Terrance D. Andrus v. Accc Ins. Co.

DO NOT PUBLISH

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
10-1309

TERRENCE D. ANDRUS

VERSUS

ACCC INSURANCE COMPANY, ET AL.

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 09-C5175-A
HONORABLE JAMES P. DOHERTY, JR., DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Billy Howard Ezell, J. David Painter, and James T. Genovese,
Judges.

AFFIRMED.

Genovese, J., dissents.

Sherman Stanford
P.O. Box 1237
Opelousas, LA
Counsel for Plaintiffs/Appellants:
Terrence D. Andrus and Joseph J. Davis

Michael J. Breaux
P.O. Box 51106
Lafayette, LA 70505
Counsel for Defendants/Appellees:
Jeri Ceasor and ACCC Insurance Co.

PAINTER, Judge.

Plaintiffs, Terrence D. Andrus and Joseph J. Davis, appeal the quantum of

general damages awarded by the trial court for injuries received in a rear-end

collision. For the following reasons, we affirm.

FACTS

On March 12, 2009, Andrus was driving west on La.Hwy 167 in St. Landry

Parish with Davis as a passenger. Jeri Ceasor was also driving west on La.Hwy 167

and hit Andrus’ vehicle from the rear. Plaintiffs filed this suit for damages for

injuries received in the accident.

After a trial on the merits, the trial court found Ceasor to be one-hundred

percent at fault in the accident and awarded Plaintiffs general damages in the amount

of $1,500.00 each. The court further awarded Andrus $3,674.94 in medical special

damages and Davis $3,262.94 in medical special damages. Plaintiffs appeal the

general damage award as inadequate.

DISCUSSION

Plaintiffs argue that $1,500.00 each is an inadequate award for soft tissue back

injuries which required three months of treatment.

The standard of review for quantum of damages is well established.

In Reck v. Stevens, 373 So.2d 498 (La.1979), this Court
commented on appellate review of general damage awards and on the
“much discretion” in fixing damages accorded to trial courts by
La.Civ.Code art. 1934(3)(1870). The decision pointed out that the role
of an appellate court in reviewing general 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. Each case is different, and the adequacy
or inadequacy of the award should be determined by the facts or
circumstances particular to the case under consideration.

In Reck, this court disapproved the appellate court’s simply
reviewing the medical evidence and then concluding that the award for

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those injuries was excessive, without taking into consideration the
particular effect of the particular injuries on the particular plaintiff. This
court further disapproved of the use of a scale of prior awards in cases
with generically similar medical injuries to determine whether the
particular trier of fact abused its discretion in the awards to the particular
plaintiff under the facts and circumstances peculiar to the particular
case. The 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. Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963); Ballard
v. National Indem. Co. of Omaha, Neb., 246 La. 963, 169 So.2d 64
(1964); Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127 (1967).
Only after such a determination of an abuse of discretion is a resort to
prior awards appropriate and then for the purpose of determining the
highest or lowest point which is reasonably within that discretion. Coco
v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Bitoun v. Landry,
302 So.2d 278 (La.1974); Spillers v. Montgomery Ward & Co., 294
So.2d 803 (La.1974).

The standard for appellate review of general damage awards is
difficult to express and is necessarily non-specific, and the requirement
of an articulated basis for disturbing such awards gives little guidance
as to what articulation suffices to justify modification of a generous or
stingy award. Nevertheless, the theme that emerges from Gaspard v.
LeMaire, 245 La. 239, 158 So.2d 149 (1963) through Coco v. Winston
Industries, Inc., 341 So.2d 332 (La.1976), and through Reck to the
present case is 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. Reasonable persons frequently disagree about the
measure of general damages in a particular case. It is only when the
award is, in either direction, beyond that which a reasonable trier of fact
could assess for the effects of the particular injury to the particular
plaintiff under the particular circumstances that the appellate court
should increase or reduce the award.

Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260-61 (La.1993) (footnote
omitted).

The evidence of record shows that the damage to the Andrus vehicle was

minor. The investigating officer described it as scratches and paint damage and stated

that the bumper was not deformed. He further testified that Defendant’s vehicle had

very minor damage to the front end without any structural deformity and that none of

the parties reported any injury to him.

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Andrus stated that his back started hurting a few days after the accident and

that, as a result, he went to the emergency room at Opelousas General Hospital.

Medication was prescribed for him. The emergency room record shows that he

reported his pain as being mild at that time. He further testified that he sought

treatment from a chiropractor and that his condition improved gradually over the

three months of treatment. He stated that for the first month he could not do much

of anything because of pain, could not play sports, and could not do any lifting. On

cross-examination, Andrus admitted describing the impact between the vehicles as

a little jerk and admitted that the impact between the vehicles was minor. He stated

that he received a check from ACCC Insurance for $260.00, representing property

damage to the bumper of his car. He further admitted that he had fractured some ribs

about a year prior to the accident and had been seen by Dr. Calvin White for low back

pain during the three months prior the accident.

In his testimony, Davis described the impact between the vehicles as a little

jerk and stated that “It wasn’t nothing big.” He stated that he did not feel anything

until a couple of days later when he went to the emergency room where he was

prescribed medication. He also sought chiropractic treatment over a period of three

months for tightness in his low back. He stated that his activity was not restricted and

that the pain gradually resolved over the three months of treatment. On cross-

examination, he admitted that the pain was intermittent and never more than tightness

in his low back.

The records from the treating chiropractor show three visits in March 2009,

nine in April, and three in May for both Plaintiffs.

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In light of the circumstances of this particular case, we cannot say that an

award of $1,500.00 in general damages to each of the Plaintiffs falls below “that

which a reasonable trier of fact could assess for the effects of the particular injury to

the particular plaintiff under the particular circumstances.” Id. at 1261.

CONCLUSION

Therefore, the judgment of the trial court is affirmed. Costs of this appeal are

assessed to Plaintiffs/Appellants.

AFFIRMED.

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