Wade Thompson v. Ivy J. Hebert, Jr. & Axis Surplus Insurance Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-284

WADE THOMPSON

VERSUS

IVY J. HEBERT, JR. &
AXIS SURPLUS INSURANCE COMPANY

**********

APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. C-2017-396
HONORABLE E. DAVID DESHOTELS, DISTRICT JUDGE

**********

WILBUR L. STILES
JUDGE

**********

Court composed of Van H. Kyzar, Gary J. Ortego, and Wilbur L. Stiles, Judges.

AFFIRMED.

Aaron Broussard
C. Barrett Rice
Jennifer David Khouri
Broussard Injury Lawyers
1301 Common Street
Lake Charles, LA 70601
(337) 439-2450
COUNSEL FOR PLAINTIFF/APPELLANT
Wade Thompson

Michael S. Koch
Matthew J. Crotty
Neblett, Beard & Arsenault
2220 Bonaventure Court
P.O. Box 12120
Alexandria, LA 71315
(318) 561-2541
COUNSEL FOR PLAINTIFF/APPELLANT
Wade Thompson

Kyle P. Kirsch
E. Madison Barton
Wanek Kirsch Davies, LLC
1340 Poydras Street, Suite 2000
New Orleans, LA 70112
(504) 324-6493
COUNSEL FOR DEFENDANT/APPELLEE
Axis Surplus Insurance Co.

Rachel G. Webre
Morgan A. Druhan
Geiger, Laborde & Laperouse, LLC
701 Poydras Street, Suite 4800
New Orleans, LA 70139
(504) 561-0400
COUNSEL FOR DEFENDANT/APPELLEE
Ivy J. Hebert, Jr.

STILES, Judge.

On March 1, 2023, the trial court rendered judgment granting Defendant Axis

Surplus Insurance Company’s Motion to Enforce Settlement, enforcing the parties’

High/Low Agreement and dismissing Plaintiff Wade Thompson’s claims with

prejudice. The same judgment denied Mr. Thompson’s Motion for Judgment

Notwithstanding the Verdict and/or New Trial as moot. Mr. Thompson appeals the

trial court’s judgment, asking this court to reverse the judgment enforcing the

High/Low Agreement and to remand this matter to the trial court for consideration

of his Motion for Judgment Notwithstanding the Verdict and/or Motion for New

Trial. For the reasons set forth below, we affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

Plaintiff Wade Thompson (“Mr. Thompson”) and Defendant Ivy Hebert (“Mr.

Hebert”) were involved in an automobile accident on September 8, 2017. Mr. Hebert

was attempting to turn left at an intersection when he collided with Mr. Thompson’s

vehicle as it was passing him on the left side. As a result of the accident, Mr.

Thompson sustained a serious ankle injury. When the ankle failed to heal properly,

Mr. Thompson’s leg was amputated below the knee. Mr. Thompson filed suit against

Mr. Hebert and Axis Surplus Insurance Company (“Axis Surplus”), the insurer of

the vehicle being driven by Mr. Hebert at the time of the accident, seeking damages

for the injuries he sustained as a result of the accident.

A jury trial began in this matter on October 17, 2022, resulting in a jury verdict

on October 24, 2022. During the trial, and before the jury rendered its verdict, Mr.

Thompson and Axis Surplus entered into a settlement agreement, entitled the

High/Low Agreement. That settlement agreement provides the following:

NOW INTO COURT, come Plaintiff, WADE THOMPSON, and
Defendant, AXIS SURPLUS INSURANCE COMPANY, who advise
that they have entered into a Settlement Agreement for all claims
against all defendants in the captioned matter, known in the legal
professions as a “High-Low” Agreement. The parties agree that the low
shall be $1,000,000 and that the high shall be $4,500,000.

Further, this agreement is null and void should there be a hung
jury or mistrial.

Plaintiff shall satisfy all liens, known and unknown, (including
but not limited to Workers’ Compensation, other medical health
insurance, expert witness, attorney costs and fees, Medicare set aside if
applicable, legal funding, etc.) related to this litigation. Plaintiff shall
also release Defendants and their insurers for all claims, known or
unknown, related to the litigation, the incident giving rise to the claim
and damages sought. Plaintiff agrees to defend, indemnify and hold
harmless Defendants and their insurers from any and all liens and
claims arising from this litigation and settlement.

This agreement further includes a waiver, by Plaintiff, of interest,
including pre-judgment and/or post-judgment and any interest awarded
by the jury, which would accrue or be payable on any settlement
amounts or amounts awarded by any judgment entered pursuant to this
agreement. All parties shall bear their own costs and fees.

The parties recognize that verdicts are uncertain and that they
have entered into this agreement of their own volition. Each party
agrees to waive any right to appeal and sanctions based upon this
agreement that said monies owed according to this agreement will be
paid within sixty (60) days of the jury verdict.

Footnotes 1 and 2 of the High/Low Agreement state, respectively, that $1 million

“[r]epresents the least amount which will be paid by or on behalf of defendants

regardless of what the jury verdict is at the completion of trial[,]” and $4.5 million

“[r]epresents the most which will be paid by or on behalf of defendants regardless

of what the jury verdict is at the completion of trial, exclusive of interest and cost.”

(Emphasis added.)

On October 24, 2022, the jury found that both Mr. Hebert and Mr. Thompson

were negligent and that their negligence was a legal cause of the crash, assigning

Mr. Hebert with forty-seven percent of the fault and Mr. Thompson with fifty-three

2

percent of the fault. The jury further found that Mr. Thompson’s injuries were

causally related to the crash, awarding him the following amounts in damages:

$1,393,535.40 in past medical expenses; $23,000.00 in future medical expenses;

$159,036.00 in past loss of earnings; and $9,480.00 in future loss of earnings. The

jury, however, wrote “0” on the verdict form next to each of the following items of

general damages: disfigurement; disability; past physical pain and suffering; future

physical pain and suffering; past loss of enjoyment of life; future loss of enjoyment

of life; past emotional distress and inconvenience; and future emotional distress and

inconvenience.

The trial court rendered a Judgment on Jury Verdict on December 5, 2022,

making the jury verdict a judgment of the court and awarding Mr. Thompson

$744,974.16. That amount represents forty-seven percent of the total amount

awarded to Mr. Thompson by the jury, subtracting from the total amount the fifty-

three percent by which Mr. Thompson was found to be at fault for the crash. As the

jury verdict awarded Mr. Thompson less than $1 million, Axis Surplus tendered $1

million to Mr. Thompson in accordance with the High/Low Agreement. The check

for $1 million was received by Mr. Thompson on November 1, 2022, which was

within sixty days of the jury verdict.

On December 14, 2022, Mr. Thompson filed a Motion for Judgment

Notwithstanding the Verdict and/or New Trial (“Motion for JNOV”) solely on the

issue of the jury’s failure to award him any general damages. Mr. Thompson asserted

that the jury found that his injuries were caused by the accident at issue, which in

turn was caused, at least in part, by Mr. Hebert’s negligence. Furthermore, the jury

awarded him special damages representing his past and future medical expenses and

his past and future loss of earnings. Based on these findings by the jury, Mr.

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Thompson argued that it is beyond dispute that he suffered a serious injury and will

continue to have pain and disability for the rest of his life. He further argued that a

JNOV is warranted when a jury finds a defendant caused a plaintiff’s injuries but

fails to award general damages.1 Thus, Mr. Thompson submitted that the trial court

should grant his motion for JNOV on the issue of general damages and award him

reasonable damages, as follows: $2,500,000 for disfigurement; $1,000,000 for

disability; $2,500,000 for past physical pain and suffering; $500,000 for past loss of

enjoyment of life; $500,000 for past emotional distress and inconvenience; $250,000

for future physical pain and suffering; $500,000 for future loss of enjoyment of life;

and $500,000 for future emotional distress and inconvenience. Alternatively, Mr.

Thompson asked the trial court to grant a new trial limited to the issue of general

damages.

On December 15, 2022, Axis Surplus filed a Motion to Enforce Settlement,

asking the trial court to enforce the settlement agreement reached between the parties

pursuant to the High/Low Agreement as Axis Surplus had paid all amounts owed to

Mr. Thompson per that agreement and, thus, Mr. Thompson’s claims should be

dismissed with prejudice. Axis Surplus further argued that Mr. Thompson’s Motion

for JNOV violated the express language of the settlement agreement, whose terms

were triggered when the jury rendered its verdict.

A hearing was held on February 15, 2023, for both Axis Surplus’ Motion to

Enforce Settlement and Mr. Thompson’s Motion for JNOV,2 after which the trial

1
Mr. Thompson cites Labauve v. Central Mutual Insurance Co., 491 So.2d 146, 148
(La.App. 3 Cir. 1986), in which this court held, “Our courts have recognized that a jury cannot
award special damages for personal injuries incurred in an accident and refuse to award any
amount in general damages for injuries that present objective symptoms.”
2
We note that Axis Surplus filed two of its own motions for JNOV which were also heard
on this date: (1) a Motion for Judgment Notwithstanding the Verdict to Conform to Axis’ Policy

4

court held that it was enforcing the High/Low Agreement and, thus, denying the

Motion for JNOV. The trial court specified that it was not denying the Motion for

JNOV on its merits; it was simply not considering the motion on its merits. The trial

court gave lengthy reasons on the record for its decision:

[O]ne of the main issues that we see here in the Ivy Hebert matter is a
question about whether the High/Low Agreement leaves the door open
for post-verdict motions, specifically post-verdict motions for JNOV or
New Trial. That is one of - - obviously the main issue. The Defense,
excuse me, the Plaintiff says that it does and has in fact filed a JNOV.
Plaintiff is willing to accept the findings of the jury concerning, of
course, their denial of the intoxication defense. Plaintiff also accepts
their findings perhaps concerning the issues of fault or comparative
fault wherein they assessed fault, forty-seven percent (47%) to one and
thirty-three - - excuse me, fifty-three percent (53%) to the other. The
Plaintiff accepts the jury’s award of specials, including over 1.3 million
dollars for medical expenses and some one hundred and sixty thousand
dollars for lost wages. Plaintiff of course argues that the jury got it
completely wrong because their client lost a leg, that the jury awarded
zero dollars for any general damages. And of course they are asking the
Court to fix that in this JNOV. During the trial the Plaintiff argued - -
Plaintiff’s attorneys argued if the jury could award general damages to
the tune of say fifteen million dollars or was it seventeen - - whatever
it was, fifteen or seventeen million dollars, that is what they were asking
the jury to consider. Let’s explore that. If the Court would grant this
Motion for JNOV and suppose the Court awarded general damages of
fifteen million or maybe twenty million, I don’t know, maybe twenty-
five million, I think the law is that the decision is left up to the judge. .
. . So suppose we went in that direction, and the Court awarded a JNOV
to the Plaintiff for fifteen million, twenty million, all right. Where does
that go? A judgment would be submitted to the Court. And the judgment
would be submitted by the Plaintiff for fifteen million dollars. And the
Defendant would say, no, no, no, we have a cap of 4.5 million dollars.
Well, the Plaintiff would continue to argue that the High/Low
Agreement does not cover post-verdict motions. The Plaintiff would
logically argue that they are entitled to twenty million dollars. So, we
would have to schedule that matter for a hearing in the future, two or
three months from now, and the Court would have to make that decision
of whether they are limited to 4.5 million or whether they - - or whether
the Plaintiff gets twenty million. And once the trial court makes that

Limit; and (2) a Motion for Judgment Notwithstanding the Verdict on (a) the jury’s determination
that Mr. Thompson did not have a blood alcohol content of .08% or above at the time of the crash,
and (b) the jury’s determination that Mr. Thompson’s injuries were causally related to the crash.
While the trial court addressed these motions in its reasons for judgment given at the February 15,
2023 hearing and in the March 1, 2023 judgment, we do not address them in this opinion as Axis
Surplus has not appealed the trial court’s denial of these motions as moot.

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decision then the issue would probably go to the Court of Appeal,
obviously. Which will take more months, maybe a year. And that issue
will have to be decided. But guess what, the High/Low Agreement says
that no one can appeal. So, that issue will have to be decided in future
litigation as well. And this case will drag on and on. And this is a 2017
case. So, let’s take the opposite opinion. Cause if the door is opened for
post-verdict motions the Defense now argues that they are entitled to a
JNOV on the grounds that they have stated. The Defense argues that
they were able to present evidence in the form of Dr. George and others
that they seem to think can clearly show that Plaintiff was intoxicated
or his blood alcohol level was above .08% BAC. They made their
argument that perhaps, you know, that his impairment was twenty-five
percent at fault or more in the accident. And according to the immunity
statute 9:278 - - 98.4, whatever it is, of course they would argue that
Plaintiff would get zero dollars, according to that immunity statute.
Then the next issue would be do they get at least the minimum of one
million dollars. Does Mr. Thompson get the minimum of a High/Low
Agreement of a million dollars. But then the Defendant would use the
same argument that the Plaintiff uses and say, no, you can’t have your
cake and eat it too. The High/Low Agreement does not cover post-
verdict motions. Mr. Thompson gets zero. And then that issue will have
to be decided in future litigation, either in district court, in the Court of
Appeals, and that will take a very long time as well. The consideration
in the High/Low Agreement was that Mr. Thompson would get
something; and not nothing, a million dollars to 4.5 million dollars. The
consideration would also be that he would get paid soon, sixty days - -
the word, sixty days of the jury verdict. Paid within sixty days of the
jury verdict. The consideration is that there were to be no appeals,
especially after a case that has been dragging on for five years. . . . This
case got to be quite complex. It all culminated in a week long jury trial.
And the jury was asked to decide some difficult complex cases that
were highly contested. They had to first of all decide whether or not the
State proved their intoxication defense, and there were of course sub-
parts to that. The jury next was called upon to handle issues like fault,
how the accident occurred. There were sub-parts to that. There was
evidence of passing in an intersection. Was Callahan Road an
intersection? Was he allowed to pass in that? There was a statute on
point that said you can’t pass in an intersection. The Defendant was
making a left turn across traffic, across another lane. There were issues
about that, the jury had to decide, had to tackle. There were issues about
whether the mirror, the side mirror, was working, how that came into
play. The jury had to tackle that. The jury next had to apportion fault,
which they did. And then in addition they had to decide the ankle injury,
what the injuries [sic]. Did Mr. Thompson break his injury [sic] as a
result of the car wreck or did he jump out and break his ankle when it
popped? The jury had to tackle that issue. The jury next had to figure
out mitigation of damages. There was evidence that if you don’t stop
smoking it will increase your risks of infection up to three hundred
percent. There was evidence that Mr. Thompson continued to smoke

6

and that his ankle got infected and that he had his ankle amputated
which increased the expenses, the medical expenses. The jury had to
decide all of those things, and that is hard for them to do. . . . They do
a good job at it in spite of the difficulties. It was obvious in the Court’s
opinion, even though Mr. Broussard says that it may have been a
compromised verdict, maybe to find the person - - to get over the
intoxication issue[.] . . . But the jury came back with a decision to deny
Mr. Thompson any general damages, which does not make sense and it
would not be proper except for if it was a compromised verdict, then it
would make complete sense. And that brings us back to the High/Low
Agreement. The consideration of the High/Low Agreement is that
verdicts are uncertain, and that somebody is gonna [sic] walk away with
something. So, if the Court took it the next level and granted JNOV for
twenty million dollars for the Plaintiff, or if the Court granted JNOV
for Defense and zeroed Mr. Thompson then that would just make the
High/Low Agreement worthless where it could be thrown away and
burned in the court - - burned in a trash can. That would lead to absurd
consequences, in the Court’s opinion. . . .

....

. . . But that is gonna [sic] be the ruling of the Court is to deny
the JNOV on the grounds that the Court recognizes the High/Low
Agreement. I am not denying JNOVs on their merits. I am not
considering the JNOVs on their merits. I was speaking purely
hypothetical. . . .

....

My point was that I am taking it to its logical conclusion. If the
argument is that the High/Low Agreement leaves the door open for
JNOVS then why would it limit it to 4.5 million. If I was a plaintiff’s
lawyer I would ask for whatever the JNOV was. Converse to that, if I
was defense lawyer, using that logic that the High/Low Agreement is
not effective, then I would make the argument that they would get zero.
In my opinion you can’t - - you can’t - - it is either effective or it is not
effective, and that is the reason.

A Judgment was signed by the trial court on March 1, 2023, granting Axis

Surplus’ Motion to Enforce Settlement, dismissing Mr. Thompson’s claims in this

matter with prejudice and denying Mr. Thompson’s Motion for JNOV as moot.3 On

March 22, 2023, Mr. Thompson appealed “the Judgment GRANTING Defendants’

3
The judgment also denied Axis Surplus’ two motions for JNOV as moot.

7

Motion to Enforce Settlement, which Judgment was rendered orally on February 15,

2023, signed on March 1, 2023, and mailed on March 1, 2023.” Mr. Thompson

further states in his Motion and Order for Devolutive Appeal that in addition to

seeking a devolutive appeal of the judgment, he is requesting “that the appellate

court remand the case back to the trial court for a ruling on Plaintiff’s Motion for

Judgment Notwithstanding the Verdict and/or New Trial.”

ASSIGNMENTS OF ERROR

On appeal, Mr. Thompson has asserted the following two assignments of

error:

1. The Trial Court erred by finding the High-Low Agreement
waives the right to post-trial motions, as the High-Low Agreement
contains no such waiver.

2. The Trial Court erred by refusing to consider and denying Mr.
Thompson’s Motion for JNOV as moot.

DISCUSSION

Standard of Review

The question at issue in this appeal is whether the High/Low Agreement

permits the parties to seek post-trial motions once the jury has rendered its verdict.

“Questions of contractual interpretation are likewise questions of law, which are

subject to a de novo standard of review.” Johnson v. Allstate Prop. and Cas. Ins. Co.,

21-552, p. 4 (La.App. 3 Cir. 4/27/22), 338 So.3d 109, 112. As stated by this court in

Derouen v. Nelson, 09-467, p. 3 (La.App. 3 Cir. 3/10/10), 32 So.3d 1079, 1082,

“When a trial court’s interpretation of a contract is not based upon any factual

findings, but, rather, is based upon a review of the contract’s language, the manifest

error standard of review does not apply.” In making its decision to enforce the

High/Low Agreement, the trial court conducted a review of the agreement’s

8

language without basing its decision on any finding of fact. Thus, we shall review

the trial court’s judgment using a de novo standard of review, as questions of law are

reviewed de novo and there are no questions of fact at issue here. See Campbell v.

Evangeline Par. Police Jury, 14-1301 (La.App. 3 Cir. 5/6/15), 164 So.3d 408, writ

denied, 15-1067 (La. 9/7/15), 176 So.3d 1043.

Does the High/Low Agreement waive the right to post-trial motions:

Mr. Thompson first makes it clear that he is not seeking to nullify or disregard

the High/Low Agreement. While he acknowledges that the agreement is enforceable

and does waive certain rights, such as interest, appeals, and sanctions, he maintains

that there is no provision in the High/Low Agreement that can be interpreted to waive

post-trial motions. Citing Soileau v. Smith Tree Value and Rental, 12-1711, p. 12 (La.

6/28/13), 144 So.3d 771, 780, Mr. Thompson argues that “[a] compromise settles

only those differences that the parties clearly intended to settle,” and thus “a

compromise must clearly express the rights that the parties intended to settle.”

According to Mr. Thompson, therefore, he has the right to seek post-trial relief as a

matter of law as that right was not waived by either party under the clear and explicit

language contained in the High/Low Agreement. He cites Arceneaux v. Amstar

Corp., 10-2329, p. 18 (La. 7/1/11), 66 So.3d 438, 450-51, for the principle that

“[w]aiver occurs when there is an existing right, a knowledge of its existence and an

actual intention to relinquish it or conduct so inconsistent with the intent to enforce

the right as to induce a reasonable belief that it has been relinquished.” Mr.

Thompson also cites Breaux v. Laird, 230 La. 221, 88 So.2d 33, 38 (1956), in which

the court stated, “the term ‘waiver’ . . . can be comprehensively defined as a

voluntary and intentional relinquishment or abandonment of a known existing legal

9

right, advantage, benefit, claim, or privilege, which except for such waiver the party

would have enjoyed.”

Thus, Mr. Thompson argues that the since the clear and explicit words of the

High/Low Agreement do not include any language waiving his right to file post-trial

motions, allowing post-trial motions would not render the High-Low Agreement

meaningless, leading to no absurd consequences.4 Nor does Mr. Thompson believe

that any language in the High/Low Agreement states that the jury verdict “triggered”

a settlement, thereby ending the litigation. Mr. Thompson, therefore, submits that

the trial court erred when it granted Axis Surplus’ Motion to Enforce Settlement,

disregarding the High/Low Agreement’s clear, express terms and judicially creating

a waiver of post-trial motions.

In its appellee brief, 5 Axis Surplus notes that the High/Low Agreement

specifically provides that the parties “have entered into a Settlement Agreement for

all claims against all defendants in the captioned matter[.]” The agreement further

provides, “Plaintiff shall also release Defendants and their insurers for all claims,

known or unknown, related to the litigation, the incident giving rise to the claim and

damages sought.” The trial court noted in its oral reasons for judgment at the

February 13, 2023 hearing, “The consideration in the High/Low Agreement was that

Mr. Thompson would get something; and not nothing, a million dollars to 4.5 million

dollars. The consideration was also that he would get paid soon . . . within sixty days

4
See La.Code Civ.P. art. 2046, which provides, “When the words of a contract are clear
and explicit and lead to no absurd consequences, no further interpretation may be made in search
of the parties intent.”
5
Defendant/Appellee Axis Surplus has filed an appellee brief in response to
Plaintiff/Appellant Mr. Thompson’s appellant brief. Defendant/Appellee Mr. Hebert filed a
separate brief, adopting “all facts, law, argument, evidence and requests for relief set forth in the
brief filed on behalf of Defendant/Appellee Axis Surplus Lines Insurance Company, as if copied
herein in extenso.”

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of the jury verdict.” As stated in the High/Low Agreement, “The parties recognize

that verdicts are uncertain and that they have entered into this agreement of their

own volition.”

Axis Surplus argues that these clear and explicit terms of the High/Low

Agreement should be upheld because such an agreement is a favored means of

resolution. Louisiana jurisprudence has a “strong policy favoring compromise

agreements and finality of settlements.” Brown v. Drillers, Inc., 93-1019 (La.

1/14/94), 630 So.2d 741, 757. In Joseph v. Huntington Ingalls Inc., 18-2061, pp. 18–

19 (La. 1/29/20), 347 So.3d 579, 593, the supreme court concluded:

The jurisprudence of Louisiana has a long-stated, strong public
policy favoring compromises:

The law in its wisdom, and out of solicitude to end or avert
threatened litigation, encourages settlement of disputes by
compromise, and does not sanction the solemn acts of
contending parties settling their disagreements being
lightly brushed aside, unless there be present evidence of
bad faith, error, fraud, etc. If such were not the law, there
would be little incentive to any one [sic] to part with
anything of value in the desire to escape the harassments
of litigation. A compromise agreement, when freely
entered into, is intended to have the binding effect of the
thing adjudged. The law has ordained that such
transactions have the dignity and force of a definitive
judgment, in so far as definitely and irrevocably fixing the
rights and liabilities of the parties thereto, as relates to the
subject-matter dealt with. It is simply the act of the parties
determining their own liabilities and obligations, instead
of the court.

Beck v. Continental Cas.Co., 145 So. 810, 811 (La.App. 2 Cir. 1933).

Further citing the supreme court’s opinion in Joseph, 347 So.3d at 587, Axis

submits that, as a compromise, the High/Low Agreement should be interpreted using

“the same general rules of contractual interpretation applicable to contracts.” “When

words of a contract are clear and explicit and lead to no absurd consequences, no

11

further interpretation may be made in search of the parties’ intent. [La.Civ. Code art.]

2046. The aim of contractual interpretation is the discernment of a compatible

meaning to all provisions of an agreement.” Dugas v. Modular Quarters, Inc., 561

So.2d 192, 198 (La.App. 3 Cir. 1990) (citing Investors Assoc. Ltd. v. B.F. Trappey’s

Sons, 500 So.2d 909 (La.App. 3 Cir.), writ denied, 502 So.2d 116 (La.1987)).

Mr. Thompson has argued that nothing in the High/Low Agreement triggers

the settlement upon the jury reaching a verdict. However, Axis Surplus counters that

such a reading of the agreement is contrary to its plain terms. According to Axis

Surplus, the clear language of the High/Low Agreement, wherein it reads that the

“monies owed according to this agreement will be paid within sixty (60) days of the

jury verdict[,]” confirms that the duty to pay arises “within sixty (60) days of the

jury verdict.” Furthermore, the amount of monies owed is determined “at the

completion of trial[,]” as clearly stated in footnotes 1 and 2 of the agreement. “[E]ach

provision in a contract must be interpreted in light of the other provisions so that

each is given the meaning suggested by the contract as a whole.” Specialty Retailers,

Inc. v. RB River IV LLC, 17-490, p. 5 (La.App. 3 Cir. 1/4/18), 237 So.3d 63, 67,

quoting Van Mol v. Beasley, 15-869, p. 4 (La.App. 3 Cir. 2/3/16), 184 So.3d 280,

284. Thus, according to Axis Surplus, any argument that Mr. Thompson somehow

reserved the right to have the jury verdict reviewed at the completion of the trial,

when the amount owed is due within sixty days of the jury verdict, is contrary to the

agreement’s terms, which, when read as a whole, provide that it takes effect when

the jury verdict is rendered.

As stated in Brown, 630 So.2d at 747:

[Louisiana Civil Code Article] 3071 defines a compromise as “an
agreement between two or more persons, who, for preventing or putting
an end to a lawsuit, adjust their differences by mutual consent, in the

12

manner which they agree on, and which every one of them prefers to
the hope of gaining, balanced by the danger of losing.” [Louisiana Civil
Code Article] 3078 declares that the effect of a compromise has the
legal efficacy of a judgment, possessing “a force equal to the authority
of things adjudged,” and that a compromise “can not be attacked on
account of any error in law or lesion.” [La.Civ. Code art.] 3078; see
Salling Wiping Cloth Co. v. Sewell, Inc., 419 So.2d 112, 114 (La.App.
2d Cir. 1982).

The supreme court further noted that La.Civ.Code art. 3071 “provides that a

compromise is a written contract[,]” and, as such, “the compromise instrument is

governed by the same general rules of construction applicable to contracts.” Id. at

748. Additionally, “courts are guided by the general principle ‘that the contract must

be construed as a whole and in light of attending events and circumstances.’” Id.

In analyzing the settlement agreement at issue in this case, the High/Low

Agreement, we look to this court’s discussion of contractual interpretation laid out

in Dugas, 561 So.2d at 198:

When the words of a contract are clear and explicit and lead to
no absurd consequences, no further interpretation may be made in
search of the parties’ intent. [La.Civ.Code art.] 2046. The aim of
contract interpretation is the discernment of a compatible meaning to
all provisions of an agreement. Investors Assoc. Ltd. v. B.F. Trappey’s
Sons, 500 So.2d 909 (La.App. 3rd Cir. 1987), writ denied, 502 So.2d
116 (La.1987). Louisiana contracts are interpreted in light of the
common intent of the parties, and in light of all of the provisions, so
that each provision is given the meaning suggested by the contract as a
whole. [La.Civ. Code arts.] 2045, 2050. In ascertaining the parties’
common intentions to the contract, recourse must first be obtained by
construing the contract or agreement as a whole; if that process is not
determinative, then the next subject of inquiry is the discernment of the
circumstances surrounding the parties at the time of contracting.
Investors Assoc. Ltd., supra at 912. Contracts, subject to interpretation
from the four corners without the necessity of extrinsic evidence, are
interpreted as a matter of law. Id.

Thus, we must look to the clear, explicit language of the High/Low Agreement to

determine the common intent of Mr. Thompson and Axis Surplus when entering into

13

the agreement, as well as to interpret the agreement so as to give meaning to each

provision “suggested by the contract as a whole.” Id.

The High/Low Agreement specifically states the following:

NOW INTO COURT, come Plaintiff, WADE THOMPSON, and
Defendant, AXIS SURPLUS INSURANCE COMPANY, who advise
that they have entered into a Settlement Agreement for all claims
against all defendants in the captioned matter, known in the legal
professions as a “High-Low” Agreement. The parties agree that the low
shall be $1,000,000 and that the high shall be $4,500,000.

....

. . . Plaintiff shall also release Defendants and their insurers for
all claims, known or unknown, related to the litigation, the incident
giving rise to the claim and damages sought.

(Emphasis added) (footnotes omitted). Thus, both parties, including Mr. Thompson,

agreed to settle this matter, with Mr. Thompson agreeing to “release” the defendants

Mr. Hebert and Axis Surplus “for all claims, known and unknown, related to the

litigation, the incident giving rise to the claim and damages sought.” (Emphasis

added.) We find that the words “all claims,” stated multiple times in the agreement,

include Mr. Thompson’s claim for general damages. Mr. Thompson, therefore,

agreed to settle his claim for general damages against Defendants Axis Surplus and

Mr. Hebert and to release them from this claim when he signed the High/Low

Agreement.

The High/Low Agreement further states, “The parties recognize that verdicts

are uncertain and that they have entered into this agreement of their own volition.”

Thus, we find that the parties’ intent in entering into the settlement agreement was

to ensure that Mr. Thompson would be paid at least $1 million, while ensuring that

Axis Surplus would not have to pay him more than $4.5 million. By acknowledging

in the clear language of the settlement agreement that “verdicts are uncertain”, the

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parties made it clear that they were aware they would each be receiving a benefit—

“regardless of what the jury verdict is at the completion of trial,”6 This language is

clear and unambiguous. Mr. Thompson agreed to the terms “regardless” of “what

the jury verdict is[.]” These broad terms would include a jury verdict “at the

completion of trial” that did not contain an award for general damages. The returning

of the verdict by the jury at the completion of trial triggered the agreement of the

parties, regardless of its nature. By these terms, Mr. Thompson would not walk away

from trial empty-handed, and Axis Surplus would not have to pay him more than

$4.5 million. Mr. Thompson also benefits from the clause in the settlement

agreement that provides “said monies according to this agreement will be paid within

sixty (60) days of the jury verdict[,]” a short, precise timeline for the payment of the

money owed to him pursuant to the agreement. The concession that both parties

made when entering into this settlement agreement was that they would each waive

any right to appeal and any right to sanctions as long as the money owed to Mr.

Thompson was paid to him within sixty days. Axis Surplus complied with the terms

of the High/Low Agreement when it issued a check to Mr. Thompson in the amount

of $1 million, which was received by him within sixty days of the jury’s verdict.7

Thus, we find that the clear language of the High/Low Agreement evidences

an intent by the parties to end this lawsuit and adjust their differences by mutual

consent, in a manner upon which they both agreed. See Brown, 630 So.2d 741. By

entering into this settlement agreement, each party gained an advantage in return for

waiving certain rights. There is an old adage, “a card laid is a card played”. Allowing

6
See footnotes 1 and 2 of the High/Low Agreement.
7
Evidenced by the FedEx delivery receipt filed into the record.

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Mr. Thompson to file post-trial motions would lead to the absurd consequence of

nullifying the clear intent of the parties to settle “all claims” arising from this

accident at issue in this litigation. We, therefore, affirm the trial court’s decision to

grant Axis Surplus’ Motion to Enforce Settlement and deny Mr. Thompson’s Motion

for JNOV as moot.

Did the trial court err by refusing to consider and denying Mr. Thompson’s Motion

for JNOV as moot:

As we have found that the trial court did not err in granting the Motion to

Enforce the Settlement, thereby affirming its decision that Mr. Thompson was

prohibited from filing post-trial motions, we further find that the trial court did not

err when it denied Mr. Thompson’s Motion for JNOV as moot.

DECREE

For the foregoing reasons, we affirm the trial court’s March 1, 2023 Judgment

granting Defendant/Appellee Axis Surplus Insurance Company’s Motion to Enforce

Settlement, dismissing Plaintiff/Appellant Wade Thompson’s claims with prejudice,

and denying Wade Thompson’s Motion for Judgment Notwithstanding the Verdict

and/or New Trial as moot. All costs of this appeal are assessed to Wade Thompson.

AFFIRMED.

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