Giles Hill v. State Farm Mutual Auto. Ins. Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-395

GILES HILL

VERSUS

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY, ET AL.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2017-6842
HONORABLE JULES D. EDWARDS, DISTRICT JUDGE

**********

PHYLLIS M. KEATY
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and
D. Kent Savoie, Judges.

AFFIRMED AS AMENDED.

David O. Way
Kenny L. Oliver
Oliver & Way, L.L.C.
Post Office Box 82447
Lafayette, Louisiana 70598-2447
(337) 988-3500
Counsel for Defendants/Appellees:
State Farm Mutual Automobile Insurance Company
Sabrina Davis

Jerome H. Moroux
Broussard & David, LLC
Post Office Box 3524
Lafayette, Louisiana 70502-3524
(337) 233-2323
Counsel for Plaintiff/Appellant:
Giles Hill

KEATY, Judge.

Plaintiff appeals the trial court’s judgment regarding allocation of fault and

general damages. For the following reasons, the trial court’s judgment is affirmed

as amended.

FACTS & PROCEDURAL HISTORY

This personal injury lawsuit involves an automobile collision which

occurred in Broussard, Louisiana, between a left turning vehicle and another

vehicle that was attempting to pass. On January 5, 2017, Giles Hill was driving a

Dodge truck east on Louisiana Highway 92 (Young Street) near the intersection of

Marteau Road. As he proceeded east, Hill approached from the rear a Jeep Grand

Cherokee driven by Sabrina Davis. As Hill attempted to pass Davis’s vehicle from

the left side, Davis attempted to make a left turn onto Marteau Road. A collision

occurred between both vehicles.

On November 27, 2017, Hill filed a petition for damages seeking medical

expenses and damages for pain and suffering, loss of enjoyment of life, loss of

earnings, and loss of earning capacity. Plaintiff’s petition named as Defendants

Davis and State Farm Mutual Automobile Insurance Company, as the insurer of

the vehicle driven by Davis. He alleged that the collision occurred because Davis

failed to maintain a proper lookout, failed to remain attentive, operated her vehicle

in a careless and reckless fashion, and operated her vehicle at an unsafe speed. As

a result, Plaintiff alleged that he sustained injuries to his left hand, neck, upper

back, and lower back.

On February 19, 2019, a bench trial on the merits occurred. The trial court

was tasked with determining: (1) whether the accident occurred within a legal

passing zone; (2) whether Hill had control of the passing lane at the time of the

accident; (3) whether Davis, when making the left turn, failed to observe Hill

passing; and (4) whether the accident caused Hill’s injuries. The trial court

discussed the duties imposed on a left turning driver as well as a passing driver, i.e.,

La.R.S. 32:104, La.R.S. 32:75, and La.R.S. 32:76. It determined that Hill and

Davis violated the applicable statutes. The trial court considered the totality of the

circumstances and found the parties contributorily negligent in causing the

accident. It allocated 95% of the fault to Hill and 5% of the fault to Davis.

The trial court next considered the medical evidence presented at trial and

concluded that the accident caused Hill’s injuries. It awarded him $18,720.38,

which was broken down as follows:

General Damages $2,000.00

Past Lost Wages $6,400.00

Past Medical Expenses $10,320.38

The award was reduced by 95% for a total award of $936.02. Costs were assessed

to the parties based upon their allocation of fault. The trial court’s judgment was

signed on February 22, 2019.

Hill appeals the trial court’s judgment and alleges the following assignments

of error: (1) “The trial court erred in allocating fault in the manner between the

parties[;]” and (2) “The trial court abused its discretion in awarding only $2,000.00

in general damages for the injuries Hill sustained and for the treatment Hill

obtained as a result of the accident.”

STANDARD OF REVIEW

In Duncan v. Kansas City Southern Railway Co., 00-66, pp. 10-11 (La.

10/30/00), 773 So.2d 670, 680-81, the Louisiana Supreme Court explained the

standard of review regarding comparative fault determinations as follows:

As with other factual determinations, the trier of fact is vested with
much discretion in its allocation of fault. [Clement v. Frey, 95-1119
(La. 1/16/96), 666 So.2d 607]. Therefore, an appellate court should
2

only disturb the trier of fact’s allocation of fault when it is clearly
wrong or manifestly erroneous. Only after making a determination
that the trier of fact’s apportionment of fault is clearly wrong can an
appellate court disturb the award, and then only to the extent of
lowering it or raising it to the highest or lowest point respectively
which is reasonably within the trial court’s discretion. Clement, 666
So.2d at 611; Coco v. Winston Industries, Inc., 341 So.2d 332, 335
(La.1977).

In determining whether the trial court was clearly wrong in its allocation of

fault, the appellate court is guided by the following factors set forth in Watson v.

State Farm Fire & Casualty Insurance Co., 469 So.2d 967, 974 (La.1985):

(1) [W]hether 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. And, of course, as evidenced by
concepts such as last clear chance, the relationship between the
fault/negligent conduct and the harm to the plaintiff are considerations
in determining the relative fault of the parties.

These same factors guide the appellate court’s decision with respect to the highest

or lowest percentage of fault that could reasonably be assessed. Clement, 666

So.2d 607.

DISCUSSION

I. Allocation of Fault

In his first assignment of error, Hill contends the trial court failed to properly

allocate fault in light of the facts in the case. He asserts the following factors as

grounds for changing the trial court’s erroneous allocation of fault: the roadway

was marked with a broken yellow line; Davis was aware that vehicles regularly

passed other vehicles; Davis breached the duty owed by a left turning vehicle; and

Davis admitted that she violated the law requiring her to signal her intention to turn

within 100 feet of the turn.

3

In opposition, Defendants contend that Hill violated the statute which

mandates no passing within 100 feet of an intersection. Defendants opine that the

trial court’s finding on liability should not be disturbed given Hill’s lack of

credibility. Defendants further assert that if the roadway striping was really an

issue, Hill should have added the responsible party as a defendant.

In Louisiana, a “left-turning motorist and the overtaking and passing

motorist must exercise a high degree of care because they are engaged in

dangerous maneuvers.” Kilpatrick v. Alliance Cas. & Reinsurance Co., 95-17, p. 4

(La.App. 3 Cir. 7/5/95), 663 So.2d 62, 66, writ denied, 95-2018 (La. 11/17/95),

664 So.2d 406. The duty of a left turning motorist is governed by La.R.S. 32:104

which provides, in pertinent part:

A. No person shall turn a vehicle at an intersection unless
the vehicle is in proper position upon the roadway as required in R.S.
32:101, or turn a vehicle to enter a private road or driveway, or
otherwise turn a vehicle from a direct course or move right or left
upon a roadway unless and until such movement can be made with
reasonable safety.

B. Whenever a person intends to make a right or left turn
which will take his vehicle from the highway it is then traveling, he
shall give a signal of such intention in the manner described hereafter
and such signal shall be given continuously during not less than the
last one hundred (100) feet traveled by the vehicle before turning.

Pursuant to this article, a left turn is a dangerous maneuver which cannot be

undertaken unless the turning driver ascertains that it can be safely made.

Layssard v. State of Louisiana, Dep’t of Pub. Safety & Corrs., 07-78 (La.App. 3

Cir. 8/8/07), 963 So.2d 1053, writ denied, 07-1821 (La. 11/9/07), 967 So.2d 511.

“A left-turning motorist involved in an accident is burdened with a presumption of

liability and the motorist must show that he is free from negligence.” Id. at 1059

(quoting Thomas v. Champion Ins. Co., 603 So.2d 765, 767 (La.App. 3 Cir. 1992)).

“The onerous burden placed upon a left-turning motorist is not discharged by the

4

mere signaling of an intention to turn.” Kilpatrick, 663 So.2d at 66. The giving of

a signal is immaterial if the left-turning motorist did not have the opportunity to

safely make the turn. Id. Additionally, “in a vehicular collision case, the plaintiff

may take advantage of a presumption of the defendant’s negligence when the

plaintiff proves the defendant executed a left-hand turn and crossed the center line

at the time of impact.” Id. at 66.

The duty of a vehicle passing on the left is governed by La.R.S. 32:73,

which provides:

The following rules shall govern the overtaking and passing of
vehicles proceeding in the same direction, subject to those limitations,
exceptions, and special rules hereinafter stated:

(1) Except when overtaking and passing on the right is
permitted, the driver of a vehicle overtaking another vehicle
proceeding in the same direction shall pass to the left thereof at a safe
distance, and shall not again drive to the right side of the roadway
until safely clear of the overtaken vehicle.

(2) Except when overtaking and passing on the right is
permitted, the driver of an overtaken vehicle shall give way to the
right in favor of the overtaking vehicle on audible signal, and shall not
increase the speed of his vehicle until completely passed by the
overtaking vehicle.

There are certain limitation on a vehicle passing to the left, as noted in

La.R.S. 32:75:

No vehicle shall be driven to the left side of the center of the
highway in overtaking and passing another vehicle proceeding in the
same direction unless such left side is clearly visible and is free of
oncoming traffic for a sufficient distance ahead to permit such
overtaking and passing to be completely made without interfering
with the safe operation of any vehicle approaching from the opposite
direction or any vehicle overtaken. In every event the overtaking
vehicle must return to the right-hand side of the roadway before
coming within one hundred feet of any vehicle approaching from the
opposite direction.

From the outset, we note that the trial court was presented with witness

testimony, medical records, and other evidence regarding the accident. At trial,

5

Hill testified that the accident occurred at approximately 6:45 a.m. on Young Street,

which he described as a two-lane road with a dotted yellow line with a speed limit

of fifty-five miles per hour. He explained that two vehicles ahead of him were

traveling at approximately forty miles per hour. Hill believed that he would have

been late for work if he remained behind the two vehicles. In his statement given

to police, Hill stated that he “was running late to work.” He testified that he

checked his mirror, checked over his left shoulder, then “got into the left lane and

proceeded to go towards Highway 90 where [he] ended up hitting, colliding with

[Davis]; hit the ditch pretty hard, bounced around until [he] kind of nosedived to

[his] stopping point.” His vehicle flew approximately 280 feet before landing in

the ditch, according to Hill’s testimony. The police report in the record explains

that Hill passed an eastbound vehicle uninvolved in the crash and began to pass

Davis’s vehicle when the accident occurred. Hill testified that before he started

passing the two vehicles, their brake lights were not illuminated. According to his

testimony, Hill did not exceed the speed limit when passing the other vehicles.

Hill acknowledged walking over to Davis’s vehicle after the accident and

apologizing to her.

According to Davis’s trial testimony, she was traveling eastbound on Young

Street and planned on turning onto Marteau Road. Before executing the left turn,

she stopped at the intersection of Marteau Road to let a vehicle pass in the opposite

direction. Davis activated her blinker by the time she had stopped at the

intersection although she was uncertain as to whether she activated her blinker 100

feet prior to executing the turn. Davis explained that after the car passed from the

opposite direction, she looked behind her to see if there was anyone passing so that

she could make a left turn. According to Davis, she never saw Hill’s vehicle

before she began to turn. She saw Hill’s vehicle after the crash. Davis
6

acknowledged the police report wherein she reported that there was a car

immediately behind her. She explained that car was not the same car that struck

her. Davis testified that following the accident, Hill “came up, he said he was sorry,

it was all his fault, he was running late for work, he was speeding; asked if I was

okay.” Davis testified that she was familiar with Young Street and knew that

vehicles passed other vehicles.

Monica Gary, who witnessed the accident, also testified at trial. Gary was

on Marteau Road at the stop sign waiting to cross over Young Street onto the other

end of Marteau Road. She saw a white Jeep Cherokee stopped at the intersection

waiting to make a left turn onto Marteau Road with its blinker light on. She only

saw the truck right before it hit the Jeep; not before when the truck started to pass.

Gary opined that the truck was at least traveling the speed limit. Gary, who exited

her vehicle following the crash to check on the victims, said that the driver of the

truck “walked up after the crash, had a little bit of a bloody nose, and told [Davis]

‘I’m so sorry. It’s my fault. I was running late for work.’”

The trial court was also presented with the deposition testimony of Sergeant

Christopher Rudd, the investigating officer. He concluded that Davis’s violation

was “other improper turning” based upon statements from Hill, Davis, and Gary.

Sergeant Rudd explained that “from what everyone on the scene described, [Hill’s

vehicle] was already in the left lane passing vehicles.” He revealed that Hill’s

vehicle “already had control of that travel lane because it was a dotted line in that

section of roadway.” Sergeant Rudd acknowledged Hill had control of the passing

lane at the time of the accident. According to Sergeant Rudd, Davis was

inattentive because she failed to observe Hill’s vehicle approaching and attempting

to pass. On the other hand, Sergeant Rudd did not cite Hill with any violations.

He explained that the road had a yellow dashed line. Sergeant Rudd acknowledged
7

that if the road was a no passing zone, he would have noted that in his police report.

His testimony is confirmed by the police report which was also entered into

evidence. The police report lists Hill’s speed as fifty-five miles per hour. Sergeant

Rudd’s narrative in the police report provides that Hill “was passing in an area

clearly marked as a passing zone, as indicated by a yellow dashed line in the center

of the roadway.”

Despite the presence of a yellow dotted line, the trial court found Hill in

violation of La.R.S. 32:76 which provides, in pertinent part:

A. No vehicle shall at any time be driven to the left side of
the highway under the following conditions:

....

(2) when approaching within one hundred feet of or traversing
any intersection or railroad grade crossing;

....

B. The foregoing limitations shall not apply upon a one-way
roadway or a multiple lane highway nor to the driver of a vehicle
turning left into or from an alley, private road or driveway.

In brief, State Farm contends that La.R.S. 32:76 supports the trial court’s

allocation of fault since the accident occurred within 100 feet of an intersection.

On review, we note that Louisiana jurisprudence has held this statute inapplicable

with respect to contributory negligence when the presence of a dotted line is

indicated and there are no signs indicating a “no passing zone.” In Williams v.

Travelers Indemnity Co., 49,961 (La.App. 2 Cir. 7/22/15), 171 So.3d 436, the

driver of a left turning tractor (plaintiff) filed a petition for damages against a

deputy sheriff (defendant) and its insurer following a collision that occurred when

the tractor turned left while the defendant was passing the tractor. The trial court

ruled in favor of the defendant. On appeal, the plaintiff argued that the defendant

should have been assessed with fault because he attempted to pass the tractor
8

within 100 feet of the intersection in violation of La.R.S. 32:76. The appellate

court disagreed, noting the testimony of the investigating officer that the road

markings consisted of a yellow broken line which indicated that traffic in either

direction was allowed to pass if safe to do so. The appellate court acknowledged

there were no signs indicating the area was a “no passing zone.” It held: “Based

upon the evidence presented, we cannot say the trial court erred in finding that

despite the general statutory prohibition on passing within 100 feet of an

intersection, [the defendant] was not negligent in reasonably relying on the specific

markings in that area of the roadway indicating that passing was allowed.” Id. at

440.

In Guillory v. Travelers Insurance Co., 241 So.2d 772 (La.App. 3 Cir. 1970),

the plaintiff driver attempted to take a left turn and collided with the defendant

driver who was attempting to pass on the left. The trial court found that the

defendant driver was contributorily negligent by passing within 100 feet of an

intersection in violation of La.R.S. 32:76. In affirming the trial court’s judgment,

the appellate court held: “It is true there were no signs marking the intersection

nor any ‘no passing’ lines on Highway 27. However, this is not an absolute

requirement of the statute or the jurisprudence.” Id. at 774.

In this case, the trial court found that Hill violated La.R.S. 32:76 and that

Davis violated the statutes applicable to a left turning driver. The trial court,

however, offered no explanation with respect to its allocation of fault. On review,

the testimony and evidence reveals that Hill was passing the vehicles because he

was going to be late for work. However, there is no definitive evidence showing

that Hill was speeding. The evidence shows that he safely had control of the lane

when passing. The evidence shows that Davis had on her blinker, although she

was unsure whether she initiated the blinker when within 100 feet of the
9

intersection as required by La.R.S. 32:104(B). Davis was cited with a violation of

improper turning and found inattentive whereas Hill was cited with no violations.

It is undisputed that the accident occurred on a two-lane road with a yellow dotted

line. It was not an area clearly marked as a no passing zone. 1 Davis’s own

testimony reveals that she knew motorists regularly passed other motorists given

her familiarity with Young Street. In light of the foregoing, we find that it was

reasonable for Hill to rely on the specific markings in that area of the roadway

indicating passing was allowed. Accordingly, the trial court’s allocation of fault

was manifestly erroneous in this regard.

Specifically, the trial court’s allocation of 95% of the fault against Hill, who

was passing in an area not clearly marked as a no passing zone, was excessive. In

Roberts v. Robicheaux, 04-1405 (La.App. 3 Cir. 3/2/05), 896 So.2d 1232, writ

denied, 05-792 (La. 5/13/05), 902 So.2d 1021, the trial court allocated 50% of the

fault to the driver of the passing vehicle and 50% of the fault to the driver of the

left turning vehicle. The judgment was amended by this court on appeal. The third

circuit held that the passing driver was 75% at fault in causing accident “because

he attempted to pass in a ‘no-passing’ zone,” and the left turning driver was 25%

1
In Trahan v. Deville, 05-1482, p. 4 (La.App. 3 Cir. 5/10/06), 933 So.2d 187, 191, writ
denied, 06-2103 (La. 11/17/06), 942 So.2d 534, this court stated: “[T]he roadway at the accident
site was marked with a dashed yellow line meaning the area was a legal passing zone. Motorists
must be allowed to rely upon traffic markings such as these when operating their vehicles.”

No passing zones are governed by La.R.S. 32:77 which provide:

A. The Department is hereby authorized to determine those portions
of any highway where overtaking and passing or driving to the left of the roadway
would be especially hazardous, and shall by appropriate signs or markings on the
roadway indicate the beginning and end of such zones, and when such signs and
markings are in place and are clearly visible to an ordinary observant person,
every driver shall obey the directions thereof.

B. Where signs or markings are in place to define a no-passing zone
as set forth in paragraph A, no driver shall at any time drive on the left side of the
roadway within such zone, or on the left side of any pavement striping, designated
to mark such no-passing zone, throughout its length.

10

at fault for improper lookout and signalization. Id. at 1235 (emphasis added). This

court noted that the evidence clearly showed the accident occurred in a “no-passing”

zone.

Conversely, the evidence in this case shows that the crash did not occur in a

clearly marked no passing zone. Rather, the evidence reveals the presence of a

yellow dotted line. The evidence also reveals that the crash occurred within 100

feet of an intersection. Accordingly, we amend the judgment to allocate 50% of

the fault to Hill and 50% of the fault to the Davis.

II. Damages

In his second assignment of error, Hill contends the trial court abused its

discretion in awarding only $2,000.00 in general damages for the injuries he

sustained and for the medical treatment he obtained as a result of the accident.

General damages, which include pain and suffering, physical impairment

and disability, and loss of enjoyment of life, are speculative in nature and incapable

of being fixed with mathematical certainty. Thibeaux v. Trotter, 04-482 (La.App.

3 Cir. 9/29/04), 883 So.2d 1128, writ denied, 04-2692 (La. 2/18/05), 896 So.2d 31.

The fact finder’s award of general damages is subject to the abuse of discretion

standard of review. Simon v. Lacoste, 05-550 (La.App. 3 Cir. 12/30/05), 918 So.2d

1102. A general damage award should only be increased or reduced if it is beyond

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

injury to a particular plaintiff under the particular circumstances of the case. Id. In

making that determination, the appellate court should not rely on a comparison of

prior awards in cases with similar medical injuries, but should rely on the primary

considerations of the duration and severity of the plaintiff’s pain and suffering.

Guillot v. Doe, 03-1754 (La.App. 3 Cir. 6/30/04), 879 So.2d 374. If an appellate

court finds that a general damages award is unreasonable, the court should raise or
11

lower the award to the highest or lowest point that would have been within the fact

finder’s discretion. Simon, 918 So.2d 1102.

In this case, the trial court’s award was based upon the testimony and

evidence presented at trial. According to Hill’s testimony at trial, the crash caused

his vehicle to travel approximately 280 feet before landing in the ditch. His

vehicle’s airbags deployed and his windshield was shattered. Hill explained that

his nose was bleeding although he was able to exit his car. He informed the

paramedics that he was fine although he subsequently went to Lafayette General

Medical Center with complaints of pain to his left hand. Medical records reveal

that he underwent an x-ray of his left hand which revealed no fracture or

dislocation. Hill was diagnosed with musculoskeletal pain and prescribed Flexeril

and Norco.

Hill presented to a Youngsville Chiropractic Clinic on January 11, 2017.

According to the medical questionnaire, he had complaints of back pain, stiffness,

and cramps from lifting the wrong way. On the questionnaire, the “Accident

Information” section is scratched out. A medical note from the clinic dated

January 11, 2017, reveals that Hill wanted his insurer, Blue Cross, to pay for his

treatment and did not want to file as a personal injury patient. At trial, Hill

testified that he would have had to pay out of pocket if he indicated that his

symptoms resulted from the accident rather than from lifting the wrong way.

Hill presented to Lourdes After Hours on January 21, 2017, with back pain

arising from a motor vehicle accident. He underwent an x-ray of his lumbar spine

which revealed no fracture nor soft tissue swelling. Hill was discharged and

prescribed Ultram for pain.

The trial court was presented with the medical records and deposition

testimony of Plaintiff’s expert in physical medicine and physiatry, Dr. Robert
12

Franklin. Hill presented to Dr. Franklin on January 30, 2017, with complaints of

neck and lower back pain. During his initial evaluation, it was noted that Hill was

involved in a work-related accident in January 2016 and “got well” by June 2016,

with back pain returning in October or November 2016. Dr. Franklin diagnosed

Hill with cervical and lumbar strain with possible underlying spinal etiology. A

cervical and lumbar MRI was ordered and revealed disc herniation. Dr. Franklin

recommended physical therapy and referred Hill to an orthopedic surgeon for a

spinal consultation. Dr. Franklin noted Hill was temporarily disabled from

employment. Hill’s last appointment with Dr. Franklin was on May 22, 2017.

Medical records reveal that Hill participated in approximately 17 physical therapy

sessions during his treatment with Dr. Franklin.

Medical records reveal that Hill presented to Dr. Neil Romero, an orthopedic

surgeon, on March 15, 2017. Dr. Romero related Hill’s symptoms to the crash and

kept him off of work pending improvement from physical therapy. Hill presented

to Dr. Romero again on April 12, 2017, wherein he noted that Hill had made

significant progress. Dr. Romero noted that Hill felt that he had improved by 90%

with respect to his lumbar and cervical pain. Dr. Romero indicated that Hill

completed physical therapy and released him to work at full duty without

restrictions.

Hill testified that prior to the instant accident, he sought treatment from

Youngsville Chiropractic Clinic in 2016 for back pain arising from a work accident.

Hill testified that he also sought treatment from his friend’s father, Dr. Michael

Smyth, II, for the work-related back pain. Pharmacy records and Hill’s testimony

reveals that he filled three prescriptions for oxycodone-acetaminophen prior to the

accident at issue, as follows: 40 pills on December 5, 2016, 40 pills on December

19, 2016, and 40 pills on December 30, 2016. Hill admitted that he was taking the
13

pills for pain, although he had not consumed all of the pills by the time the instant

accident occurred. Pharmacy records further reveal that Hill filled another

prescription for 40 oxycodone-acetaminophen pills, prescribed by Dr. Smyth, after

the accident on January 11, 2017. Hill testified that he was experiencing back pain

approximately two or three months prior to the accident at issue, although the pain

“wasn’t the [sic] way after the accident.”

Considering the foregoing evidence and testimony, the trial court found that

the accident caused the injury. It awarded Hill $10,320.38 for medical expenses,

which was the amount requested by him. The trial court awarded him $6,400.00

for lost earnings, which was stipulated to by the parties. It also awarded him

$2,000.00 for general damages. Based upon the testimony and medical evidence in

the record on review, we find the trial court abused its discretion in its award of

general damages.

In Moraus v. Frederick, 05-429 (La.App. 3 Cir. 11/2/05), 916 So.2d 474,

this court affirmed the trial court’s award of $46,000.00 in general damages to a

plaintiff who sustained soft tissue injuries from an automobile accident. We note

that Moraus differs from the present case with respect to the amount of time

medical treatment was rendered to the injured plaintiff: i.e., the plaintiff in Moraus

underwent treatment for fifteen months whereas Hill underwent treatment for

approximately four months. We find relevant, however, the Moraus court’s

affirmation of the trial court’s general damages award of “$3,500.00 per month for

the first two months; $2,500.00 per month for September 2003 through September

2004; and $1,000.00 per month for October, November and December of 2004

(through date of trial).” Id. at 481. The appellant argued that the foregoing award,

which averaged out to approximately $2,625.00 per month, was unreasonable. The

Moraus court disagreed with the appellant’s argument, noting that “Moraus was
14

consistent in his treatment and [was] observed by the trial court not to be a

malingerer.” Id. at 481. In this case, and similar to Moraus, there was no finding

that Hill was a malingerer, and the trial court found that all of his medical

treatment was related to the automobile crash.

In Le v. Nitetown, Inc., 10-1239 (La.App. 3 Cir. 7/20/11), 72 So.3d 374, writ

denied, 11-1826 (La. 11/4/11), 75 So.3d 924, a plaintiff was injured by an

aggressive bouncer at a nightclub. The jury awarded the plaintiff $13,000.00 for

pain and suffering and $4,432.35 for mental anguish based upon medical records

which revealed:

Mr. Le’s emergency room examination revealed that one of the
multiple head lacerations indicated that the corner of something had
hit him, possibly a ring, and another looked like a crush-type injury
with some blunt edge also. He had multiple lacerations around his
head with approximately six hematomas to the forehead. His brain
CT was normal, and the CT of facial bones identified no facial
fracture; MRI’s of his left knee and shoulder were negative. Mr. Lee
[sic] had physical therapy and treated with an orthopaedic surgeon for
his shoulder, back, and knee, for about three months.

Id. at 381. This court found the plaintiff’s general damage award abusively low

and increased it to $50,000.00, inclusive of physical pain and suffering and mental

anguish. Id.

In Lebato v. Safeway Insurance Co., 03-131 (La.App. 3 Cir. 6/4/03), 852

So.2d 446, the plaintiff was injured in an automobile collision. The trial court

awarded the plaintiff $20,000.00 in general damages and $1,500.00 for loss of

enjoyment of life. This court upheld the trial court’s award and explained:

The record shows Lebato was under a doctor’s care for two months,
participated in physical therapy during that time, and continued with
exercises at home for another two months. She suffered from pain,
muscle spasm, sleep disturbances, and depression. The trauma of the
accident included a severe impact, transportation by ambulance, loss
of her mother’s car, and difficult, frustrating, and ultimately
unsuccessful dealings with an insurance adjustor. The evidence
presented at trial revealed Lebato to be a very active, self-reliant,

15

industrious woman, the very traits that undoubtedly contributed to her
quick recovery.

Id. at 449.

Based on the foregoing, we increase Hill’s general damage award to

$20,000.00.

DECREE

For the foregoing reasons, we amend the judgment to reduce the allocation

of fault regarding Giles Hill to 50% and increase the allocation of fault regarding

Sabrina Davis to 50%. We amend the trial court’s award for general damages by

increasing it to $20,000.00. The trial court’s judgment is affirmed in all other

respects. Costs of this appeal are assessed equally to Plaintiff, Giles Hill, and

Defendants, Sabrina Davis and State Farm Mutual Automobile Insurance

Company.

AFFIRMED AS AMENDED.

16