Veronica Vaughn v. Aaa Insurance, Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-106

VERONICA VAUGHN

VERSUS

AAA INSURANCE COMPANY, ET AL.

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. C-85224, DIV. B
HONORABLE DEE A. HAWTHORNE, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, James T. Genovese, and John E. Conery,
Judges.

AFFIRMED.

Genovese, J., concurs in the result.

Conery, J., concurs in part, dissents in part, and assigns reasons.

Joseph Payne Williams, Sr.
Williams Family Law Firm, LLC
Post Office Box 15
Natchitoches, LA 71458-0015
(318) 352-6695
COUNSEL FOR PLAINTIFF/APPELLEE:
Veronica Vaughn

Tracy L. Oakley
Attorney at Law
Post Office Drawer 1867
Ruston, LA 71273-1867
(318) 255-4110
COUNSEL FOR DEFENDANT/APPELLANT:
Safeway Insurance Company of Louisiana

SAUNDERS, Judge.

In this personal injury action, the plaintiff driver was in an automobile

accident with an underinsured defendant. After having settled with the defendant

driver’s insurance company, the plaintiff driver brought this action against her own

insurance company under her underinsured/uninsured motorist provisions of her

policy.

The trial court rendered a judgment for the plaintiff driver against her

insurance company for damages, penalties, and attorney’s fees. The plaintiff

driver’s insurance company appeals that judgment. We affirm.

FACTS AND PROCEDURAL HISTORY:

On March 16, 2011, Veronica Vaughn (Vaughn) was in a two-car accident

with Edward Thomas (Thomas). Vaughn filed suit against Thomas, his insurer,

AAA Insurance Company (AAA), and Safeway Insurance Company (Appellant) as

her uninsured/underinsured motorist (UM) carrier. Vaughn settled with Thomas

and AAA for $14,500.00 before a trial on the merits.

Vaughn and Appellant stipulated that Thomas was solely at fault for the

accident, that Thomas’ policy with AAA had a bodily injury limit of $15,000.00,

that Vaughn had missed work at Wal-Mart from March 16, 2012, through June 11,

2012, that Vaughn was a full-time employee with an hourly pay rate of $11.00, and

that Appellant had not tendered any sums under its UM coverage to Vaughn.

On July 22, 2013, trial was held on the matter. During trial, Vaughn

introduced medical bills totaling $3,988.87 without objection. On August 29, 2013,

the trial court issued written reasons and its judgment against Appellant awarding

Vaughn $8503.35 in damages, $4,251.68 in statutory penalties, and $5,000.00 in

attorney’s fees, plus legal interest from the date of judgment until paid. Appellant

appeals this judgment assigning three errors.

ASSIGNMENTS OF ERROR:

1. The trial court abused its discretion in awarding the plaintiff general
damages of $14,000.00 for a two month soft tissue injury with no
residual problems/symptoms/complaints.

2. The trial court erred in the amount awarded the plaintiff for lost wages
in this matter.

3. The trial court erred in finding bad faith and awarding the plaintiff
penalties and attorney’s fees against Safeway Insurance Company of
Louisiana in this matter.

ASSIGNMENT OF ERROR NUMBER ONE:

Appellant contends in the first assignment of error that the trial court

awarded excessive general damages in the amount of $14,000.00 for a two month

soft tissue injury with no residual issues. We find no merit to this contention.

An appellate court’s review general damage awards is to
determine whether the trier of facts’ exercise of discretion was valid
rather than consideration of what it considers appropriate. Cormier v.
Republic Ins. Co., 11–632 (La.App. 3 Cir. 1/18/12) [118] So.3d [16].
“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.” Youn v. Maritime Overseas Corp.,
623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114
S.Ct. 1059, 127 L.Ed.2d 379 (1994).

Richard v. Artigue, 11-1471, p. 13 (La.App. 3 Cir. 4/4/12), 87 So.3d 997, 1006.

Appellant’s contention that the amount awarded by the trial court was

excessive is based solely on the amount of time that Vaughn underwent medical

treatment and had complaints. However, after reviewing the record, it is clear that

the trial court considered additional factors in reaching its award. The trial court

stated in its reasons for judgment, under the heading of general damages, the

following:

It appears that the defendant is seeking to have the Court
determine the value of general damages in this case by a mechanical
consideration of the length of the plaintiff’s medical treatment and the
amount of medical costs incurred by the plaintiff. However, that is
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not what the Court is mandated to do. This Court must consider all of
the facts in each case and how those facts impact the particular
plaintiff. Clearly, the length of medical treatment and the amount of
medical costs are a part of that evaluation, but certainly not all.

Given the record before us, we find that the trial court did not abuse the

discretion afforded to it in making this general damage award. The trial court

found that Vaughn experienced an accident with a significant impact such that her

vehicle was totaled, she had to be immobilized and wear a neck collar prior to

being extracted from the vehicle’s passenger door, and she had to be transported to

an emergency vehicle via a spine board. Further, the trial court noted that it found

both Vaughn and her mother to be credible witnesses and that Vaughn suffered

both physical and mental pain due to the accident. While the extent of Vaughn’s

physical injuries may have been only “soft tissue injuries” as so described by

Appellant, it is clear that the trial court found that both the physical and mental

pain associated with those injuries was significant.

Accordingly, we find that the general damage award of $14,000.00 was not

excessive. As such, we affirm the award.

ASSIGNMENT OF ERROR NUMBER TWO:

In their second assignment of error, Appellants assert that the trial court

erred in the amount awarded Vaughn for lost wages. We disagree.

Special damages, which are those damages that can be
established to a reasonable mathematical certainty, include awards for
past and future lost earnings. Myers v. Broussard, 96-1634 (La.App. 3
Cir. 5/21/97), 696 So.2d 88. When a trier of fact assesses special
damages, the discretion is more limited or narrower than the
discretion to assess general damages. Eddy v. Litton, 586 So.2d 670
(La.App. 2 Cir.1991), writ denied, 590 So.2d 1203 (La.1992). The
standard of review, however, is still that of abuse of discretion.
Wainwright v. Fontenot, 00-492 (La.10/17/00), 774 So.2d 70.

A plaintiff has the burden to prove that he or she sustained a
loss of income. Carter v. State Farm Mut. Auto. Ins. Co., 548 So.2d
53 (La.App. 3 Cir.1989). An award for lost past wages can be
calculated as the amount a plaintiff would have in all likelihood
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earned had he or she been able to work. Taylor v. Premier Ins. Co. of
Mass., 98-1934, 98-1935, (La.App. 3 Cir. 6/30/99), 742 So.2d 35.

Cottle v. Conagra Poultry Co., 06-1160, p. 3 (La.App. 3 Cir. 3/14/07), 954 So.2d

255, 257-58.

The trial court found as fact that Vaughn could not have worked until June

11, 2012. It did so based on the testimony of Vaughn, her mother, and Dr.

Marguerite B. Picou, Vaughn’s treating physician. Further, the trial court relied

heavily on Exhibit 1 according to Appellant. Appellant disputes the probative

value of that exhibit.

Exhibit 1 is entitled Certificate to Return to School/Work. It indicates that

Vaughn was under Dr. Picou’s care from March 16, 2012, through June 5, 2012,

and could return to work with no restrictions on June 5, 2012. It was signed on Dr.

Picou’s behalf by a member of Dr. Picou’s staff and dated May 23, 2012.

Appellant cites various points in Dr. Picou’s deposition testimony that it asserts

indicate that Dr. Picou did not give much credence to Exhibit 1. However, Dr.

Picou testified that her office manager signed Exhibit 1 for her and that her office

manager was authorized to do so. Further, Dr. Picou states near the end of her

being questioned on Exhibit 1, “[m]aybe [Vaughn] had physical therapy scheduled

after that. I don’t have any idea why [her office manager] gave [Vaughn] until

6/5/12.” Given these statements by Dr. Picou, we cannot say that the trial court

erred in relying on Exhibit 1 as sufficient evidence to support a finding of fact that

Vaughn could not return to work until at least June 5, 2012.

According to Vaughn’s testimony, she did not return to work on June 5,

2012, because her employer made its employee’s work schedule in advance, and it

had already made its schedule without including her until the following week that

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began on June 11, 2012. The trial court found Vaughn to be credible, and this

finding is not in dispute.

As such, the trial court’s findings are supported by evidence in the record.

We, therefore, find no abuse of the discretion afforded the trial court in awarding

lost wages and affirm its award.

ASSIGNMENT OF ERROR NUMBER THREE:

Appellant avers in its final assignment of error that the trial court erred in

finding bad faith and awarding Vaughn penalties and attorney’s fees against it. We

find no merit to this assignment.

Determining whether an insurer’s refusal to settle a claim prior
to going to trial was arbitrary and capricious is highly fact specific.
For this reason, the findings of the trial court should not be overturned
on appeal absent clear error. Rogers v. Government Employees Ins.
Co., 598 So.2d 670 (La.App. 3 Cir.), writ denied, 605 So.2d 1364
(La.1992).

Robin v. Allstate Ins. Co., 03-926, 03-1009, p. 8 (La.App. 3 Cir. 3/24/04), 870

So.2d 402, 409, writ denied, 04-1383, (La. 9/24/04), 882 So.2d 1143.

Prior to trial on the matter, Appellant stipulated that Thomas’ policy with

AAA had a liability limit of $15,000.00 with no other insurance available to him

for the accident. Further, Appellant stipulated that Thomas was solely liable for

the accident. Additionally, Appellant stipulated that Vaughn was claiming medical

expenses totaling nearly $4,000.00, lost wages totaling just over $5,500.00, and

pain and suffering for nearly three months. Thus, Appellant had knowledge that its

underinsured policy of insurance contract with Vaughn would in all likelihood

make it responsible for at least some of the damages suffered by Vaughn.

Despite knowledge of the above, Appellant made no offer of tender in the

case. Further, Appellant put forth no evidence or witnesses in an attempt to justify

its failure to tender any offer. It merely relies on its counsel’s argument that is

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based on a strained interpretation of the evidence. As such, with the great

discretion given to the trial court on such a highly fact-specific issue, we find no

error by the trial court in awarding penalties and attorney’s fees to Vaughn.

ANSWER TO APPEAL:

Vaughn has requested additional attorney’s fees for work performed on

appeal. We grant this request.

Attorney’s fees awarded for work done on appeal are warranted when they

are awarded below. This is such in order to keep the judgment of the two courts

consistent. Chavis v. Dillard’s, Inc., 11-827 (La.App. 3 Cir. 12/21/11), 80 So.3d

1194 (citing McFadden v. Import One, Inc., 10-952 (La.App. 3 Cir. 2/9/11), 56

So.3d 1212).

Here, Vaughn successfully defended her judgment from three issues raised

by Appellant. Given the level of complexity of the issues raised in those three

assignments of error, we award Vaughn $3,000.00 in attorney’s fees for work done

on appeal.

CONCLUSION:

Safeway Insurance Company raises three assignments of error. We find no

merit in any of the assignments raised. The judgment of the trial court is affirmed.

Veronica Vaughn requests additional attorney’s fees for work done on this

appeal. We grant this request and award her $3,000.00 for work done on appeal.

Costs of this appeal are assessed to Safeway Insurance Company.

AFFIRMED.

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NUMBER 14-106

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

VERONICA VAUGHN

VERSUS

AAA INSURANCE, CO., ET AL.

CONERY, J., concurs in part, dissents in part, and assigns reasons.

I concur with the majority’s decision to affirm the trial court’s judgment as

to general damages and lost wages. However, I respectfully dissent from its

decision to affirm the trial court’s grant of penalties and attorney fees and to award

additional attorney fees for work done on appeal.

As the majority correctly states, this court has previously held, “Determining

whether an insurer’s refusal to settle a claim prior to going to trial was arbitrary

and capricious is highly fact specific. For this reason, the findings of the trial court

should not be overturned on appeal absent clear error.” Robin v. Allstate Ins. Co.,

03-1009, p. 8 (La.App. 3 Cir. 3/24/04), 870 So.2d 402, 409, writ denied, 04-1383

(La. 9/24/04), 882 So.2d 1143. While great deference is afforded to the trial court

because of the highly fact specific nature of the issue, the specific facts of this case

do not warrant a grant of penalties and attorney fees. The trial judge was clearly

wrong and the judgment on this particular issue should be reversed.

In the present case, a review of the record demonstrates that prior to trial,

Safeway was not presented with sufficient facts to justify a further payment. The

trial court relied on Exhibit “1” which provided that the plaintiff had been under

Dr. Picou’s care from 3/16/12 to 6/5/12 and could return to school/work on 6/5/12.

The trial court determined that the “facts” contained in Exhibit “1” demonstrated

notice adequate to provide satisfactory proof of loss. However, Exhibit “1” is not

fact specific and does not set forth proof of what the plaintiff’s actual damages

were and the extent of those damages. Thus, the plaintiff did not adequately

establish satisfactory proof of loss at the time the claim was first presented and

reviewed by Safeway. The plaintiff’s own treating physician, Dr. Picou, testified

that the only objective finding at the plaintiff’s first visit was that the plaintiff had

some muscle tightness. In addition, the plaintiff discontinued physical therapy on

her own, had no permanent injuries or disability, had been pain free since she

completed therapy on May 5, 2012, did not miss any events or give up any

hobbies, and had no problems once she returned to work.

“Whether or not a refusal to pay is arbitrary, capricious, or without probable

cause depends on the facts known to the insurer at the time of its action.” Reed v.

State Farm Mut. Auto. Ins. Co., 03-0107, p. 14 (La. 10/21/03), 857 So.2d 1012,

1021. Our supreme court further stated in Reed, “Especially when there is a

reasonable and legitimate question as to the extent and causation of a claim, bad

faith should not be inferred from an insurer's failure to pay within the statutory

time limits when such reasonable doubts exist.” Id. Bad faith cannot be inferred

from the facts known to Safeway at the time proof of loss was submitted due to the

reasonable and legitimate questions as to the nature and extent of the plaintiff’s

damages. The trial court was clearly wrong in awarding penalties and attorney

fees based on its conclusion that Safeway was in bad faith. Reed, 857 So.2d 1012.

I would reverse the award of penalties and attorney fees and, consequently, deny

an award for additional attorney fees for work done on appeal.

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