Jude K. Menard v. Dr. John Stroy

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-609

JUDE K. MENARD

VERSUS

DR. JOHN STROY, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2004-0649-I
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Billy H. Ezell, and D. Kent Savoie, Judges.

AFFIRMED.

Kenneth W. DeJean
Adam R. Credeur
Law Offices of Kenneth W. DeJean
P. O. Box 4325
Lafayette, LA 70502
(337) 235-5294
COUNSEL FOR PLAINTIFF/APPELLANT:
Jude K. Menard

Brent E. Kinchen
Kinchen, Walker, Bienvenu, Bargas, Reed & Helm, L.L.C.
9456 Jefferson Highway
Building III, Suite F
Baton Rouge, LA 70809
(225) 292-6704
COUNSEL FOR DEFENDANT/APPELLEE:
Shelter Mutual Insurance Company

Thomas Robert Shelton
Shelton Law Firm
P. O. Drawer 52548
Lafayette, LA 70505
(337) 237-3000
COUNSEL FOR DEFENDANT/APPELLEE:
Dr. John Stroy

SAUNDERS, J.

This personal injury suit arises out of an incident where Plaintiff’s wrist was

injured by Defendant when Defendant grabbed a sheet of paper from Plaintiff’s

hand. Plaintiff was subsequently diagnosed with De Quervain’s tendinitis, received

treatment, and still suffers from pain. Plaintiff was awarded $3,000.00 in general

damages and $3,048.00 in special damages. Plaintiff was denied reimbursement for

a 2004 medical bill in the sum of $220.00. Plaintiff appeals the amount of general

damages as well as the denial of the 2004 medical bill.

FACTS AND PROCEDURAL HISTORY:

Jude K. Menard, hereinafter “Plaintiff,” was employed by Lafayette Motors

as a service advisor on the day of the incident on August 29, 2003. Dr. John Stroy,

hereinafter “Defendant,” arrived at Lafayette Motors the morning of August 29,

2003, and asked Plaintiff for a copy of a repair estimate that had been previously

prepared for Defendant’s wife’s vehicle. This estimate was previously rejected by

Defendant’s wife.

Plaintiff went to make a copy of the estimate. While he was making a copy,

Buddy Delahoussaye, the service and shop manager was speaking to Defendant.

Mr. Delahoussaye instructed Plaintiff not to give the copy of the estimate to

Defendant. Plaintiff crumpled the estimate to throw it in the trash. Defendant then

grabbed the estimate out of Plaintiff’s hand and twisted his right wrist in the

process. Defendant left the premises with the copy of the estimate.

Plaintiff suffered injuries to his wrist and arm, and he was later diagnosed

with De Quervain’s tendinitis by an orthopedic surgeon. An expert witness

obtained by Defendant also confirmed this diagnosis. On April 10, 2012, several

years after the incident, Plaintiff testified that he still suffered pain in his wrist.

On February 10, 2004, Plaintiff filed an Original Petition for Damages

against Defendant alleging that the actions of Defendant were the proximate cause

of his injuries, as well as the medical bills incurred in light of the injury. Defendant

filed an Answer and a Reconventional Demand on February 26, 2004, which

contained allegations that Plaintiff had made defamatory and slanderous public

statements against Defendant that caused Defendant to suffer embarrassment,

humiliation, and mental anguish. On or about March 23, 2006, Plaintiff filed a

Motion to Strike and/or Dismiss the Reconventional Demand, which was granted

on February 21, 2008, by virtue of a judgment. Plaintiff then filed a First

Supplemental and Amending Petition naming Shelter Mutual Insurance Company,

Defendant’s homeowner’s insurer, as an additional defendant in the suit. Shelter

Mutual Insurance Company filed an Answer to this petition pleading that, despite

issuing a homeowner’s insurance to Defendant, this policy did not provide

coverage for the incident that occurred between Plaintiff and Defendant. Shelter

Mutual Insurance Company filed a Motion for Summary Judgment on October 1,

2012, which was denied.

A bench trial was held on November 24, 2014. The trial court found in favor

of Plaintiff, on the issue of liability against the Defendants, and the court awarded

Plaintiff general damages in the amount of $3,000.00. The trial court denied the

application of the intentional acts exclusion raised by Shelter Mutual Insurance

Company. The trial court also awarded Plaintiff special damages for the medical

expenses from August 2003 to November 2003 in the amount of $3,048.00. The

trial court denied reimbursement for the March 2004 medical bill in the sum of

$220.00.

The Reasons for Ruling were signed on January 20, 2015, and a final

judgment was entered on April 12, 2016.
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ASSIGNMENTS OF ERROR:

1. The trial court abused its discretion by awarding $3,000.00 in general
damages to Plaintiff, as this is an inadequate award given the evidence
and facts.
2. The trial court’s determination that Plaintiff’s medical treatment on
March 9, 2004 did not relate back to the incident and the court’s denial of
medical expenses associated with this treatment was an abuse of
discretion and/or manifestly erroneous as it is contrary to the evidence
and facts.

STANDARD OF REVIEW:

Vast discretion is accorded the trier of fact in fixing general damage awards.

La.Civ.Code art. 2324.1; Hollenbeck v. Oceaneering Int., Inc., 96-0377, p. 13

(La.App. 1 Cir. 11/8/96); 685 So.2d 163, writ denied, 97-493 (La. 4/4/97),692

So.2d 421. This vast discretion is such that an appellate court should rarely disturb

an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257

(La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059. Thus, the role of the

appellate court in reviewing general damage awards is not to decide what it

considers to be an appropriate award, but rather to review the exercise of discretion

by the trier of fact. Id.

“Factual findings of a trial court are reviewed under the manifest error-

clearly wrong standard of review.” Thibodeaux v. Comeaux, 11-27, p. 5 (La.App. 3

Cir. 6/15/11), 69 So.3d 674, 679 (citing Fontenot v. Patterson Ins., 09-669 (La.

10/20/09), 23 So.3d 259). An appellate court may not disturb a finding of fact

unless the record establishes that a factual, reasonable basis does not exist and the

finding is clearly wrong or manifestly erroneous. Id.

DISCUSSION OF THE MERITS:

In his first assignment of error, Plaintiff contends the trial court abused its

discretion by awarding $3,000.00 in general damages to Plaintiff.

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“Vast discretion is accorded the trier of fact in fixing general damage

awards.” Stelly v. Zurich American Ins. Co., 11-1144, p.3 (La.App. 3 Cir. 2/1/12);

83 So.3d 1225, 1228 (citations omitted).

Reasonable persons frequently disagree about the measure of
general damages in a particular case. It is only when the award is, in
either direction, beyond that which a reasonable trier of fact could
assess for the effects of the particular injury to the particular plaintiff
under the particular circumstances that the appellate court should
increase or decrease the award.
Id. at 1228 (quoting Youn, 623 So.2d at 1261).

“The initial inquiry, in reviewing an award of general damages, is whether

the trier of fact abused its discretion in assessing the amount of damages. Cone v.

National Emergency Serv. Inc., 99-0934 (La.10/29/99), 747 So.2d 1085, 1089;

Reck v. Stevens, 373 So.2d 498 (La.1979).” Id. (quoting Duncan v. Kansas City S.

Ry. Co., 00-66 (La. 10/30/00), 773 So.2d 670, 682–83).

Plaintiff testified that Defendant grabbed his shoulder, spun him around, and

grabbed his wrist and hand with both of his hands and twisted Plaintiff’s wrist until

he let go of the car repair estimate. Several witnesses were called, and their

versions differed; one witness claimed Defendant grabbed Plaintiff’s hand causing

him to turn, and another testified that Defendant tried to grab the estimate from

behind Plaintiff. Defendant himself testified that he was just standing close to

Plaintiff and did not have any physical contact with him.

Plaintiff testified that he began to feel sharp pains in his wrist the day of the

incident. Two days after the incident, Plaintiff went to the emergency room for the

pain and was referred to an orthopedist. He had three visits with the orthopedist

over the course of seven months, and Plaintiff was told after the third visit he

should return on an as-needed basis and was released to full-duty status. Plaintiff

did not appear for his next two scheduled visits with the orthopedist and did not

seek any further treatment.
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Plaintiff testified that he experienced daily wrist pain for the first six months

following the incident and then the pain would “come and go.” Plaintiff

sporadically used several prescriptions, often waiting several days, weeks, and

months to refill them. Ultimately, the trial court did not find that Plaintiff suffered

significant injuries. We agree.

After considering the nature and extent of Plaintiff’s injuries along with the

treatment plan and its duration, we cannot say the trial court erred in its general

damage award of $3,000.00. A reasonable trier of fact could have ascertained this

amount based on the facts before it and especially in light of the vast discretion

afforded the trier of fact. The trial court found that the suit before us rested on the

issues of credibility and its belief that Plaintiff did not suffer significant injuries to

afford him a higher general damages award.

In his second assignment of error, Plaintiff contends the trial court’s

determination that Plaintiff’s medical treatment on March 9, 2004, did not relate

back to the incident, and the court’s denial of medical expenses totaling $220.00

associated with this treatment was an abuse of discretion and/or manifestly

erroneous as it is contrary to the evidence and facts.

Plaintiff argues that the November 11, 2003 doctor’s visit and the March 9,

2004 doctor’s visit are clearly related to and resulted from the original incident

between Plaintiff and Defendant when the wrist injury occurred. While this

appears to be plausible considering the timeline and medical treatment sought, the

trial court found that “the lapse between these visits is too tenuous to relate back to

the paper pulling incident.” Considering the vast discretion afforded to the trial

court as trier of fact, we cannot say this determination was manifestly erroneous.

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DISPOSITION:

Plaintiff, Jude K. Menard, raised two assignments of error. For the foregoing

reasons, we affirm the trial court’s judgment and assess all costs of this appeal to

Plaintiff.

AFFIRMED.

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