and render a judgment on the merits. Ferrell v. Fireman’s Fund Ins.

Co., 94-1252, p. 4 (La. 2/20/95), 650 So.2d 742, 745 (La.1995). Where two

permissible views of the evidence exist, the factfinder’s choice between them cannot

be “manifestly erroneous” or “clearly wrong.” Watson v. State Farm Fire and

Casualty Ins. Co., 469 So.2d 967, 972 (La.1985). When findings are based on

determinations regarding the credibility of witnesses, the manifest error-clearly wrong

standard demands great deference to the findings of the jury. Rosell v. ESCO, 549

So.2d 840, 844-45 (La.1989). Where a jury’s findings are based on its decision to

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credit the testimony of certain witnesses, the findings can virtually never be

manifestly erroneous or clearly wrong. Id. We are instructed that before a jury’s

verdict may be reversed, we must find from the record that a reasonable factual basis

does not exist for the verdict and that the record establishes that the verdict is

manifestly erroneous. Lewis v. State, 94-2370 (La. 4/21/95), 654 So.2d 311.

The jury awarded exemplary damages under La.Civ.Code art. 2315.4, and

Appellants argue the evidence did not support this award. To recover exemplary

damages, the Plaintiffs must prove, by a preponderance of the evidence, three

elements, including; (1) intoxication, (2) wanton and reckless disregard, and (3)

cause-in-fact between the intoxication and the damages. La.Civ.Code art. 2315.4.

While Appellants’ contention that the state trooper at the scene did not indicate

that Montgomery was impaired is true, that alone is not sufficient to disturb the jury

verdict. The jury also heard evidence regarding Montgomery’s urine tests as well as

evidence regarding his actions during the accident. After reviewing the record in its

entirety, we cannot say the jury’s decision to award exemplary damages was

manifestly erroneous.

EXCESSIVE DAMAGES

Appellants contend the jury abused its discretion and awarded excessive

damages for wrongful death, past, present, and future lost wages, and exemplary

damages.

The jury awarded Levi and Tasha Tingle each two million dollars

($2,000,000.00) in damages for their wrongful death claims. It is the appellants’

position that under the facts of this case, the award was an abuse of the jury’s

discretion and is excessive under Louisiana law. The law regarding appellate review

9

of damage awards provides that the discretion vested in the trier of fact is “great.”

Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510

U.S. 1114, 114 S.Ct. 1059 (1994).

Resorting to a comparison of prior awards is only appropriate after the
reviewing court has concluded that an abuse of discretion has occurred.
Thus, the initial inquiry for this court is whether the jury abused its
discretion in assessing the amount of damages. If the court concludes
that it has, then and only then may the prior awards be used for
determining the highest or lowest amount that was reasonably within
that discretion.

Cone v. Nat’l Emergency Serv., Inc., 99-934, p. 8 (La. 10/29/99), 747 So.2d 1085,

1089 (citations omitted).

We are mindful that the Tingles’ loss is great. Madison Tingle was the

Tingles’ only child. Tasha’s medical condition does not permit any more children.

Tasha Tingle was not able to attend Madison’s funeral due to injuries sustained in the

accident. The Tingles will never see their child grow up. Nevertheless, we find the

jury abused its discretion in awarding each parent two million dollars ($2,000,000.00)

in wrongful death damages. Accordingly, we have reviewed prior awards and find

that the highest amount reasonably within the jury’s discretion is $700,000.00 to each

parent. See Estate of Francis v. City of Rayne, 07-359 (La.App. 3 Cir. 10/03/07), 966

So.2d 1105, writ denied, 07-2119 (La. 2/15/08), 976 So.2d 176.

In 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, this court discussed the burden of proof

and standard of review for special damages. The court said:

The plaintiff bears the burden of proving entitlement to special damages
by a preponderance of the evidence. Hornsby v. Bayou Jack Logging,
03-1544 (La.App. 3 Cir. 5/5/04), 872 So.2d 1244. An award of special
damages is reviewed pursuant to the manifest error standard of review,
unlike a general damage award which is reviewed pursuant to the abuse
of discretion standard. Id. Thus, the “adequacy or inadequacy of the

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award should be determined by the facts or circumstances of the case
under consideration.” Id. at 1248.

Id. at 1131.

Accordingly, we must first determine whether the jury was manifestly

erroneous in awarding Tasha Tingle $300,000.00 in future lost wages/loss of earning

capacity. We have reviewed the record and find the jury was presented with medical

evidence of Tasha’s continuing disability as well as testimony regarding Tasha

Tingle’s past wage rate of $7.00 per hour. The record also indicates that Tasha was

twenty-five years old and had a work-life expectancy of forty-two years. We find no

manifest error in the jury’s award of $300,000.00 in past, present, and future lost

wages.

Turning to the issue of excessiveness of the exemplary damage award, we note

this court in Leary v. State Farm Mut. Auto. Ins. Co., 07-1184, p. 10 (La.App. 3 Cir.

3/5/08), 978 So.2d 1094, 1101-2, writ denied, 08-727 (La. 5/30/08), 983 So.2d 900,

said in pertinent part:

Exemplary damages are given to plaintiffs over and above the full
compensation for their injuries for the purposes of punishing the
defendant, of instructing him not to repeat the offensive action, and of
deterring others from following the defendant’s conduct. Mosing v.
Domas, 02-12 (La.10/15/02), 830 So.2d 967. “As with the review of a
general damage award, the role of an appellate court in reviewing an
award of exemplary damages is not to decide what it considers to be an
appropriate award, but rather to review the exercise of discretion by the
trier of fact.” Id. at 979.

Again, Dobison’s primary argument is that in comparison with the
exemplary damages awarded in other, similar, cases the award in this
case is excessive. But our supreme court has specifically said that when
considering whether an award is excessive, the reviewing court is not to
compare the exemplary damages with awards from other cases. Id.
Instead, our supreme court has set out four criteria to be used in
determining whether the finder of fact has abused its discretion in
setting an award of exemplary damages: (1) the degree of
reprehensibility of the defendant’s conduct; (2) the disparity between the

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harm suffered by the plaintiffs and the exemplary damages awarded; (3)
the difference between the exemplary damages awarded and the civil or
criminal penalties authorized or imposed in comparable cases; and (4)
the defendant’s economic wealth. Id.

In this case, the conduct is clearly reprehensible. Boots Smith hired

Montgomery and allowed him to drive trucks without making basic inquiries about

his driving record and prior drug use. Montgomery drove his massive tractor trailer

rig while under the influence of drugs. The award is fully justified.

In Mosing v. Domas, 02-12 (La. 10/15/02), 830 So.2d 967, our supreme court

approved a ratio of compensatory to exemplary damages that was 1 to 9. The Tingles,

through settlement and our ruling today, were awarded approximately two and one-

half million dollars ($2,500,000.00) in compensatory damages and five million

dollars ($5,000,000.00) in exemplary damages, a ratio of almost 1 to 2. This ratio is

appropriate in this case because there is greater potential harm that could have

resulted from Booth Smith and Montgomery’s conduct. Specifically, both Tasha and

Levi could have also died as a result of Boots Smith and Montgomery’s conduct.

A comparison of the exemplary damages awarded and the possible criminal or

civil penalties that could have been imposed reveals a sizable discrepancy. In this

case, Montgomery could have been charged with driving under the influence or

vehicular homicide. Either offense, could result in a term of imprisonment; therefore,

the fact that the monetary difference is large is not particularly persuasive. See

Mosing, 830 So.2d 967.

Finally, we find the Defendants to have adequate economic wealth. After

reviewing these factors and the record as a whole, we conclude that the jury did not

abuse its discretion in making this award.

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Appellants also contend that the trial court’s award is excessive under the Due

Process Clause of the 14th Amendment to the United States Constitution, and,

therefore, this court’s review should be de novo. However, we find they failed to

raise this constitutional issue in the trial court, and therefore, it is waived. Id.

The appellants object to the trial court’s failure to calculate legal interest in its

judgment. We find no merit in this assignment.

Finally, Appellants contend that the trial court erred in allowing the Plaintiffs

to amend their pleadings to include the claim for exemplary damages. We note that

in a previous writ application to this court, Appellants made this same argument with

regard to Plaintiffs’ other claims and specifically mentioned that they were aware that

an exemplary damage claim was looming. We found no merit to their writ

application, and we find no merit to this assignment.

DECREE

For the foregoing reasons, the judgment of the trial court is amended to reduce

the wrongful death awards of Tasha and Levi Tingle from $2,000,000.00 each to

$700,000.00 each. In all other respects the judgment of the trial court is affirmed.

All costs of these proceedings are taxed to appellant, Colony National Insurance

Company.

AFFIRMED AS AMENDED.

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