Sandalon Jacobs v. David Sampson

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-506

SANDALON JACOBS, ET AL.

VERSUS

DAVID SAMPSON, ET AL.

**********

APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2014-1111-A
HONORABLE KERRY L. SPRUILL, DISTRICT JUDGE

**********

MARC T. AMY
JUDGE

**********

Court composed of Marc T. Amy, Elizabeth A. Pickett, and John E. Conery,
Judges.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH
INSTRUCTIONS.

Conery, J., concurs.

Michael Thomas Johnson
Johnson & Siebeneicher
Post Office Box 648
Alexandria, LA 71309
(318) 484-3911
COUNSEL FOR DEFENDANTS/APPELLEES:
Automobile Club Inter-Insurance Exchange
David Sampson

James B. Reichman
Reichman Law Firm
728 Jackson Street
Alexandria, LA 71301-8011
(318) 442-3251
COUNSEL FOR DEFENDANT/APPELLANT:
State Farm Mutual Automobile Insurance Company

Andrew P. Texada
Stafford, Stewart & Potter
Post Office Box 1711
Alexandria, LA 71309
(318) 487-4910
COUNSEL FOR DEFENDANT/APPELLANT:
State Farm Mutual Automobile Insurance Company

Benjamin D. James
Roy & Scott, Attorneys at Law
107 North Washington Street
Marksville, LA 71351
(318) 240-7800
COUNSEL FOR PLAINTIFFS/APPELLEES:
Sandalon Jacobs
Mario Jacobs

AMY, Judge.

This matter involves an automobile accident alleged to have occurred when

the driver of a truck applied the brakes in order to avoid striking a vehicle that

turned into his lane of traffic. Contact with the turning vehicle was avoided.

However, the driver of a vehicle being towed by the lead truck could not stop,

resulting in an accident between those two vehicles. The passenger of the lead

truck and the driver of the towed vehicle alleged injury as a result of the impact.

Both the driver of the turning vehicle and the driver of the lead truck were named

as defendants, as were their insurers. Following a bench trial, the trial court

assessed 95% of the fault for the accident to the driver of the turning vehicle and

5% of the fault to the driver of the lead truck. It awarded general damages and past

medical expenses to both plaintiffs. The insurer of the driver of the turning vehicle

appealed. For the following reasons, we affirm in part, reverse in part, and remand

with instructions.

Factual and Procedural Background

On November 8, 2013, David Sampson was traveling on the Marksville

Highway in Avoyelles Parish, with Mario Jacobs as a passenger in his Ford truck.

A second truck, a Chevrolet owned and occupied by Sandalon Jacobs, was

attached by tow rope. Sandalon explained that the tow was necessary in order to

relocate his truck from Hessmer to his home in Marksville due to a faulty fuel

pump and a lack of insurance on the vehicle.

The record indicates that as the trucks were northbound on the highway, a

Buick driven by Florence Decuir was traveling on Lemoine Street toward its

intersection with the highway. Ms. Decuir explained that she saw the trucks

approaching and that, as she thought she saw a turn signal, she turned onto the

highway in order to give the trucks more room for the turn. Mr. Sampson, Mario,

and Sandalon testified that Ms. Decuir turned onto the highway without stopping at

the stop sign at the Lemoine Street intersection. 1 Mr. Sampson explained that,

upon her turn, he “slowed” his truck to avoid hitting the Decuir vehicle. He denied

“mashing” the brakes.

While Mr. Sampson avoided contact with Ms. Decuir, Sandalon explained

that he applied the brakes in his truck in tow, but that it struck the rear of Mr.

Sampson‟s truck. Sandalon further explained that his truck “dropped” as a result

of the tire2 flying off of the truck. Ms. Decuir, who proceeded on the highway,

denied that she saw a collision, but explained that, when she looked behind her

after turning, she saw a tire rolling to the side of the truck. She explained that she

did not think that an accident occurred, but that she “thought maybe the tire had

just blown out.”

Thereafter, Mario and Sandalon filed suit, alleging personal injury as a result

of the accident. They named Mr. Sampson and his insurer, Automobile Club Inter-

Insurance Exchange, as defendants, as well as Ms. Decuir and her insurer, State

Farm Mutual Automobile Insurance Company. State Farm was further named as a

defendant in its capacity as Mario‟s uninsured motorist insurance provider. In pre-

trial proceedings, the plaintiffs dismissed Ms. Decuir from the proceedings, but

proceeded against State Farm as her insurer. By the time of the subject bench trial,

the only remaining defendant was State Farm, as insurer of Ms. Decuir.

1
Testimony indicated that neither a traffic signal nor stop sign controlled Mr. Sampson‟s lane of
travel.
2
Witnesses referenced the object as both a “tire” and a “wheel.”

2

The trial court ultimately ruled in favor of the plaintiffs, apportioning 95%

of fault to Ms. Decuir and the remaining 5% to Mr. Sampson. The trial court

determined that both plaintiffs sustained soft tissue injuries. It awarded Sandalon

$46,500.00 in general damages and $5,397.81 in past medical expenses. The trial

court awarded Mario $35,200.00 in general damages and $7,377.73 in past medical

expenses.

State Farm appeals, asserting that the trial court erred in: 1) failing to apply

La.R.S. 32:866 to Sandalon‟s claim as he was operating his vehicle without

insurance; 2) its apportionment of fault; 3) awarding Mario pharmacy bills for

certain medications that had been prescribed before the accident; 4) awarding

excessive general damages to Sandalon for soft tissue injuries; and in 5) awarding

general damages to Mario in light of prior accidents. We address these

assignments out of order for purposes of discussion.

Discussion

Fault

Challenging the 95% apportionment of fault to Ms. Decuir, State Farm

asserts that the trial court erred in failing to apportion at least some fault to

Sandalon as the operator of the towed truck. It argues that although Ms. Decuir

executed her turn onto the highway ahead of the two trucks, the trial court erred in

its failure to apportion a larger percentage fault to Mr. Sampson, as he failed to

safely regulate his speed as the driver of the lead truck. It also argues that the trial

court erred in failing to apportion any fault to Sandalon, as he was unable to avoid

contact with Mr. Sampson‟s vehicle, despite the fact that he was a following

vehicle being towed only one car length behind Mr. Sampson while traveling at

speeds of fifty-five miles per hour.

3

We first address State Farm‟s argument that the trial court erred in its

determination that Sandalon was not, to any degree, at fault for the accident.

Louisiana Civil Code Article 2315 provides generally that: “Every act whatever of

man that causes damage to another obliges him by whose fault it happened to

repair it.” Additionally, La.Civ.Code art. 2316 provides that: “Every person is

responsible for the damage he occasions not merely by his act, but by his

negligence, his imprudence, or his want of skill.”

Pursuant to the attendant duty-risk analysis, a finding of fault under the facts

of a particular case requires proof that: 1) the actor had a duty to conform his or

her conduct to a specific standard of care; 2) the actor failed to conform his or her

conduct to that standard of care; 3) the substandard conduct was a cause-in-fact of

the alleged injury; 4) the substandard conduct was a legal cause of the alleged

injuries; and that 5) actual damages were sustained. S.J. v. Lafayette Par. Sch. Bd.,

09-2195 (La. 7/6/10), 41 So.3d 1119. For review purposes, we are mindful that a

determination as to whether a duty is owed is a question of law. Brewer v. J.B.

Hunt Transport, Inc., 09-1408 (La. 3/16/10), 35 So.3d 230. However, a finding

regarding whether a duty has been breached is a question of fact. Id.

With regard to State Farm‟s characterization of Sandalon as a following

driver, La.R.S. 32:81(A) provides that “[t]he driver of a motor vehicle shall not

follow another vehicle more closely than is reasonable and prudent, having due

regard for the speed of such vehicle and the traffic upon and the condition of the

highway.” Additionally, jurisprudence reflects a presumption of negligence when

a following motorist is involved in a rear-end collision. See Brewer, 35 So.3d 230.

However, that presumption is rebuttable. Id. The following motorist may establish

that the unpredictable operation of the preceding vehicle created a situation which

4

the following motorist could not reasonably have anticipated. Id. (citing Cheairs v.

State, Dep’t of Transp. & Dev., 03-0680 (La. 12/3/03), 861 So.2d 536).

Assuming the applicability of La.R.S. 32:81(A) to Sandalon as a following

driver for discussion purposes, we find no manifest error in the trial court‟s

determination that he did not breach the duty provided by the statute. In ruling, the

trial court remarked upon Mr. Sampson‟s speed in driving the lead vehicle, stating:

It is apparent that any reasonable man would not have driven this
fast[ 3 ] at the location in the city limits of Marksville where the
accident occurred which the, the rate of the speed apparently did not
give Mr. [Sandalon] Jacobs who was being towed sufficient time to
brake his vehicle and resulted as a [ ] contributing factor this accident
[sic].”

Thus, the trial court considered the unique circumstance that Sandalon‟s vehicle

was tethered to that driven by Mr. Sampson. Certainly, it is apparent that Sandalon

had only limited control over the speed of his own, towed vehicle. Furthermore, it

is apparent that the distance between the vehicles was dictated, at least in part, by

the length of the tow rope. However, we find error in the trial court‟s

determination that the inquiry as to any duty owed by Sandalon is resolved by that

consideration.

Rather, those very circumstances reveal the perilous nature of the task

undertaken by both Mr. Sampson and Sandalon. Undoubtedly, Sandalon was a

participant in the towing operation that resulted in the accident. See, e.g., LeBlanc

v. Stevenson, 00-0157 (La. 10/17/00), 770 So.2d 766 (a matter in which the

plaintiff was observed to be “an actor in [an] accident” that occurred when a tow

line between his stationary vehicle and a lead vehicle caused injury to his hand).

Both men agreed to undertake a towing venture that necessarily left Sandalon at

3
Both Mario and Sandalon testified that they were traveling 55 miles per hour.

5

the steering wheel, but unable to independently control the speed of his own

vehicle. He was instead subject to the speed of the lead vehicle. Neither could he

control the maximum distance of his truck from Mr. Sampson‟s truck as that

distance was dictated by the length of the tow rope the men used in the operation.

Further, it is unquestioned that Mr. Sampson‟s participation was at

Sandalon‟s request. As explained above, Sandalon felt that his truck was not

suitable for driving on the highway due to a faulty fuel pump and lack of

insurance. Thus, and notwithstanding Mr. Sampson‟s fault, it is apparent that

Sandalon was an actor in the towing operation and, in turn, owed a duty to act

reasonably and prudently in performing that duty. See, e.g., Bates v. Lagars, 193

So.2d 375, 379 (La.App. 2 Cir. 1966) (wherein the second circuit explained that

the owner of a car being removed by a tow rope from a roadside ditch “had the

right to direct and control the operation of removing his car from the ditch; he was

present and actively assisting in the effort” and, thus, the acts of negligence of the

tow driver were “imputable to” the owner), writ refused, 195 So.2d 146 (La.1967).

As executed, however, the joint undertaking resulted in Sandalon being unable to

timely stop his vehicle or independently fulfill the duty required of a following

vehicle. 4 See La.R.S. 32:81(A). In this regard, we find that the trial court was

manifestly erroneous in failing to determine that Sandalon, too, breached a duty

owed by him. Given the immediacy of the accident and Sandalon‟s allegations

regarding the causation of his injuries, the presence of the legal cause and cause-in-

fact elements of the duty-risk analysis are readily apparent.

4
We note that State Farm also contends that Sandalon should have been assessed with fault due
to his tire flying from the car. Although State Farm suggests that this event could have
“contributed to his inability to stop in time,” a breach of duty is not apparent from the fact of this
allegation alone. Significantly, State Farm presented no witness, lay or expert, who testified
regarding the tire as a causative factor.

6

Finally, and as explained above, we are mindful that the driver of a

following vehicle may rebut a presumption of negligence in a rear-end accident by

demonstrating that the unpredictable operation of the preceding vehicle created a

situation which the following motorist could not have anticipated. Brewer, 35

So.3d 230. However, in this instance, it is clear that Sandalon could have

anticipated that the lead vehicle would travel at speeds beyond which he could

safely stop given the distance dictated by the tow rope and his limited operational

control of the vehicle.5 Thus, the record demonstrates that Sandalon failed to rebut

the presumption.

The finding that the trial court was manifestly erroneous in failing to assign

any fault to Sandalon requires adjustment of the allocation of fault. See, e.g.,

Brewer, 35 So.3d 230. Additionally, State Farm questions the trial court‟s

apportionment of the greater percentage of fault (95%) to its insured, Ms. Decuir,

in comparison to the minimal percentage (5%) attributed to Mr. Sampson. In

particular, State Farm suggests that “the primary cause of the accident was the

decision to tow the Jacobs truck at 55 mph, for which David Sampson and

Sandalon Jacobs are equally at fault.” It suggests that Ms. Decuir‟s fault, if any,

was minimal and asserts that “[s]he may have mistaken the emergency flashers for

a right turn signal, but [ ] when she pulled out onto the highway, there was still

sufficient time and space for the Sampson truck to avoid hitting her without taking

extraordinary measures other than to apply his brakes.”

Louisiana Civil Code Article 2323(A) provides for comparative fault and

requires that:

5
Sandalon explained at trial that his engine was not turned on while the truck was being towed.
When asked by State Farm‟s counsel whether “any of the power brakes worked[,]” Sandalon
explained that: “All know is I had steering and I had braking you know that‟s all.”

7

In any action for damages where a person suffers injury, death,
or loss, the degree or percentage of fault of all persons causing or
contributing to the injury, death, or loss shall be determined,
regardless of whether the person is a party to the action or a nonparty,
and regardless of the person‟s insolvency, ability to pay, immunity by
statute, including but not limited to the provisions of R.S. 23:1032, or
that the other person‟s identity is not known or reasonably
ascertainable. If a person suffers injury, death, or loss as the result
partly of his own negligence and partly as a result of the fault of
another person or persons, the amount of damages recoverable shall
be reduced in proportion to the degree or percentage of negligence
attributable to the person suffering the injury, death, or loss.

The supreme court has explained that allocation of fault is evaluated under the

following factors:

(1) whether the conduct resulted from inadvertence or involved an
awareness of the danger; (2) how great a risk was created by the
conduct; (3) the significance of what was sought by the conduct; (4)
the capacities of the actor, whether superior or inferior, and, (5) any
extenuating circumstances which might require the actor to proceed in
haste without proper thought.

Thompson v. Winn-Dixie Montgomery, Inc., 15-0477, p. 14 (La. 10/14/15), 181

So.3d 656, 666-67 (citing Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d

967 (La.1985)). As a trial court‟s “findings regarding percentages of fault are

factual,” those findings “will not be disturbed on appeal unless clearly wrong.”

Purvis v. Grant Par. Sch. Bd., 13-1424, p. 4 (La. 2/14/14), 144 So.3d 922, 926.

However, after an appellate court finds clear error in the apportionment of fault, “it

should adjust the award, but only to the extent of lowering or raising it to the

highest or lowest point respectively which is reasonably within the trier of fact‟s

discretion.” Brewer, 35 So.3d at 244.

Having reviewed the record in light of the factors of apportionment above,

we conclude that the trial court was clearly wrong both in its failure to apportion

fault to Sandalon and in its apportionment of 95% of the fault to Ms. Decuir.

However, the record does support the trial court‟s finding of fault on the part of

8

Ms. Decuir. In ruling, the trial court determined that, although Ms. Decuir felt that

Mr. Sampson‟s vehicle was turning upon seeking a blinking light, “it was the

flasher‟s [sic] that Mr. Sampson had turned on as he had indicated in his deposition

and is support[ed] by the testimony of both plaintiffs today.” The trial court noted

testimony indicating that all four of Mr. Sampson‟s hazard lights were working and

additionally noted testimony that the trucks were proceeding straight ahead without

intention of turning. The trial court further found that Ms. Decuir “didn‟t yield at

that stop sign and without determining that this right turn could be made safely.”

Thus, the trial court determined that she “was careless in her [ ] operation of her

vehicle at that time.” That maneuver, the trial court found, “caused David

Sampson to brake the towing vehicle that he was driving.” As addressed above, it

further “set out a series of events that require[d] Mr. [Sandalon] Jacobs to have to

stop the vehicle[.]” Again, the trial court rejected a finding of fault by Sandalon,

finding that “the lead or turning vehicle in this case driven by Ms. Decuir . . .

created a hazardous situation which the following vehicle that is coming along and

it had pre-empted the right of way . . . the Sampson vehicle and his vehicle in tow

could not avoid.” In particular, the trial court found that “the acts of negligence for

Ms. Decuir” included disregarding the stop sign and failing to yield the right of

way. See La.R.S. 32:123.6 The trial court then addressed Mr. Sampson‟s fault,

6
Louisiana Revised Statutes 32:123 provides, in pertinent part:

A. Preferential right of way at an intersection may be indicated by stop
signs or yield signs.

B. Except when directed to proceed by a police officer or traffic-control
signal, every driver and operator of a vehicle approaching a stop intersection
indicated by a stop sign shall stop before entering the crosswalk on the near side
at a clearly marked stop line, but if none, then at the point nearest the intersecting
roadway where the driver has a view of approaching traffic on the intersecting
roadway before entering the intersection. After having stopped, the driver shall
yield the right-of-way to all vehicles which have entered the intersection from

9

determining, as previously set forth, that he was traveling at an excessive rate of

speed for the area.

While State Farm suggests in its brief that Ms. Decuir “testified that she

came to a complete stop at the stop sign and saw the Sampson vehicle” before

proceeding onto the highway, review of Ms. Decuir‟s deposition testimony does

not support that assertion.7 Rather, Ms. Decuir did not testify as to whether or not

she stopped at the stop sign and, furthermore, testified that she saw the “vehicles

coming.” In any event, however, the trial court credited the version of events

offered by Mr. Sampson, Mario, and Sandalon, who each explained that they saw

Ms. Decuir approach the intersection, but that she failed to stop. Their testimony

further supported the finding that Mr. Sampson‟s “flashers,” rather than his turn

signal, were engaged. As these assessments of credibility were within the trial

court‟s province and are owed great deference, we leave those findings undisturbed

and maintain the determination that Ms. Decuir was at fault in the accident. See

Hebert v. Rapides Par. Police Jury, 06-2001 (La. 4/11/07), 974 So.2d 635.

Yet, having addressed Ms. Decuir‟s fault, the record does not support a

finding that she was responsible for the majority of fault as found by the trial court.

Certainly, Ms. Decuir‟s actions created a significant risk and, in this case, resulted

in an accident. See Thompson, 181 So.3d 656. And, despite Mr. Sampson‟s

apparent speed, Ms. Decuir was the only driver faced with a control signal at that

intersection. She was, at least arguably, in a superior position to prevent the

another highway or which are approaching so closely on said highway as to
constitute an immediate hazard.
7
Describing the events at issue, Ms. Decuir stated that: “I left my house, went to the corner of
the highway and Lemoine. Saw these vehicles coming. Saw a left turn signal, so I proceeded to
turn right to give them more room. And I went on down toward CVS. I did not touch anything.”
She further related that she then “saw this vehicle coming behind me. That is when I looked to
the back, and I did see a tire. But other than that, I didn‟t see anything else.”

10

accident, which we address below. Id. Further, the trial court determined that Ms.

Decuir created a significant risk by turning into a lane of travel without ensuring

that the vehicles, one of which was being towed, were turning as she mistakenly

expected. Id. Neither does the record indicate that there were extenuating

circumstances that would have required Ms. Decuir to proceed in haste without

proper thought. Id. While Ms. Decuir explained that she was providing the

turning vehicles with additional room, there was no testimony that additional room

would have been required in the event of such a turn. Finally, however, it appears

that Ms. Decuir‟s actions resulted from inadvertence as her turn was apparently

predicated upon her failure to recognize that Mr. Sampson‟s hazard lights were

engaged rather than his turn signal. Id.

Contrarily, Mr. Sampson and Sandalon intentionally undertook the towing

operation, subjecting the towed vehicle, with Sandalon at the wheel, to the

highway speeds driven by the lead vehicle. See Thompson, 181 So.3d 656. Like

the actions of Ms. Decuir, the towing of a vehicle at speeds beyond which the

towed vehicle could possibly stop obviously created a significant risk. The third

comparative fault inquiry of “the significance of what was sought by the conduct”

of the actor does not fall in favor of Mr. Sampson and Sandalon. Id. at 667. While

Sandalon‟s truck may have required a tow to his home in Marksville, a towing

service could have been engaged for the transfer. The pair instead employed this

self-help measure. Further, the record contains no extenuating circumstances that

required their actions. Id. As the various factors are largely applicable to some

extent to all of the actors, it is the remaining element regarding the respective

capacities of the actors that is determinative in this case. Id.

11

Above, we observed that Ms. Decuir was arguably in a superior position to

avoid the accident as she turned onto a highway without yielding and doing so with

the two vehicles approaching at a high rate of speed. Despite her negligence in

doing so, however, recall that Mr. Sampson was, in fact, able to stop his vehicle

without striking her. Thus, while Ms. Decuir‟s action of turning ahead of the

vehicles was a contributing factor, the injuries here would not have occurred absent

the conditions surrounding the towed vehicle. In short, had Mr. Sampson not been

towing Sandalon in his vehicle and doing so at such a high rate of speed, there

would have been no accident between the lead and towed trucks. Thus, we

conclude that the record dictates that Mr. Sampson and Sandalon must bear the

greater percentage of fault. Accordingly, we increase the fault attributable to Mr.

Sampson to 30% and further apportion a corresponding 30% of the fault to

Sandalon, amounts that we find are the lowest amount the trial court could have

reasonably allocated to them. Brewer, 35 So.3d 230. In turn, we decrease Ms.

Decuir‟s apportionment of fault to the remaining 40%, the highest point that was

reasonably within the trial court‟s discretion. Id.

Finding merit in this argument, we below include language in the decree

reflecting the apportionment of fault between the three drivers. We further remand

this matter to the trial court to amend the award of damages in light of that

apportionment.

Damages

State Farm also challenges the trial court‟s damages award, suggesting that

the measure of general damages found due to both Sandalon ($46,500.00) and to

Mario ($35,200.00) is excessive. State Farm separately contests the award of

12

certain prescription drugs to Mario as he was previously prescribed those

medications for pre-existing injuries.

With regard to review of damages, La.Civ.Code art. 2324.1 provides that:

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

contracts, much discretion must be left to the judge or jury.” Additionally, a trial

court‟s determination of the appropriate quantum of damages is also entitled to

great deference by an appellate court. Guillory v. Lee, 09-0075 (La. 6/26/09), 16

So.3d 1104. Because that discretion “is so great, and even vast, an appellate court

should rarely disturb an award on review.” Id. at 1117.

As for general damages, which the supreme court observed may not be fixed

with “pecuniary exactitude,” an appellate court is not to decide what it considers to

be an appropriate award. Guillory, 16 So.3d at 1117. Rather, the appellate court

reviews the trial court‟s exercise of its discretion. Id. Further, in review of a trier

of fact‟s award of special damages such as medical expenses, which “theoretically

may be determined with relative certainty,” an appellate court considers: 1)

whether a reasonable basis exists for a trial court‟s conclusions and 2) whether that

finding was clearly wrong. Id. at 1117. With this standard in mind, we consider

State Farm‟s assignments regarding damages.

General Damages – Sandalon Jacobs

Noting that Sandalon testified that he suffered neck and back injury as a

result of the accident, State Farm asserts that he otherwise offered “very little

testimony regarding the severity of his pain or injury.” It further notes that he was

able to continue in his position as a grass cutter for Avoyelles Parish. This

evidence, State Farm argues, does not support the $46,500.00 general damages

award. It instead argues that the trial court‟s reasons for ruling indicate an

13

excessive reliance on the number of months that Sandalon received treatment

rather than evidence of his limitations.

On review, we do not disturb the trial court‟s ruling. Sandalon explained at

trial that he sustained injury to his low back and neck and that he began treatment

with Dr. Darron McCann eleven days following the accident. Sandalon confirmed

that he saw Dr. McCann a total of sixteen times over the course of approximately

eighteen months. Reference to exhibits introduced regarding Dr. McCann‟s care

reveals a diagnosis of neck strain, back strain and insomnia related to that

discomfort. Dr. McCann indicated in his narrative report that Sandalon‟s treatment

included: “cortisone injections, pain medications, muscle relaxers, anti-

inflammatory medication, and sleep medication.”

The records also indicate that Sandalon was prescribed physical therapy,

which he completed after seven visits. Although Sandalon testified that the

physical therapy exacerbated his pain, Dr. McCann reported that it “did help

some.” Noting that Sandalon‟s symptoms diminished over the course of the

treatment, Dr. McCann reported that Sandalon‟s medication was adjusted

accordingly. Dr. McCann‟s narrative report indicates that Sandalon‟s neck

complaints resolved by July 2014 and that his back complaints resolved by March

2015. Sandalon‟s testimony confirmed the improvement in his pain. By the time

of the March 2016 trial, he explained that he occasionally has aches and pains in

his lower back and a burning sensation in his neck, but that he “[j]ust deal[s] with

it.”

In light of this evidence, we find no abuse of discretion in the trial court‟s

award to Sandalon. While Sandalon spoke only generally regarding the pain he

experienced and his ability to continue his physically demanding job, the

14

documentary evidence of his medical care corroborates his complaints, providing

further support for the quantum of the award. Dr. McCann employed a multi-

faceted approach to the soft tissue injuries relying not only upon various

medications, but cortisone injections and physical therapy as well.

Finally, we find no merit in State Farm‟s assertion that the trial court placed

undue reliance on the number of months for which Sandalon received treatment.

First, we note that an appellate court reviews a trial court‟s judgment, not its

reasons for ruling. Wooley v. Lucksinger, 09-571 (La. 4/1/11), 61 So.3d 507.

Rather, a trial court‟s oral or written ruling is a mere explanation of a trial court‟s

determinations. Id. Furthermore, State Farm cites no jurisprudence indicating that

the length of Sandalon‟s treatment may not be considered as a factor in shaping the

damages award.

This assignment lacks merit.

General Damages – Mario Jacobs

In its assignments regarding the trial court‟s award of damages to Mario,

State Farm observes that Mario had a work-related back condition prior to the

subject accident, had undergone two back surgeries, and was an ongoing pain

management patient of Dr. Michael Dole. With regard to general damages, State

Farm suggests that Mario did not inform Dr. Dole of the subject car accident,

which “establishes that [he] did not have any significant pain because of this

accident.” It argues that, at most, the trial court should have compensated Mario

for a six-month increase in pain. It suggests that jurisprudence indicates that the

highest reasonable award would be approximately $18,000.00 rather than the

$32,500.00 awarded by the trial court.

15

We find no merit in State Farm‟s argument as to the award of general

damages. Undoubtedly, the record establishes that Mario was a pre-existing pain

patient. 8 Dr. Dole testified that when he began treating Mario in April 2012, his

impression of Mario‟s condition was low back pain with radiculopathy. He

explained that he felt that Mario suffered from chronic pain syndrome with opioid

dependence. He prescribed narcotics for management of the associated pain.

After the present accident, however, Mario began treatment with Dr. Dixie

Clement, upon referral from Mario‟s attorney. Dr. Clement, qualified as an expert

in family practice, explained that she first treated Mario on November 30, 2013

and that he reported neck pain, left leg pain, upper, mid and low back pain. She

noted that he was in mild distress and that he had an abnormal gait. Dr. Clement

testified that she identified spasm in both the neck and back, as well as “tenderness

palpation mid-line in his lower lumbar and his bi-lateral sacral iliac joints.” Dr.

Clement confirmed that Mario reported his earlier surgeries to her as well as Dr.

Dole‟s involvement. Dr. Clement explained that she felt that Mario had suffered

an aggravation or exacerbation of the pre-existing injuries. Additionally, because

of Dr. Dole‟s involvement, she explained that she felt that her role was to treat

injuries from the subject accident, whereas Dr. Dole treated Mario for the chronic

pre-existing low back pain. Dr. Clement explained that her office immediately

notified Dr. Dole‟s office, via fax, of her treatment of Mario and that he was

thereafter kept apprized. During the course of her treatment, through September

2015, Dr. Clement continued to note objective findings, including spasm and

decreased range of motion. She treated Mario‟s complaints, in part, with cortisone

8
Mario explained that before the accident, he “had two open back surgeries with the rod and
screws.” After the subject accident, he underwent two additional surgeries for the placement of
stimulators.

16

injections. She maintained her diagnosis of a “neck pain/whiplash injury” and

“mid-back pain as well or thoracic pain.” She related those injuries to the subject

accident.

Mario also testified as to an aggravation of his pre-existing injuries for

which he was seeking treatment from Dr. Dole. He explained that, before the

accident, his condition had been improving. However, since the accident, he

explained that he “feel[s] it now” and that he “felt it then too after that impact.”

He further testified that the neck and shoulder injuries were new.

Acknowledging the continuation of pain management treatment by Dr. Dole,

Mario explained that he felt that Dr. Dole and Dr. Clement worked together. He

stated that: “She treated me with [sic] for my neck and Dr. Dole continued with

the back and she gave Cortisone shot[s] when I needed it.” Mario explained that,

at the time of trial, he was “still dealing” with the pain in his neck and shoulders.

He described the pain as “a burning, burning sensation.” When asked whether it

was similar to the pre-existing back pain, Mario stated that it “is a hurting pain but

it burns.” He noted that the pain is more intense at night and that it disturbs his

sleep. Mario confirmed that the injury to his neck and shoulder, as well as the

aggravation of his back injury had disrupted his daily life.

In ruling, the trial court noted Dr. Clement‟s attempted coordination of care

with Dr. Dole and recognized that she testified regarding her treatment of areas

“relevant to this accident,” including an exacerbation of prior lower back and leg

pain. The trial court further pointed to Dr. Dole‟s deposition wherein he explained

that he did not have any reports from Mario regarding neck complaints that pre-

existed the November 2013 accident as corroboration of Mario‟s assertion that the

neck and shoulder pain began at that time. The trial court determined that, in all,

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Mario treated with Dr. Clement for twenty-two months in fashioning its award of

$35,200.00.

After review, we find no abuse of discretion in the trial court‟s award in that

regard. Rather, Mario plainly explained the difference in his injuries before and

after this accident. In addition to the aggravation of back symptoms that he

described, he further began treatment for a new onset of both neck and shoulder

pain. Dr. Clement identified objective signs of associated injury and provided

repeated injections for those conditions. Despite those treatments, and despite the

almost two years of treatment recognized by the trial court, Mario explained at trial

that he continued to have pain from the accident-related injuries. We find that

these circumstances, credited by the trial court, provide a reasonable basis for the

trial court‟s award.

This assignment lacks merit.

Medical Expenses – Mario Jacobs

Again noting Dr. Dole‟s prior treatment of Mario, State Farm also

challenges the trial court‟s award of $4,170.73 for pharmacy bills. State Farm

notes that Dr. Dole had prescribed both oxycodone and Percocet before the

November 2013 accident. Due to this pre-existing need, State Farm asserts that

Mario did not establish that “the pharmacy bills would not have been incurred „but

for‟ the accident of November 8, 2013.” It argues that, “[t]o the contrary, Dr.

Dole‟s testimony undisputedly shows the pharmacy bills would have been incurred

regardless of whether or not plaintiff was involved in the accident with Ms.

Decuir.”

After review, we find a reasonable basis for the trial court‟s award of those

prescription charges. Simply, as referenced above, the trial court credited Dr.

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Clement‟s explanation that she coordinated her care with that offered by Dr. Dole.

As the latter physician had an ongoing relationship with Mario for pain

management and that pain medications were administered through him, Dr.

Clement explained that she did not separately address the need for pain medication.

However, her testimony was clear that the subject accident aggravated/exacerbated

the underlying injuries and, additionally, produced separate injuries for which she

provided treatment. While State Farm suggests that Mario‟s pharmacy needs

would have remained the same without the new injuries, there is no testimony to

that regard. As such, State Farm‟s argument is conclusory and assumes facts not in

evidence. Rather, the record reflects that he had pre-existing injuries, he suffered

an aggravation of those injuries as well as new injuries which Dr. Clement

attributed to this accident, and that he incurred medication costs at that time.

Notably, Dr. Dole explained that his records indicated that Mario had not

complained of neck pain before the subject accident, but that he did complain of

neck pain during his December 2013 visit. Given this factual basis, we find no

clear error in the trial court‟s assessment of special damages for Mario‟s

prescription costs.

This assignment of error lacks merit.

Uninsured Motorist

As a final matter, we address State Farm‟s assertion that the trial court erred

in failing to reduce Sandalon‟s recovery by operation of La.R.S. 32:866 as he

acknowledged that he did not carry liability insurance on his truck involved in the

accident. The trial court denied State Farm‟s request in this regard, first finding

that the truck “was not a functioning vehicle at the time that this [] happened.” It

further explained that: “The ignition key was turned on but that was I think to

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make the steering and the brakes operate. It was being [sic] it did have a driver,

Plaintiff, Sandalon Jacobs.” In turn, the trial court referenced jurisprudence

determining the inapplicability of La.R.S. 32:866 to parked vehicles and found the

present matter analogous. See, e.g., Rogers v. Commercial Union Ins. Co., 01-443

(La.App. 3 Cir. 10/3/01), 796 So.2d 862; Gibbs v. State Farm Mut. Auto. Ins. Co.,

99-1242 (La.App. 4 Cir. 10/13/99), 746 So.2d 685, writ denied, 99-3234 (La.

1/14/00), 753 So.2d 220. The trial court explained that La.R.S. 32:866 “was not

intended to deprive the owners of vehicles who were [sic] that are not operational

of the right to recover damages especially under these limited facts and

circumstances.” On review, however, we find error in the trial court‟s

interpretation in this regard.

Louisiana Revised Statutes 32:866 provides, in pertinent part:

A. (1) There shall be no recovery for the first fifteen thousand
dollars of bodily injury and no recovery for the first twenty-five
thousand dollars of property damage based on any cause or right of
action arising out of a motor vehicle accident, for such injury or
damages occasioned by an owner or operator of a motor vehicle
involved in such accident who fails to own or maintain compulsory
motor vehicle liability security.

(Emphasis added.) By its wording, La.R.S. 32:866 references damages

“occasioned” 9 by an “owner or operator of a motor vehicle involved in such

accident.” (Emphasis added.) Louisiana Revised Statutes 32:851 defines these

separate terms as:

(8) “Operator” means every person who is in actual physical
control of a motor vehicle.

9
The supreme court has explained that La.R.S. 32:866‟s use of “occasioned by” means “suffered
by” rather than “caused by[.]” See Progressive Sec. Ins. Co. v. Foster, 97-2985, p. 16 (La.
4/23/98), 711 So.2d 675, 685.

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(9) “Owner” means every person who holds the legal title to
a motor vehicle or in the event a motor vehicle is the subject of an
agreement for the conditional sale, lease, or transfer of the possession,
however, thereof, with the right of purchase upon performance of the
condition stated in the agreement and with an immediate right of
possession vested in the conditional vendee, lessee, possessor, or in
the event such or similar transaction is had by means of a mortgage,
and the mortgagor of a vehicle is entitled to possession, then such
conditional vendee, lessee, possessor, or mortgagor shall be deemed
the owner for the purpose of this Chapter.

We first note that La.R.S. 32:866 applies to “an owner or operator of a

motor vehicle[.]” (Emphasis added.) The record indicates that Sandalon “owned”

the truck that he was occupying as he testified that he held the title. See La.R.S.

32:851(9). Thus, applying the clear and unambiguous wording of the statute, the

limitation of recovery provisions of La.R.S. 32:866(A)(1) are applicable in this

case. See La.R.S. 1:4 (“When the wording of a Section is clear and free of

ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its

spirit.”). See also La.Civ.Code art. 9 (“When a law is clear and unambiguous and

its application does not lead to absurd consequences, the law shall be applied as

written and no further interpretation may be made in search of the intent of the

legislature.”).

Further, Sandalon‟s testimony suggests that he was also the “operator” of the

truck as, at least to some extent, he exercised “actual physical control” of the

vehicle. See La.R.S. 32:851(9). Despite the fact that it was attached by tow rope

to Mr. Sampson‟s vehicle and the engine was not engaged, Sandalon explained that

he had turned “the key on” “[t]o get brakes.” He further testified that throughout

the trip, he applied the brakes to slow the vehicle and that he was able to stop at

stop signs along the way. Although he applied his brakes, he was not, of course,

able to avoid the accident at issue.

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Additionally, Sandalon‟s control of the vehicle must be viewed differently

from those cases involving parked vehicles where the courts have found that the

legislative intent of La.R.S. 32:866 would not be carried out by its application to

the particular circumstances before them. See Rogers, 796 So.2d 862 (wherein a

panel of this court considered a case in which an uninsured, but unoccupied vehicle

was hit by another car while parked inside of a private parking lot); Gibbs, 746

So.2d 685 (a writ ruling wherein the fourth circuit maintained a trial court‟s refusal

to apply La.R.S. 32:866 to limit an uninsured owner‟s claim for damage sustained

to an unoccupied, parked vehicle). Obviously, both unoccupied vehicle cases

involved only property damages, not bodily injury.

Furthermore, neither Rogers nor Gibbs involved factual situations in which

the owner was also an “operator,” at least to some extent, as they were both

unoccupied. In Rogers, 796 So.2d at 865, the panel reasoned that the purpose of

La.R.S. 32:866 is “to discourage the operation of uninsured vehicles” and,

therefore, the application of the statute “to parked vehicles would not accomplish

the purpose. Likewise, the statute is not intended to deprive owners of parked

vehicles of the right to recover property damage.” (Emphasis added.)10

The present case is not analogous. Rather, Sandalon was an owner, and he

exercised at least some actual control over the vehicle so as to be viewed as its

operator in some limited sense. Additionally, Sandalon does not present a claim

for property damages sustained by an unoccupied vehicle. Rather, he seeks

damages for bodily injury sustained while occupying the vehicle.

10
Additionally, subsequent to the accidents at issue in both Rogers and Gibbs, La.R.S. 32:866(H)
was amended and presently provides that: “The provisions of this Part shall not apply to any
vehicle which is legally parked at the time of the accident.”

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Given the facts of this case and the clear and unambiguous wording of

La.R.S. 32:866, we find that the trial court erred in its determination that La.R.S.

32:866 was inapplicable to the present case. Accordingly, we reverse that aspect

of the trial court‟s ruling and, on remand, instruct the trial court to amend the

judgment to reflect Sandalon‟s inability to recover “for the first fifteen thousand

dollars of bodily injury” per La.R.S. 32:866(A)(1).

DECREE

For the foregoing reasons, the judgment is affirmed to the extent it found

fault on the part of Florence Decuir and David Sampson. Although the judgment is

further affirmed as to the measure of damages incurred by Sandalon Jacobs and

Mario Jacobs, the judgment is reversed to the extent it cast Ms. Decuir and State

Farm Mutual Automobile Insurance Company in judgment for sums previously

reduced by the erroneous allocation of fault.

Judgment is hereby rendered, allocating fault for causing the accident of

November 8, 2013 as follows: Florence Decuir (40%); David Sampson (30%); and

Sandalon Jacobs (30%). This matter is remanded to the trial court with

instructions to reform the judgment to cast Florence Decuir and State Farm in

judgment for sums reflecting the amended apportionment of fault and the

application of La.R.S. 32:866(A)(1) to limit Sandalon Jacob‟s recovery “for the

first fifteen thousand dollars of bodily injury[.]” Costs of this proceeding are

assessed equally to plaintiff-appellee Sandalon Jacobs and defendant-appellant

State Farm Mutual Automobile Insurance Company.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH
INSTRUCTIONS.

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