Carolann Downing v. John Miller

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-387

CAROLANN DOWNING

VERSUS

JOHN MILLER, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-2008-5846
HONORABLE MARILYN CARR CASTLE, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Elizabeth A. Pickett, Judges.

AFFIRMED.

Timothy A. Maragos
Caffery Plaza, Suite 100
4023 Ambassador Caffery Pkwy
Lafayette, LA 70503
(337) 988-7240
Counsel for Defendants/Appellees:
State Farm Mutual Automobile Insurance Co.
John Miller
Shondrika Monique Miller

John M. Jefcoat
Galloway & Jefcoat, L.L.P.
P. O. Box 61550
Lafayette, LA 70596-1550
(337) 984-8020
Counsel for Plaintiff Appellant:
Carolann Downing

PICKETT, Judge.

Plaintiff appeals the trial court’s general damage award, urging that the

exacerbation of her bipolar anxiety disorder and obsessive compulsive disorder she

suffered as a result of the accident at issue warrants a higher award. For the reasons

discussed below, we affirm the award.

FACTS

On October 15, 2007, Carolann Downing was involved in an automobile

accident with John Miller. Ms. Downing sued Mr. Miller and his insurer, State Farm

Mutual Automobile Insurance Company (State Farm), seeking general and special

damages for injuries she suffered in the accident. The matter was tried on December

4, 2009. At trial, Mr. Miller and State Farm stipulated that Mr. Miller was liable for

Ms. Downing’s claims, and the only issue presented to the trial court for

consideration was damages. Ms. Downing testified at trial, and the deposition of her

treating physician, Dr. Bob Winston, was introduced into evidence.

Ms. Downing testified that the accident occurred on Congress Street in

Lafayette near its intersection with Bertrand Drive. She explained that she was

driving west on Congress Street when Mr. Miller was exiting a restaurant and struck

her vehicle. Ms. Downing related that she did not suffer any physical injuries but did

experience an exacerbation of symptoms associated with her bipolar anxiety and

obsessive compulsive disorders.

According to Ms. Downing, she first experienced mania then depression after

the accident. She explained that she initially suffered loss of sleep, loss of appetite,

racing thoughts, nervousness, agitation, and anger. Then, after experiencing what she

described as a “crash and burn,” she became depressed and was unable to care for her

personal needs–she did not shop for herself, she stayed in bed and slept a lot, she had

no appetite. During examination by defense counsel, Ms. Downing acknowledged

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that during her life she had “periods of ups and downs” and that the five-month

period beginning with the accident was one of those periods.

Dr. Winston confirmed Ms. Downing’s testimony that the accident exacerbated

her mental disorders. He testified that Ms. Downing had been in his care for four or

five years when the accident occurred, explaining that he initially began treating her

in early 2005 for bipolar disorder/manic depressive illness and treated her

continuously thereafter. He later diagnosed her as suffering from obsessive

compulsive disorder. According to Dr. Winston, Ms. Downing reported the accident

and that she was feeling “racey” to his nurse practitioner during an office visit on

October 23, 2007. Ms. Downing also reported that her sleep was improving and that

her appetite was okay, but she was nervous about a visit with her son. The nurse

practitioner noted that Ms. Downing was well groomed and cooperated. She was

very anxious, spoke very rapidly, moved quickly, and changed her mind frequently

during that visit. The nurse practitioner also noted that Ms. Downing’s thought

process was tangential, but she had no hallucinations or delusions; she was not

suicidal. The nurse practitioner resumed Ms. Downing’s obsessive compulsive

disorder medication and continued her antidepressant medication.

Dr. Winston testified that Ms. Downing continued to deteriorate. During a

later office visit, Ms. Downing was more symptomatic than during her prior visit: she

was cooperative but guarded, more suspicious and paranoid, scattered, disheveled,

and anxious; her thought process was disorganized; and her judgment was impaired.

Additionally, Ms. Downing changed her medication without consulting Dr. Winston.

A change in the medication prescribed for her depression improved her compliance

with taking the medication, which led to improvement in her overall condition.

During her March 2008 visit, Ms. Downing was well groomed, cooperative,

calm with some anxiety, had normal speech and flat affect, and her speech was

circumstantial, i.e., her speech was organized but she talked a lot. Additionally, she

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was not hallucinating or suicidal, and while she was still depressed, her mood was

improving. Dr. Winston testified that Ms. Downing was stabilizing as of her March

visit.

Ms. Downing’s next visit with Dr. Winston was on April 1, 2008. At that visit,

she reported much stress in her life due to an aunt passing away; she was again

suspicious and more obsessive.

Dr. Winston testified that Ms. Downing is “fragile” and that stressors in her life

can trigger an exacerbation of her bipolar anxiety disorder and her obsessive

compulsive disorder because “she has a hard time dealing with trauma, stress,

anything that goes wrong in her life.” He opined that the accident caused an

exacerbation of her pre-existing bipolar anxiety disorder and obsessive compulsive

disorder that lasted from the date of the accident until early March 2008 when her

overall situation was improving.

Ms. Downing agreed with Dr. Winston’s assessment that the accident resulted

in an exacerbation of her disorders for a period of approximately five months. She

appeals the trial court’s damage award, asserting that it is insufficient to compensate

her for her injuries.

DISCUSSION

In Guillory v. Lee, 09-75, p. 14 (La. 6/26/09), 16 So.3d 1104, 1116, the

supreme court reiterated that pursuant to La.Civ.Code art. 2324.1, the trial court has

“great discretion” in assessing damages and that the assessment of damages is “a

determination of fact . . . entitled to great deference on review. Wainwright v.

Fontenot, 00-492, p. 6 (La. 10/17/00), 774 So.2d 70, 74.” Consequently, an appellate

court can only disturb an award of damages if the record “clearly reveal[s] that the

trier of fact abused its discretion in making its award.” Wainwright, 774 So.2d at 74

(quoting Coco v. Winston Indus., Inc., 341 So.2d 332, 335 (La.1976)).

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In awarding damages, the trial court noted that it was undisputed that

Ms. Downing suffered an “aggravation of her mental disorders” as a result of the

accident and that the aggravation lasted five months and was not “extremely severe.”

It then determined that $1500 per month for the five-month aggravation was an

appropriate damage award for Ms. Downing’s injuries.

Ms. Downing urges that the trial court’s award of $7500 was clearly wrong and

asks that the award be increased. She prefaces her argument with the well-settled

tenet that “a tortfeasor takes his victim as he finds him and when a defendant’s

tortious conduct aggravates a pre-existing condition, the defendant must compensate

the victim for the full extent of the aggravation. Lasha v. Olin Corp., 625 So.2d

1002, 1005-1006 (La.1993).” Guillory, 16 So.3d at 1124.

As noted above, the trial court clearly recognized that Ms. Downing’s mental

disorder was aggravated by the accident. However, the trial court also recognized

that the aggravation lasted for only five months and was similar to other aggravations

triggered by ordinary events in Ms. Downing’s life. For example, in her April 1,

2008 visit with Dr. Winston’s nurse practitioner, Ms. Downing related that her aunt

had passed away and that there was much stress in her life due to her aunt’s death.

The notes from that visit indicate that Ms. Downing was suspicious and more

obsessive than on her previous visit and that her mental condition on that visit was

similar to her mental condition shortly after the accident. Additionally, on October

23, 2007, her first visit after the accident, Dr. Winston’s nurse practitioner noted that,

in addition to being anxious, speaking very rapidly, and changing her mind frequently

that day, Ms. Downing was nervous about “her son’s visit.” Accordingly, the trial

court’s determination that the aggravation caused by the accident was similar to

aggravations caused by ordinary events in Ms. Downing’s life is supported by the

record. Under these facts, we cannot say that the trial court’s award of $7,500 in

damages was an abuse of discretion.

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Ms. Downing cites three cases as examples of prior damage awards that would

be appropriate herein. Our determination that the trial court did not abuse its

discretion in awarding $7500 in general damages, however, precludes consideration

of prior damage awards. Youn v. Mar. Overseas Corp., 623 So.2d 1257 (La.1993),

cert. denied, 510 U.S. 1114, 114 S.Ct. 1059 (1994).

Disposition

The judgment of the trial court is affirmed. All costs are assessed to Carolann

Downing.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules-Courts of Appeal. Rule 2-16.3.

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