Marie Monte v. State Farm Mutual Automobile Ins. Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-979

MARIA MONTE, ET AL.

VERSUS

STATE FARM MUTUAL AUTOMOBILE INS. CO., ET AL.

**********
APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, DOCKET NO. 91883-G
HONORABLE DURWOOD W. CONQUE, DISTRICT JUDGE
**********

SYLVIA R. COOKS
JUDGE

**********

Court composed of Sylvia R. Cooks, John D. Saunders, and Elizabeth A. Pickett,
Judges.

AFFIRMED IN PART; REVERSED IN PART; AND AMENDED.

Kevin S. Frederick
James P. Doherty, III
1025 Coolidge Blvd.
P.O. Box 52880
Lafayette, LA 70505
(337) 269-5143
ATTORNEYS FOR PLAINTIFFS/APPELLANTS
Maria Monte, Glenn Monte and Amanda Monte

Terry Rowe
Rowe & Middleton
P.O. Box 3323
Lafayette, LA 70502
(337) 232-4474
ATTORNEY FOR DEFENDANTS/APPELLEES
Brent M. Turner and State Farm Mutual Automobile Ins. Co.

Louis C. Lacour, Jr.
Adams & Reese, L.L.P.
710 Poydras Street, Suite 4500
New Orleans, LA 70139
(504) 581-3234
ATTORNEY FOR DEFENDANTS/APPELLEES
Ray Chevrolet-Olds, Inc., John B. Love, and Granite State Insurance Company

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COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

This personal injury lawsuit arises out of a May 5, 2009 automobile accident

that occurred on Highway 167 South between Maurice and Abbeville. On that

date, Plaintiff, Maria Monte, who was the manager of a Burger King restaurant in

Abbeville, was picking up supplies for her restaurant.

Mrs. Monte was driving her Chevrolet Trail Blazer in a southerly direction

in the right lane of Hwy. 167, with her cruise control set at 55 MPH. Behind Mrs.

Monte, in the same lane of Hwy. 167 was John Love, in his Chevrolet Silverado

pickup truck. As Mrs. Monte approached a median crossover, Mr. Love attempted

to pass her in the left, passing lane. At the same time, stopped in the median

crossover, was a vehicle driven by Brent Turner, who had been driving north on

Hwy. 167 in the opposite direction.

Apparently, Mr. Turner accidently placed his foot on both the brake pedal

and accelerator, causing his vehicle to creep into the southbound, right lane of

Hwy. 167. At this time, Mr. Love, who had begun passing Mrs. Monte in that lane

of travel, saw Mr. Turner’s vehicle entering the lane and realized he would not be

able to continue in that lane. In response to this, Mr. Love abruptly switched into

the southerly, right lane of travel. Upon switching lanes, Mr. Love stated the right

tires of his vehicle encroached onto the shoulder of the highway. Mr. Love then

applied his brakes and moved his truck fully back onto the right lane of travel.

Upon fully re-entering the right lane, Mr. Love immediately applied his brakes and

then attempted to accelerate his vehicle. At this moment, Mrs. Monte’s vehicle

crashed into the rear of Mr. Love’s truck.

Mrs. Monte testified, upon seeing Mr. Love’s swerve his vehicle into her

lane of travel and onto the shoulder, she hit her brakes to disengage her cruise

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control. However, she was unable to stop before colliding with the rear of Mr.

Love’s vehicle.

There was a dispute as to whether Mrs. Monte’s vehicle struck Mr. Love’s

vehicle twice. Mrs. Monte denied she struck Mr. Love’s vehicle twice. Mr. Love

testified that Mrs. Monte’s SUV initially struck his vehicle immediately after he

reestablished his vehicle fully in the right lane of Hwy 167, just as he was

beginning to accelerate after having avoided the hazard created by Mr. Turner’s

vehicle creeping into the left lane of travel. Mr. Love further stated he came to a

stop only after and because Mrs. Monte initially rear-ended him; and after he

stopped, Mrs. Monte’s vehicle struck his truck a second time.

As a result of the accident, Mrs. Monte suffered a herniated disc in her neck.

She underwent extensive treatment and eventually had an interior cervical

discectomy and fusion on February 11, 2010. Two years later, after enduring

severe, constant pain, she underwent a four level cervical decompression and

fusion on May 21, 2012.

Mrs. Monte filed a suit for the damages she endured as a result of the

accident. Also joining the suit were her husband, Glenn Monte, and her daughter,

Amanda Monte, who sought damages for their loss of consortium. Named as

defendants were John Love, Ray Chevrolet-Olds, Inc., Mr. Love’s employer, and

the general and excess liability insurers of Ray Chevrolet-Olds. At the time of the

accident, Mr. Love was in the course and scope of his employment, thus triggering

Ray Chevrolet-Old’s vicarious liability. Also named as defendants were Brent

Turner and State Farm, the liability insurer of Mr. Turner’s vehicle.

The matter was tried by a jury on April 8-11, 2013. The jury returned a

verdict finding Brian Turner 90% at fault, Maria Monte 10% at fault and John

Love free from fault. Maria Monte was awarded special damages of $300,000.00

and general damages of $200,000.00. No awards for loss of consortium were

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made to Glenn Monte or Amanda Monte. A judgment reflecting the jury’s verdict

was executed and made final. Maria, Glenn and Amanda Monte appealed the

judgment, asserting the following assignments of error:

(1) During jury selection, the trial court erred in overturning the
challenge for cause of a juror;

(2) The trial judge failed to instruct the jury on the relevant case law
interpreting application of the relevant statutes from the Louisiana
Highway Regulatory Act;

(3) The jury erred in assigning no fault to John Love;

(4) While instructing the jury, the trial judge failed to explain the
elements of general damages to the jury;

(5) When drafting the jury verdict form, the trial court failed to divide
any of the elements of general damages;

(6) When drafting the jury verdict form, the trial court failed to divide
any of the elements of special damages;

(7) The jury erred in only awarding $300,000.00 in special damages;

(8) The jury erred in only awarding $200,000.00 in general damages;

(9) The jury erred in failing to award loss of consortium awards to
Glenn and Amanda Monte;

Brent Turner, and his insurer, State Farm, have answered the appeal and

assert the trial court erred in its apportionment of fault. They contend the jury

erred in assessing 90% fault on Mr. Turner, in not assessing some portion of fault

to Mr. Love and assessing only 10% fault to Mrs. Monte.

ANALYSIS

I. Jury Selection.

In its first assignment of error, plaintiffs contend the trial court abused its

discretion in refusing challenge for cause as to potential juror, Frank deGraauw, Jr.

Plaintiffs note that during the jury selection process, Mr. deGraauw, acknowledged

a personal relationship with the owners of Ray Chevrolet Olds, and stated at one

point it would be “difficult” to do his duty as a juror. Mr. deGraauw also

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acknowledged he had been sued on the basis of vicarious liability as the owner of a

company, the same position as Ray-Chevrolet Olds. Plaintiffs asked the trial court

to excuse Mr. deGraauw for cause. The trial court denied the challenge for cause,

and the plaintiffs then used one of their peremptory challenges on Mr. deGraauw to

exclude him from the jury.

Plaintiffs note a juror may be challenged for cause “when the juror has

formed an opinion in the case or is not otherwise impartial, the cause of his bias

being immaterial,” or when the relations by blood, marriage, employment,

friendship, or enmity between the juror and any party or his attorney are such that

it must be reasonably believed that they would influence the juror in coming to a

verdict.” La.Code Civ.P. art. 1765(2) and (3).

In Raymond v. Government Employees Ins. Co., 09-1327, p. 3 (La.App. 3

Cir. 6/2/10), 40 So.3d 1179, 1184, this court discussed the appellate review for

denials of challenges for cause:

A trial court has great discretion in ruling on challenges for
cause and the appellate court should not disturb its ruling unless the
voir dire as a whole indicates an abuse of discretion. Bannerman v.
Bishop, 28,382 (La.App. 2 Cir. 7/2/96), 688 So.2d 570, writ denied,
96-2755 (La. 1/10/97), 685 So.2d 146. A prospective juror’s
friendship, acquaintance, or previous employment of an attorney on
an unrelated matter does not necessitate the granting of a challenge for
cause if the juror makes it clear that such a relationship would not
affect his or her verdict. In re Medical Review Panel on Behalf of
Laurent, 94-1661 (La.App. 1 Cir. 6/23/95), 657 So.2d 713.

While plaintiffs correctly note Mr. deGraauw expressed some trepidation that he

might have “difficulty” applying the law to his friends in this case, he did state he

would do his duty if he were selected for the jury. The trial court questioned Mr.

deGraauw about any possible “difficulty” he might have:

THE COURT: Okay. All right. So you’re going to have some
difficulty with it?

MR. DEGRAAUW: Well, it would be difficult.

THE COURT: You would rather not?

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MR. DEGRAAUW: I would rather not.

THE COURT: But if it’s your duty?

MR. DEGRAAUW: If it’s my duty, I would do it.

The trial court, aware that Mr. deGraauw acknowledged a friendship with one of

the defendants, after further examination believed Mr. deGraauw would have been

a fair juror. As to plaintiffs argument that Mr. deGraauw would have difficulty

applying the law of vicarious liability due to his ownership of companies that had

been sued in the past, it was revealed in further examination that Mr. deGraauw

had worked for insurance companies and rehabilitation specialists in the past. In

that capacity, Mr. deGraauw explained he had, on numerous occasions, worked on

behalf of plaintiffs in personal injury cases.

Considering the broad discretion given to the trial judge in determining

challenges for cause, we cannot say that the trial court abused that discretion in

refusing the challenge for cause as to Mr. deGraauw. We also note that Mr.

deGraauw was not a member of the jury, as plaintiffs used a peremptory challenge

to excuse him. There has been no argument made by plaintiffs that they would

have challenged another juror that was seated on the jury. Accordingly, we find no

merit to this assignment of error.

II. Jury Instructions on Statutes Governing Liability.

In their second assignment of error, plaintiffs contend the trial court

inadequately explained the law governing the issue of liability in this case.

Specifically, plaintiffs argue “while instructing the jury on the duties of the parties,

the trial judge failed to provide any instruction from the cases interpreting the

statutes. Rather, he simply read the statutes from the Louisiana Highway

Regulatory Act.”

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Trial courts are required to “instruct jurors on the law applicable to the cause

submitted to them.” La.Code Civ.P. art. 1792(B). Adequate jury instructions

“fairly and reasonably point out the issues and ... provide correct principles of law

for the jury to apply to those issues.” Adams v. Rhodia, Inc., 07-2110, p. 6 (La.

5/21/08), 983 So.2d 798, 804. “If the trial court omits an applicable, essential legal

principle, its instruction does not adequately set forth the issues to be decided by

the jury and may constitute reversible error.” Id. Louisiana jurisprudence is well

established that appellate courts must exercise great restraint before reversing a

jury verdict because of erroneous jury instructions. Id. Trial courts are given

broad discretion in formulating jury instructions and a trial court judgment should

not be reversed so long as the charge correctly states the substance of the law. Id.

A reading of the record shows the trial judge reviewed, in detail, the

statutory law that governed liability in this case to the jury. He noted his

preference to read the statutes to the jury rather than read from cases which might

have substantially different facts. We find no reversible error in the jury

instructions made by the trial court in this case on the liability issues before the

jury.

III. Jury’s Finding of No Fault on Part of John Love.

Next, plaintiffs argue the jury manifestly erred in finding Mr. Love free from

fault in causing the accident. Plaintiffs contend the facts at trial established Brent

Turner came to a full stop in the median crossover; thus Mr. Love was not required

to abruptly switch lanes to avoid hitting Mr. Turner’s vehicle. This, of course, is

contrary to the version of facts presented by Mr. Love, who testified Mr. Turner’s

vehicle slowly moved into his lane of travel presenting him with a sudden

emergency situation, requiring him to swerve quickly into the other lane to avoid

hitting Mr. Turner’s vehicle. Essentially, plaintiffs ask this court to accept the

version of facts presented by Mr. Turner over the version of facts supplied by Mr.

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Love. The jury obviously chose to accept Mr. Love’s version, and we cannot find

such a decision to be manifestly erroneous unless we find the credibility and

factual determinations of the jury to be unreasonable. After a thorough review of

the record, we find the jury’s fact and credibility determinations to be reasonable.

Of particular note, the jury heard the testimony of Maria Monte, who was

asked to read her written statement made just shortly after the accident. That

statement read as follows:

Heading south on 167 on the right side of highway. Cruise was
set on 55. A white Silverado was on the left side. They had a silver
vehicle crossing the median. Looked like he was not going to stop.
So to avoid the accident, white Silverado swerved to miss it but cut
across the highway. I then hit him from the back. Tried to avoid, but
still hit him.

There was some questioning of Mrs. Monte by counsel for Mr. Turner at

trial that much of this statement was what was told to her by Mr. Love. It was also

brought out at trial that this version of events, which Mrs. Monte gave to law

enforcement, was the same as that alleged in her petition. Certainly, this

corroboration of Mr. Love’s testimony may well have influenced the jury’s

ultimate conclusion that Mr. Love’s actions were prompted by the sudden

emergency created by Mr. Turner’s vehicle.

Mr. Love argued to the jury that the “sudden emergency doctrine” insulated

him from liability under the facts of this case. Our Louisiana Supreme Court, in

Hickman v. Southern Pacific Transport Co., 262 La. 102, 112-13, 262 So.2d 385,

389 (1972), discussed the sudden emergency doctrine:

One who suddenly finds himself in a position of imminent peril,
without sufficient time to consider and weigh all the circumstances or
best means that may be adopted to avoid an impending danger, is not
guilty of negligence if he fails to adopt what subsequently and upon
reflection may appear to have been a better method, unless the
emergency in which he finds himself is brought about by his own
negligence.

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Thus, accepting the version of facts offered by Mr. Love and corroborated by Ms.

Monte’s written statement and petition, the jury was reasonable in finding Mr.

Love free from fault.

We also find no merit to Mr. Turner and State Farm’s argument that the trial

court erred in its assessment of fault. Accepting the version of facts that Mr.

Turner’s vehicle came into Mr. Love’s lane, which was reasonable on the jury’s

part, we cannot say there was any manifest error in assessing Mr. Turner with 90%

fault. We also find no merit in the argument that the jury erred in only assessing

10% fault to Mrs. Monte. She was presented with the same sudden emergency that

Mr. Love was due to the actions of Mr. Turner. We note the jury easily could have

determined that Mrs. Monte was not at fault in causing the accident, for the same

reasons it found relating to Mr. Love. However, it chose to cast her 10% at fault,

and we certainly find nothing in the record to support raising that figure to a higher

percentage.

IV. Jury’s Instruction on Elements of General Damages.

In its fourth, fifth and sixth assignments of error, plaintiffs argue the trial

judge committed reversible, legal error when he failed to instruct the jury on the

elements of general damages and provided the jury with a verdict form that did not

separate the elements of special and general damages.

In his final instructions to the jury, the trial judge addressed the subject of

general damages as follows:

General damages is the other kind of damages. If you find for
the plaintiff and you do award special damages, you must also at least
consider an award for general damages. What that means is you can’t
say, well, we’re just going to – we’re just going to give medical and
lost income. We’re not even going to look at anything else, or we’re
just going to give medical and lost income. You have to at least
consider the damages I’m going to tell you. You don’t have to give
them, but you must at least consider them.

So these are damages that can’t be documented exactly. They
can’t be calculated mathematically. . . . So, while it may not be

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possible to establish the exact amount of general damages, the
plaintiff must still prove by the weight of the evidence that the
damages claimed were actually sustained or will be sustained in the
future. You must not award damages that are merely speculative,
those that you think might have been suffered or might be suffered in
the future.

Since the amount of these damages cannot be supported by
exact evidence, like an invoice, you simply have to determine them by
applying your experiences in life, your sound discretion, and your
common sense.

The verdict form submitted to the jury included a provision for the

specification of damages and provided the following heading: “What amount if

any, in dollars and cents, will compensate the plaintiff for her injuries?” The

verdict form then provided a blank for both special and general damages. After the

term “Special Damages” a brief description of that type of damages was included

in parentheses and provided: “(such as medical expenses past and future, loss of

income, loss of future earning capacity).” Following the term “General Damages”

on the jury verdict form was a similar description and provided: “(such as physical

pain and suffering past and future, mental or emotional pain and suffering past and

future, disability, disfigurement, loss of enjoyment of life).”

Plaintiffs maintain the instructions provided on the elements of damages

“caused the jury’s confusion and the erroneous awards.” They further assert the

“jury’s confusion is obvious.” In particular, plaintiffs take issue with the trial

court’s “refusal to instruct the jury on loss of enjoyment of life as requested by the

[plaintiffs].” They maintain loss of enjoyment of life is separate from other

general damages and cite the Louisiana Supreme Court case of McGee v. A C And

S, Inc., 05-1036 (La. 7/10/06), 933 So.2d 770. Plaintiffs misinterpret the supreme

court’s holding in McGee. That case held “loss of enjoyment of life is recoverable

as a separate element of general damages that may be included as a separate item

on a jury verdict form.” Id. at 770. It did not require, as plaintiffs infer, that loss

of enjoyment of life be listed as a separate item on the jury verdict form. Loss of

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enjoyment of life was listed as an example of a type of general damages on the jury

verdict form in this case.

Despite plaintiffs’ arguments attacking the jury verdict form in this case,

they have cited no statutory or jurisprudential support for their claim that the trial

judge erred in not listing, individually, the separate elements of damages in this

case. Louisiana Code of Civil Procedure Article 1812(C)(4) specifies what is to

be included on a jury verdict form in a suit for personal injuries:

(C) In cases to recover damages for injury, death, or loss, the court at
the request of any party shall submit to the jury special written
questions inquiring as to:

....

(4) The total amount of special damages and the total amount of
general damages sustained as a result of the injury, death, or loss,
expressed in dollars, and, if appropriate, the total amount of
exemplary damages to be awarded.

While the setting forth of the individual elements of damage awards on the

verdict form by the jury might well be helpful to a general understanding of how

and why the jury awarded what it did and certainly would assist this court’s duty to

review such awards, it simply is not legally required. The verdict form in this case

included the required listing for the quantification of special and general damages,

which complies with the requirements of La.Code Civ.P. art 1812(C)(4). Thus,

these assignments of error have no merit.

V. Jury’s Award of Special Damages.

By this assignment of error, plaintiffs contend the jury’s special damage

award of $300,000.00 to Maria Monte was inadequate. They assert the jury’s

award did not account for any of Maria’s loss of earning capacity and vastly

undervalued her future medical expenses. As we discussed previously, the fact

that the elements of special damages were not itemized on the jury verdict form,

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while not legally deficient, does impair our ability to divine the exact amounts the

jury awarded for the various categories of special damages.

It is well-settled that a jury is given great discretion in its assessment of

quantum, both general and special damages. Louisiana Civil Code article 2324.1

provides: “In the assessment of damages in cases of offenses, quasi offenses, and

quasi contracts, much discretion must be left to the judge or jury.” Furthermore,

the assessment of quantum, or the appropriate amount of damages, by a jury is a

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

Fontenot, 00-492, p. 6 (La.10/17/00), 774 So.2d 70, 74. This supreme court has

stated:

[T]he reviewing court must give great weight to factual conclusions of
the trier of fact; where there is conflict in the testimony, reasonable
evaluations of credibility and reasonable inferences of fact should not
be disturbed upon review, even though the appellate court may feel
that its own evaluations and inferences are as reasonable. The reason
for this well-settled principle of review is based not only upon the trier
of fact’s better capacity to evaluate live witnesses (as compared with
the appellate court’s access only to a cold record), but also upon the
proper allocation of trial and appellate functions between the
respective courts.

Perkins v. Entergy Corp., 00-1372 (La.3/23/01), 782 So.2d 606 (quoting Canter v.

Koehring, 283 So.2d 716, 724 (La.1973)). Because the discretion vested in the

trier of fact is so great, and even vast, an appellate court should rarely disturb an

award on review. Youn v. Maritime Overseas Corp., et al., 623 So.2d 1257, 1261

(La.1993).

Special damages are those which theoretically may be determined with

relative certainty, including medical expenses and lost wages. Kaiser v. Hardin,

06-2092 (La.4/11/07), 953 So.2d 802. An appellate court, in reviewing a jury’s

factual conclusions with regard to special damages, must satisfy a two-step process

based on the record as a whole: there must be no reasonable factual basis for the

trial court’s conclusions, and the finding must be clearly wrong. Kaiser, 953 So.2d

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at 810 (citing Guillory v. Ins. Co. of North America, 96-1084 (La.4/8/97), 692

So.2d 1029).

Initially, we note there was a vast disparity between the amounts each side’s

experts deemed necessary and warranted to compensate Maria for her injuries. We

have reviewed in detail the expert testimony to evaluate what the jury may have

considered in fashioning its award.

We agree with plaintiffs that the jury likely made no award for future loss of

earning capacity. Plaintiffs presented the testimony of Dr. Steven Staires, who

opined that Maria was not capable of returning to work and that was likely to

remain the case for the foreseeable future. They also presented the testimony of a

vocational rehabilitation expert who stated Maria was unable to perform the type

of work she had previously done, which greatly restricted her employability.

However, the jury also heard testimony that Dr. Patrick Juneau, who treated Maria

following the accident and released her to return to sedentary employment on

September 12, 2012 (approximately six months prior to the trial.) After Dr.

Juneau’s release to return to work, Maria did not return to treat with Dr. Juneau,

but chose instead to change physicians to Dr. Ilyes Munshi, who then referred her

to Dr. Staires.

Defendants also presented the testimony of Carla Seyler, accepted as an

expert in vocational rehabilitation and life care planning, who tested Maria and

reviewed all medical reports. Ms. Seyler also performed a labor market survey that

found several, available jobs within Dr. Juneau’s sedentary employment

restrictions. The jury was also informed that Dr. Juneau had signed off on several

jobs that were available to Maria.

The jury obviously accepted the testimony of Dr. Juneau and Ms. Seyler

over that of plaintiffs’ experts, credibility calls that are within the province of the

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finder of fact. Thus, we cannot say the jury did not have a reasonable factual basis

to find Maria was not entitled to an award for loss of future earning capacity.

As to future medical expenses, both sides presented widely divergent life

care plans (which attempt to set a value for all future medical and life care needs).

Plaintiffs presented a life care plan prepared by Dr. Neil Gorman, an expert in

vocational rehabilitation. Mr. Gorman’s plan totaled in excess of one million

dollars. This included approximately $550,000.00 in housekeeping expenses,

which included a maid five times per week until Maria was eighty-two (her life

expectancy). Mr. Gorman also included nearly $30,000.00 in his life plan for a

lifetime membership to a gym. Significant amounts for future medication were

also included in the plan.

Defendants presented the testimony of its economics expert, Denis

Boudreaux, who stated he had problems with Dr. Gorman’s plan, believing it was

“unreasonable” and not a reflection of her Maria’s true medical condition. Ms.

Seyler testified the extreme amount for household expenses was not warranted, as

light household work was within the restrictions authorized by Dr. Juneau. The

jury also heard the testimony of Dr. Juneau that Maria had reached maximum

medical improvement by September 12, 2012. Dr. Juneau also believed it was in

Maria’s best interest to avoid taking any more narcotic medications. He opined

that coping was her best option and recommended she participate in a coping skills

program.

Ms. Seyler also prepared a life care plan, based on the medical

recommendations of both Dr. Juneau and Dr. Staires. That plan totaled

$69,694.00. It seems apparent the jury chose to accept Ms. Seyler’s life care plan

over that of Mr. Gorman. Although we may believe Ms. Seyler’s plan to be on the

low side (as we believe Mr. Gorman’s was excessive), we cannot say the jury

abused its vast discretion in that factual and credibility determination.

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However, we do find the jury’s award of $300,000 in special damages was

abusively low because it chose to award an amount lower than the total of special

damages acknowledged by defendants to be owed. Defendants’ counsel

acknowledged Maria was “entitled to her past medical,” which was stipulated to be

$210,880.78. While defendants disputed the much larger sum of past lost wages,

its economics expert, Mr. Boudreaux, did state Maria endured lost wages in the

amount of $79,000.00. Lastly, as set forth above, Ms. Seyler determined Maria

was entitled to an award of $69,694.00 for her future medical and life care needs.

Thus, defendants have acknowledged Maria’s special damages to be $359,574.78,

and we amend the jury’s special damages award to so reflect.

VI. Jury’s Award of General Damages.

A general damage award cannot be fixed with pecuniary exactitude. It is not

our role, as an appellate court to decide what we may consider to be an appropriate

award, but rather to review the exercise of discretion by the trier of fact. An

appellate court may disturb a damages award only after an articulated analysis of

the facts discloses an abuse of discretion. Theriot v. Allstate Ins. Co., 625 So.2d

1337 (La.1993); Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993).

Furthermore, reasonable evaluations of credibility and reasonable inferences of

fact should not be disturbed upon review, even though the appellate court may feel

that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549

So.2d 840, 844 (La.1989). Where there are two permissible views of the evidence,

the factfinder’s choice between them cannot be manifestly erroneous or clearly

wrong. Id. Moreover, on review, an appellate court must be cautious not to re-

weigh the evidence or to substitute its own factual findings just because it would

have decided the case differently. Ambrose v. New Orleans Police Department

Ambulance Service, 93-3099, 93-3110, 93-3112, p. 8 (La.7/5/94), 639 So.2d 216,

221). Reasonable persons may frequently disagree about the measure of damages

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in a particular case, but “[i]t 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, 623 So.2d at 1261.

Plaintiffs contend the $200,000.00 general damage award made to Maria

was “wholly insufficient.” They note she had back and neck problems which were

initially treated with physical therapy. When that did not alleviate her problems,

an anterior cervical discectomy was performed on her by Dr. John Cobb. Despite

the surgery, Maria stated she realized little relief. Dr. Cobb then performed several

cervical epidural steroid injections.

Dr. Cobb passed away in 2011, and Maria’s care was transferred to Dr.

Juneau. It was recommended that Maria undergo a cervical decompression

surgery, which was performed by Dr. Juneau and Dr. Munshi. Maria stated she

still suffered from pain and muscle spasms. She also stated she endured pain

radiating into her left arm.

After Dr. Juneau released Maria to return to work in September of 2011, she

sought treatment from Dr. Munshi, who referred her to Dr. Staires for pain

management. Dr. Staires referred Maria back to physical therapy. He testified

Maria will have ongoing pain and will need pain management for the foreseeable

future.

Defendants note on September 12, 2011, Dr. Juneau found Maria was

capable of returning to work and released her with a sedentary employment

restriction. He also found she was at maximum medical improvement. He also

believed she would no longer need to take narcotics, and that coping was her best

option and recommended she participate in a coping skills program.

Plaintiffs also note Maria suffered a significant loss of enjoyment of life.

Maria contends, due to her continuing pain, her life was seriously impacted and she

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felt she was a burden to her family. Maria maintains she no longer enjoys a normal

family relationship with her husband and children. She stated she can no longer

attend her husband’s concerts and requires assistance to perform many routine

daily tasks.

The jury’s assignment of quantum is entitled to great deference, and we

cannot disturb an award if two permissible views of the evidence exist. While we

recognize the jury’s award might be viewed to be on the lower end of what is

appropriate, it is not our role to substitute our view of the evidence for that of the

jury’s. Based upon the evidence in the record, the jury could have reasonably

concluded $200,000.00 was an appropriate general damages award, and thus, did

not abuse its discretion in that regard.

VII. Loss of Consortium.

In their final assignment of error, Plaintiffs contend the jury manifestly erred

in failing to award any damages for loss of consortium to both Glenn Monte and

Amanda Monte. In Creel v. St. Charles Gaming Co., 97-994, p. 11 (La.App. 3 Cir.

2/4/98), 707 So.2d 475, 481, this court discussed the requirements for proving a

loss of consortium:

In order to prove a claim for loss of consortium, a plaintiff must
prove three things: (1) the liability of the defendant, (2) [the resultant]
damages, and (3) his or her consequent loss of consortium damages.
Peck v. Wal-Mart Stores, Inc., 96-645 (La.App. 3 Cir. 11/6/96), 682
So.2d 974. Loss of consortium is more than just a loss of general
overall happiness, it also includes love and affection, society and
companionship, sexual relations, the right of performance of material
services, the right of support, aid, and assistance, and felicity. Detraz
[v. Hartford Accident & Indemnity Co., 94-708 (La.App. 3 Cir.
12/7/94) ], 647 So.2d 576. The trier of fact is given much discretion
in awards for loss of consortium and will not be overturned on appeal
in the absence of manifest error. Doucet v. Doug Ashy Bldg.
Materials, Inc., 95-1159 (La.App. 3 Cir. 4/3/96), 671 So.2d 1148;
Lonthier v. Northwest Ins. Co., 497 So.2d 774 (La.App. 3 Cir.1986).

Glenn testified, due to his wife’s injuries he was forced to take over much of

the care of their adult, special needs son, Lance. He also testified due to his wife’s

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problems, their life and relationship was drastically altered. They no longer went

on vacations or attended family reunions. Glenn, who was a musician, was forced

to cancel several of his concerts to stay and care for Maria, who was very reluctant

to leave the family home.

Maria’s adult daughter, Amanda, testified her life changed dramatically after

her mother’s injuries. Amanda felt she was now the parent, taking over the

cooking, cleaning and much of the caring for Lance. She also needed to assist her

mother in many routine tasks, such as getting dressed and fixing her hair. Amanda

testified she felt an enormous amount of pressure and stress to take care of her

family. Even though she had completed school, Amanda did not attempt to find

work due to her obligations at home.

Despite the testimony it heard, the jury chose to award no damages for loss

of consortium to either Glenn or Amanda. We find this was clear error. There was

no testimony elicited to refute that Maria’s physical capabilities and emotional

state significantly changed after the accident. It was not disputed that Maria did

suffer significant problems following the accident. In closing arguments, counsel

for defendants stated “Mrs. Monte was hurt. She had two surgeries. She has been

in pain, she has suffered. Her family has suffered.” Furthermore, in discussing

Amanda’s situation in particular, counsel for defendants candidly stated “Amanda

makes my heart hurt. She really has had it hard . . .”

Although we acknowledge the broad discretion given the jury in determining

whether an award for loss of consortium is warranted, we find the jury was clearly

wrong in finding plaintiffs failed to establish a loss of consortium herein.

Therefore, after reviewing the jurisprudence for the lowest amount reasonably

within the discretion of the factfinder, Glenn Monte is entitled to an award of

$30,000.00 for his loss of consortium and Amanda Monte is entitled to an award of

$50,000.00 for her loss of consortium.

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DECREE

For the foregoing reasons, that portion of the judgment denying damages for

Glenn Monte’s and Amanda Monte’s loss of consortium is reversed. Glenn Monte

is awarded $30,000.00 for his loss of consortium and Amanda Monte is awarded

$50,000.00 for her loss of consortium. The award of special damages is amended

to raise that award from $300,000.00 to $359,574.78. In all other respects, the

judgment is affirmed. Costs of this appeal are assessed one-third against plaintiffs,

the Montes; one-third against Brent Turner and State Farm; and one-third against

Ray-Chevrolet-Olds, John Love and Granite State Insurance Company.

AFFIRMED IN PART; REVERSED IN PART; AND AMENDED.

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