Michael A. Couvillion in His Capacity as Sheriff of Vermilion Parish v. Nationwide Agribusiness Insurance Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-488

CHARLES LEVINE

VERSUS

NATIONWIDE AGRIBUSINESS INSURANCE COMPANY, ET AL.

Consolidated with

23-489

MICHAEL A. COUVILLION, IN HIS CAPACITY AS SHERIFF OF
VERMILION PARISH, ET AL.

VERSUS

NATIONWIDE AGRIBUSINESS INSURANCE COMPANY, ET AL.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 107,696
(consolidated with 107,785)
HONORABLE MICHELLE M. BREAUX, DISTRICT JUDGE

**********

CHARLES G. FITZGERALD
JUDGE

**********

Court composed of Elizabeth A. Pickett, Charles G. Fitzgerald, and Wilbur L. Stiles,
Judges.

REVERSED IN PART;
AFFIRMED AS AMENDED.

Jason M. Welborn
Jacob H. Hargett
Welborn and Hargett, LLC
1540 W. Pinhook Road
Lafayette, Louisiana 70503
Phone: (337) 234-5533
Fax: (337) 769-3173
Counsel for Plaintiff:
Charles Levine

Isaac H. Ryan
Ike Ryan APLC
1100 Poydras Street, Suite 2905
New Orleans, Louisiana 70163
Phone: (504) 952-0505
Counsel for Defendants:
Berkshire Hathaway Specialty Insurance Company
Universal Environmental Services, LLC
Renauldo Hawkins

Emily E. Eagan
701 Poydras Street, Suite 4800
New Orleans, Louisiana 70139
Phone: (504) 561-0400
Fax: (504) 561-1011
Counsel for Defendant:
Berkshire Hataway Specialty Insurance Company

Joshua Trahan
102 Versailles Boulevard, Suite 400
Lafayette, Louisiana 70509
Phone: (337) 237-6062
Fax: (337) 237-9129
Counsel for Defendant:
Universal Environmental Services, LLC

Ney Gehman
Kimberly G. Anderson
3850 North Causeway Boulevard, Suite 1230
Metairie, Louisiana 70002
Phone: (504) 837-9017
Fax: (855) 810-2532
Counsel for Defendants:
Renauldo Hawkins
Universal Environmental Services, LLC
Nationwide Agribusiness Insurance Company

FITZGERALD, Judge.

In this appeal, we are asked to review the jury’s allocation of fault and award

of damages.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

This lawsuit arises from a motor vehicle accident. The relevant facts are not

in dispute.

In January 2019, Renauldo Hawkins became distracted while driving a large

box truck down U.S. Highway 167 in Vermilion Parish, Louisiana. The box truck

was owned by Renauldo’s employer, Universal Environmental Services (UES). By

all accounts, Renauldo bent down to retrieve a bottle of water while traveling at

approximately sixty-five miles per hour and smashed into the back of a Vermilion

Parish Sheriff’s Office police cruiser being driven by Deputy Sheriff Charles Levine.

As a result of the collision, the deputy sheriff suffered serious personal injuries.

In December 2020, Deputy Sheriff Levine filed a damages suit against

Renauldo, UES, and UES’s primary insurer, Nationwide Agribusiness Insurance

Company, alleging negligent acts by Renauldo. In February 2022, Plaintiff filed a

first amended petition for damages. The amended petition added UES’s excess

insurer, Berkshire Hathaway Specialty Insurance Company, as a defendant. The

amended petition also asserted direct negligence claims against UES, including

negligent hiring, negligent training, and negligent supervision. A jury trial was fixed

for September 2022.

It is undisputed that the accident occurred while Renauldo was acting within

the course and scope of his employment with UES and that UES is vicariously liable

for any damages resulting from Renauldo’s negligence. In fact, fourteen days before

trial, all Defendants collectively filed a document styled “Defendants’ Binding and

Irrevocable Judicial Admissions and Judicial Confessions Regarding Liability” in

which they confessed that Renauldo is 100% at fault for causing the accident and

that UES is vicariously liable for Renauldo’s negligence. In that document,

Defendants reserved only their right to contest medical causation and damages.

A five-day jury trial began on September 26, 2022. The jury, in turn, awarded

Plaintiff damages in the amount of $5,000,000.00. On November 15, 2022, the trial

court signed a final judgment which reduced the award to $3,500,000.00. Two days

later, Plaintiff moved for a judgment notwithstanding the verdict and for a new trial

on the issue of liability. Both motions were denied by the trial court on February 27,

2023.

Plaintiff now appeals the original judgment and the judgment denying his

post-trial motions, asserting five assignments of error:

1. The Trial Court committed reversible legal error, by failing to
grant a new trial based on the Defendants’ intentional act to
conceal discoverable documents ordered to be produced by the
trial court, which were discovered after the trial.

2. The Trial Court committed reversible legal error, by placing First
Advantage on the verdict form, and allowing Defendants to argue
First Advantage’s fault in closing arguments, given the
Defendants’ stipulation of Liability prior to trial.

3. The Trial Court committed reversible legal error, by failing to
prohibit First Advantage from being placed on the verdict form
given the Defendants’ failure to properly prove any contractual
duty and given the Defendant’s non-delegable duty to comply
with the FMCSR.

4. The Trial Court committed reversible legal error, by failing to
grant Plaintiff’s judgment notwithstanding the verdict (“JNOV”)
or in the alternative a New Trial on the issue of liability for three
reasons.

5. The Trial Court committed reversible legal error, by applying its
own interpretation of the jury’s verdict to the percentage of court
costs owed to the plaintiff.

2

In response, Defendants answered the appeal, asserting two assignments of

error:

1. The jury’s $3,231,941.87 award for general damages is grossly
excessive.

2. The district court erroneously prohibited defendants from
adducing evidence that $318,756.72 of Mr. Levine’s claimed
medical expenses were “phantom charges” that neither Mr.
Levine nor anyone else would ever be expected to pay.

LAW AND ANALYSIS

In the discussion that follows, we begin by reviewing Plaintiff’s second

assignment of error. Next, we address Plaintiff’s third, fourth, and fifth assignments

of error. However, because Plaintiff’s first and fourth assignments seek review of

the same thing—the denial of Plaintiff’s post-trial motions—those assignments are

discussed together. Thereafter, we turn our attention to Defendants’ first and second

assignments of error.

Plaintiff’s Second Assignment of Error

Here, Plaintiff argues the trial court committed reversible legal error by adding

First Advantage (a nonparty potential joint tortfeasor) to the jury verdict form and

by allowing Defendants to raise the issue of First Advantage’s fault during closing

arguments. Plaintiff contends that “Defendants’ Binding and Irrevocable Judicial

Admissions and Judicial Confessions Regarding Liability” precluded UES from

shifting liability to First Advantage. We agree.

Louisiana Civil Code Article 1853 addresses judicial confessions: “A judicial

confession is a declaration made by a party in a judicial proceeding. That confession

constitutes full proof against the party who made it. A judicial confession is

indivisible and it may be revoked only on the ground of error of fact.”

3

In C.T. Traina, Inc. v. Sunshine Plaza, Inc., 03-1003, p. 5 (La. 12/3/03), 861

So.2d. 156, 159, the Louisiana Supreme Court explained that a judicial confession

“has the effect of waiving evidence as to the subject of the admission.” This court

further specified that a party cannot contest a fact or issue if he has judicially

admitted it during the proceedings. Leprettre v. RCS, LLC, 16-382 (La.App. 3 Cir.

11/16/16), 206 So.3d 1215.

In this matter, two weeks before the start of trial, Defendants collectively filed

“Defendants’ Binding and Irrevocable Judicial Admissions and Judicial Confessions

Regarding Liability.” The substance of this document is reproduced in its entirety

as follows:

NOW INTO COURT, comes Defendants, Universal
Environmental Services, LLC, Renauldo Hawkins, Nationwide
Agribusiness Insurance Company, and Berkshire Hathaway Specialty
Insurance Company, who hereby agree, bind themselves to, and
irrevocably admit and confess to the following:

1. Plaintiff, Charles Levine, and defendant, Renauldo Hawkins,
were involved in an automobile accident on January 10, 2019 in
Vermilion Parish, State of Louisiana.

2. Defendant, Renauldo Hawkins, was 100% at fault for causing the
aforementioned accident.

3. As a result of the accident, Plaintiff, Charles Levine, filed the
above suit seeking damages, including damages for personal
injuries.

4. Jurisdiction and venue are proper.

5. Defendant, Renauldo Hawkins, was employed by Defendant,
Universal Environmental Services, LLC, at the time of the
January 10, 2019 accident.

6. Defendant, Renauldo Hawkins, was in the course and scope of
his employment with Defendant, Universal Environmental
Services, LLC, at the time of the January 10, 2019 accident.

7. Defendant, Universal Environmental Services, LLC, is
vicariously liable for the negligent conduct of Mr. Hawkins.

4

8. Defendants, Renauldo Hawkins and Universal Environmental
Services, LLC, reserve their right to contest medical causation
and any and all damages in this matter.

Once trial began, defense counsel reiterated the terms of the confession during

opening arguments:

As it has been indicated throughout the jury voir dire part of the case,
and I want to emphasize to you, I’m the attorney for Universal
Environmental Services. And I have the authority to tell you this, this
accident was caused by our legal fault. I’m going to say it again. This
accident was caused by the legal fault of Universal Environmental
Services. Mr. Hawkins was negligent when he ran into the back of Mr.
Levine, and he was in the course and scope of his employment when it
happened. So there is no dispute about that. And any significant
evidence that’s been on about that is a waste of time because we have
agreed with that. So the only issues in this case are medical causation
and damages, fair and reasonable damages. . . . Again, you know, the
only issues that you need to decide are those issues. You don’t need to
decide negligence. You know, we have admitted that.

Then, during Plaintiff’s case-in-chief, UES corporate representative Michael

Schoor reaffirmed that UES was responsible for the collision. Also during Plaintiff’s

case-in-chief, Defendants successfully used the confession to limit the evidence that

was adduced. For example, when Plaintiff attempted to elicit evidence of UES’s

negligence by comparing an almost identical 2018 rear-end collision caused by

Renauldo, Defendants pointed to the confession as the basis for an objection on

relevancy grounds. The trial court sustained the objection and excluded the

evidence.

And later during Plaintiff’s case-in-chief, defense counsel reiterated: “Well,

we stipulated to liability. I don’t know how the distance, when he started to brake,

affects—again, we’re just trying to streamline.” In response, the trial court stated:

“And I get it. And my understanding is, too, that liability has been stipulated to. So

this is a trial of damages.”

5

But then, after the trial court recessed on the fourth day of trial, it met with

respective counsel in chambers, off the record, to discuss the jury charges and verdict

form. This was at the end of Plaintiff’s case-in-chief. This is also when defense

counsel first requested to add First Advantage to the jury verdict form under La.Code

Civ.P. art. 1812. First Advantage was hired by UES to conduct a background check

on Renauldo. Plaintiff’s counsel objected to the request, but the objection was

overruled by the trial court. And based on this ruling, defense counsel was then

allowed to tell the jury during closing arguments that First Advantage (a nonparty)

was at fault for causing the accident.

Nonetheless, following closing arguments, the trial court instructed the jury

that “a stipulation or agreement by and between the attorneys as to the existence of

a fact and such facts as have been judicially noticed by the Court must be accepted

by you as proven evidence.” The trial court then added:

An admission by a party in a pleading constitutes a judicial confession
and is full-proof against the party making it. The parties have agreed
or stipulated that defendants, Renauldo Hawkins and UES, LLC, that
the accident on January 10th, 2019 was due to the negligence and/or
fault of Renauldo Hawkins who was driving under the authority of
defendant, UES, LLC, at the time of the January 10th, 2019 accident,
and that UES, LLC is liable for any negligence attributed to Renauldo
Hawkins in causing the January 10th, 2019 accident. This means that
both sides agree that this is a fact. You must therefore treat this fact as
having been proved.

Immediately thereafter, the trial court read the confession, all of it, into the

record. Yet the verdict form that was ultimately approved by the trial court asked

the jury to allocate fault between Renauldo, UES, and First Advantage.

A few things before going further: first, the parties never stipulated to

anything. A stipulation is a bilateral agreement as to the existence or nonexistence

of relevant facts. And second, the confession filed by Defendants is exactly what it

6

purports to be: a judicial confession. It is a unilateral declaration of the facts

contained therein. Very simply, Defendants judicially confessed to liability, and the

trial court never relieved them from this confession. Thus, the trial court committed

plain legal error by granting Defendants’ request and adding First Advantage to the

jury verdict form.1

But even still, Defendants argue that this issue has been waived by Plaintiff

for the purpose of this appeal. In other words, Defendants argue that the record does

not contain an objection by Plaintiff to the inclusion of First Advantage on the

verdict form.

In support, Defendants point to Martinez v. Soignier, 570 So.2d. 23 (La.App.

3 Cir. 1990), writ denied, 574 So.2d 94 (La.1991). There, this court explained that

“[a]ppellants who do not object to the special verdict form are not entitled to raise

the issue on appeal.” Id. at 30. Defendants also cite La.Code Civ.P. art. 1793(C),

which states that “[a] party may not assign as error the giving or failure to give an

instruction unless he objects thereto either before the jury retires to consider its

verdict or immediately after the jury retires, stating specifically the matter to which

he objects and the grounds of his objection.”

1
The confession filed by Defendants was intended to limit the triable issues to medical
causation and damages. See, e.g., Martin v. Thomas, 21-1490 (La. 6/29/22), 346 So.3d 238. It was
a strategic attempt by Defendants—albeit unsuccessful—to subsume Plaintiff’s direct negligence
claims against UES for negligent hiring, training, and supervision into Plaintiff’s negligence
claims against the employee-driver (Renauldo) for which the employer (UES) is vicariously liable.
Plaintiff, on the other hand, wanted the jury to hear about the direct negligent acts of UES—hoping
that the jury would give a higher damages award after hearing such evidence. Had Plaintiff
stipulated to the terms of the confession, Plaintiff would have been precluded from adducing any
evidence of UES’s bad acts. This is why Plaintiff maintained the direct negligence claims against
UES. And this is why Plaintiff wanted the jury to apportion fault between Renauldo and UES,
even though UES was financially on the hook for the damages resulting from Renauldo’s
negligence and for the damages resulting from its own direct negligence.

7

The fifth circuit addressed the application of La.Code Civ.P. art. 1793(C) to

jury verdict forms in Danna v. Chestnut, 23-131 (La.App. 5 Cir. 11/29/23), ___

So.3d ___ (2023 WL 8250043). In that case, the appellate court explained:

In order to preserve the right to appeal an error in a verdict form or jury
interrogatory, an objection must be made before the jury retires so that
the court will have an opportunity to consider the objection and correct
any error revealed by the objection. It is only when the instructions or
jury interrogatories contain a plain and fundamental error that the
contemporaneous objection requirement is relaxed and appellate
review is not prohibited.

Id. at *3 (citations omitted).

In addition, La.Code Civ.P. art. 1635 provides as follows:

Formal exceptions to rulings or orders of the court are
unnecessary. For all purposes it is sufficient that a party, at the time the
ruling or order of the court is made or sought, makes known to the court
the action which he desires the court to take or his objection to the
action of the court and his grounds therefor; and, if a party has no
opportunity to object to a ruling or order at the time it is made, the
absence of an objection does not thereafter prejudice him.

Here, we are faced with a situation where Defendants’ request to add First

Advantage to the verdict form and Plaintiff’s objection thereto were made off the

record, but both the request and objection are acknowledged by the parties. Indeed,

the post-trial motions and appeal briefs show that Defendants’ request to add First

Advantage to the jury verdict form was made orally during an off-the-record

conference between the trial court and respective counsel on the evening of the

fourth day of trial. All parties concede that the request to add First Advantage was

made by defense counsel during this conference. And all parties concede that

counsel for Plaintiff objected at the time of the request and again the following

morning. For instance, Defendants’ post-trial motion for entry of judgment reads as

follows:

8

Defendants requested that First Advantage be placed on the special jury
verdict form. After hearing objections from Plaintiff, the Court
ultimately ruled that Plaintiff himself had opened the door on this issue
and that Louisiana law allowed First Advantage to be placed on the
form. . . . Despite this ruling, the very next day, on the morning of the
last day of trial, Plaintiff again objected to First Advantage being placed
on the special jury verdict form.

Restated concisely, although we do not have a transcript of Defendants’

request under La.Code Civ.P. art. 1812 or Plaintiff’s contemporaneous objection

(because both were made off the record), we know that both happened before the

jury retired. And even if Plaintiff had failed to contemporaneously object, the

addition of First Advantage to the jury verdict form was a plain and fundamental

error of law, meaning that the contemporaneous objection requirement is relaxed

and appellate review is proper. Berg v. Zummo, 00-1699 (La. 4/25/01), 786 So.2d

708.

Thus, Plaintiff’s second assignment of error has not been waived, and the trial

court committed plain legal error in adding First Advantage to the jury verdict form.

Plaintiff’s Third Assignment of Error

Because Plaintiff’s third assignment of error also challenges the addition of

First Advantage to the jury verdict form, we pretermit any discussion of this

assignment based on our previous disposition.

Plaintiff’s First and Fourth Assignments of Error

Plaintiffs first and fourth assignments of error challenge the trial court’s

rulings denying the motions for new trial and judgment notwithstanding the verdict.

Because we find merit in Plaintiff’s motion-for-new-trial argument, we pretermit

any discussion of the JNOV.

Louisiana Code of Civil Procedure Article 1972(1) provides that “[a] new trial

shall be granted . . . [w]hen the verdict or judgment appears clearly contrary to the

9

law and the evidence.” The grant or denial of a motion for new trial is reviewed for

an abuse of discretion. Smith v. Alliance Compressors, 05-855 (La.App. 3 Cir.

2/1/06), 922 So.2d 674.

In essence, Plaintiff asserts that the trial court abused its discretion by failing

to grant a new trial to correct the jury’s assignment of 200% liability. We agree.

Here, the jury’s September 30, 2022 verdict reads in relevant part as follows:

1. Do you find that the Defendants, Universal Environmental
Services, LLC (“UES”), and Renaldo [sic] Hawkins, caused the
subject collision on January 10, 2019?

Yes

2. Do you find that UES committed separate independent acts of
fault?

Yes  No__

3. What percentage of fault do you assess Renaldo [sic] Hawkins,
UES, and First Advantage for causing the subject collision?

Renaldo [sic] Hawkins 100%
UES 70%
First Advantage 30%

The jury further found that Mr. Levine suffered damages as a result of the

collision and awarded the following sums:

Past medical expenses $529,872.13
Future medical expenses $550,000.00
Past lost earnings $188,186.00
Future loss of earning capacity $500,000.00
Past pain and suffering $1,000,000.00
Future pain and suffering $500,000.00
Past mental and emotional anguish $300,000.00
Future mental and emotional anguish $250,000.00
Past and future disability $431,941.87
Past and future loss of enjoyment of life $750,000.00
TOTAL $5,000,000.00

Then, on November 15, 2022, the trial court rendered its final judgment which

arbitrarily reduced the damages award by 30%:

10

IT IS ORDERED, ADJUDGED AND DECREED that there
be judgment in favor of Plaintiff, Charles Levine and against
Defendants, Nationwide Agribusiness Insurance Company, Universal
Environmental Services, LLC, and Renauldo Hawkins, in solido, in the
full principle sum of NINE HUNDRED NINETY THOUSAND
EIGHT HUNDRED NINETY-SIX and 40/100 DOLLARS
($990,896.40), together with legal interest on said sum from judicial
demand until paid.

IT IS ORDERED, ADJUDGED AND DECREED that there
be judgment in favor of Plaintiff, Charles Levine and against
Defendants, Berkshire Hathaway Insurance Company, Universal
Environmental Services, LLC, and Renauldo Hawkins, in solido, in the
full principal amount of TWO MILLION FIVE HUNDRED NINE
THOUSAND ONE HUNDRED THREE DOLLARS and 60/100
DOLLARS ($2,509,103.60) together with legal interest on said sum
from judicial demand until paid.

In our view, the addition of First Advantage to the verdict form led to the

jury’s erroneous assessment of 200% liability. The assessment of 200% liability is

a substantial error on the face of the verdict form. And instead of sending the jury

back to correct this error, the trial court compounded the problem by imposing its

own interpretation to the jury’s fault assessment and entering a judgment which

arbitrarily reduced the damage award by 30%—from $5,000,000.00 to

$3,500,000.00—resulting in an additional layer of error. Plaintiff then filed a motion

for new trial, giving the trial court yet another chance to correct the above errors.

But the trial court denied this motion and in doing so abused its discretion.

At this point, we are left with two options. The first option is to remand the

case to the trial court for a new trial on liability. The second is to review the record

de novo and allocate fault between the proper parties: Renauldo and UES. In the

interest of judicial economy, and because the record is complete, we will proceed

with option number two.

Turning now to the record evidence. In summary, the evidence shows that

Renauldo caused the accident by plowing his truck into the back of Plaintiff’s car at

11

approximately sixty-five miles per hour. Renauldo was distracted. He was looking

away from the road and reaching down in his truck to retrieve a water bottle when

the accident occurred. Renauldo was in the course and scope of his employment

with UES, and UES is vicariously liable for the damage caused by Renauldo’s

negligence.

But the evidence also shows that UES was required to conduct a background

check on Renauldo. UES contracted this work out to First Advantage. First

Advantage, in turn, failed to conduct a complete and timely background check on

Renauldo, and UES failed to follow up with First Advantage or conduct its own

vetting, resulting in a violation of UES’s responsibilities under various regulations.

Had a proper background check been conducted, UES would have discovered that

Renauldo had six prior accidents and three prior license suspensions. Not only does

the evidence show that UES was negligent in hiring Renauldo, but it also shows that

UES was negligent in training and supervising its employee.

Thus, the jury verdict on liability is vacated, and following our de novo review

of the record, we assign 75% fault to Renauldo and 25% fault to UES.

Plaintiff’s Fifth Assignment of Error

In his fifth assignment of error, Plaintiff seeks review of the award of court

costs. We review a trial court’s award of costs under the abuse of discretion

standard. McDaniel v. Carencro Lions Club, 05-1013 (La.App. 3 Cir. 7/12/06), 934

So.2d 945, writ denied, 06-1998 (La.11/3/06), 940 So.2d 671.

Here, the trial court assessed costs based on the jury’s erroneous

apportionment of liability and then by applying its own interpretation to that verdict.

This meant that the costs owed to Plaintiff were arbitrarily reduced by 30%. For the

reasons given in our discussion of Plaintiff’s fourth assignment of error, the trial

12

court abused its discretion in its award of court costs. We therefore amend the

judgment and cast Defendants with 100% of the trial court costs.

Defendants’ First Assignment of Error

Defendants initially assert that the jury’s general damage award of

$3,231,941.87 to Plaintiff is grossly excessive.

General damages are those that are inherently speculative in nature and cannot

be fixed with mathematical certainty. Anderson v. Welding Testing Lab., Inc., 304

So.2d 351 (La.1974). The standard of review for a general damages award is abuse

of discretion. Id.

The Louisiana Supreme Court recently revisited the question of how appellate

courts are to review general damage awards in Pete v. Boland Marine and

Manufacturing Company, LLC, 23-170 (La. 10/20/23), ___ So.3d ___ (2023 WL

6937381). There, the supreme court revised the appellate court’s analysis by

declaring that an appellate court must consider relevant prior general damage awards

as guidance in determining whether a trier of fact’s award is an abuse of discretion.

Before this decision, appellate courts considered relevant prior damage awards only

after finding an abuse of discretion, a method which the supreme court found overly

subjective and, as a result, meaningless.

The supreme court went on to explain that a review of prior awards is a

starting point in evaluating whether a general damage award is an abuse of

discretion, since courts must also consider the specific facts and circumstances of

each case. Specifically, the court explained:

We do not abandon the two-step analysis for the appellate review of a
general damage award but modify the analysis as follows. The question
of whether the trier of fact abused its discretion in assessing the amount
of damages remains the initial inquiry. However, to evaluate this issue,
an appellate court is to include a consideration of prior awards in

13

similar cases, as well as the particular facts and circumstances of the
case under review. If an abuse of discretion is found, the court is to
then also consider those prior awards to determine “the highest or
lowest point which is reasonably within that discretion.”

Id. at *6 (citations omitted).

Plaintiff suffered significant, life-changing injuries from the 2019 accident.

Before the crash, Plaintiff was a healthy, fit, and active single father working two

jobs. By all accounts, he was a beloved member of the Vermilion Parish Sheriff’s

Office and an involved community member. Before the accident, he had not suffered

any injuries to his spine, shoulders, or lumbar region.

After the accident, Plaintiff underwent three surgeries: a lumbar fusion,

implantation of a spinal cord stimulator, and a shoulder surgery. At the time of trial,

he was scheduled to undergo a cervical fusion. He struggles with activities of daily

living. Because of a head injury caused by the accident, he also suffers from chronic

headaches and dizziness which will affect him for the rest of his life. Plaintiff’s

treating physicians tied his injuries to the accident, and Defendants did not call any

witnesses to contradict this testimony.

Compounding these physical hurdles, Plaintiff lost his job. He will never

again be able to work as a police officer. And all this has caused Plaintiff to suffer

from severe depression with suicidal thoughts.

Although Defendants admit that Plaintiff suffered serious back, neck, and

shoulder injuries which caused post-traumatic stress disorder, headaches, and major

depression, they contend that Plaintiff’s injuries are not life threatening and were

effectively treated with surgeries and a spinal cord stimulator. Defendants further

note that Plaintiff still has his mental faculties and is able to care for himself.

14

The cases offered by Defendants are largely distinguishable in that they fail

to address awards in “similar cases”: they are highly dissimilar in both fact and

degree of injury.2 Neither did we find the cervical and lumbar cases offered by

Defendants to be wholly persuasive as they did not reflect the range of injuries and

life-altering results suffered by Plaintiff. The most relevant case cited by Defendants

was Jeffries v. Prime Ins. Co., 21-161 (La.App. 3 Cir. 11/3/21), 334 So.3d 761, writs

denied, 21-1811, 21-1817 (La. 2/22/22), 333 So.3d 433, 436. There, this court

affirmed a general damage award of $1,525,808.00 for back injuries which resulted

in surgery with future recommended treatment. That case, however, did not involve

a head injury or any mental health issues.

By contrast, Plaintiff argues that the jury award is wholly supported by both

the totality of his injures and previous opinions. Plaintiff cites Franks v. State Nat’l

Ins. Co., 22-169 (La.App. 3 Cir. 1/25/23), 355 So.3d 1174, writ denied, 23-259 (La.

4/18/23), 359 So.3d. 512, wherein this court affirmed a jury’s general damage award

of $2,700,000.00. In that case, a wheelchair-bound plaintiff was injured in a motor

vehicle accident and suffered a back injury while being medically transferred to a

rehabilitation unit following a stroke. The accident caused the plaintiff’s pre-

2
DeRosier v. S. La. Contractors, 583 So.2d. 531 (La.App. 3 Cir.), writ denied, 587 So.2d.
700 (La.1991) (eighteen-year-old plaintiff with a permanent brain injury assessed with 75% fault);
Chamberlain v. State through Dept. of Transp. and Dev., 91-1942 (La.App. 1 Cir. 3/11/94), 633
So.2d 871 (seventeen-year-old near drowning victim with complicated capacity issues); Odom v.
City of Lake Charles, 00-1050 (La.App. 3 Cir. 1/31/01), 790 So.2d 51, writ denied, 01-1198 (La.
6/22/01), 794 So.2d 787 (one vehicle accident in which the driver was apportioned fault and in a
vegetative state); Wingfield v. State ex rel. Dept. of Transp. and Dev., 01-2668, 01-2669 (La.App.
1 Cir. 11/8/02), 835 So.2d 785, writs denied, 03-313, 03-339, 03-349 (La. 5/30/03), 845 So.2d
1059, cert. denied, 540 U.S. 950, 124 S.Ct. 419 (2003) (court reduced award to plaintiff who was
in a permanent minimally conscious state because he was not fully cognizant of his injuries and
award was duplicative); Bowie v. Young, 01-715 (La.App. 3 Cir. 3/20/02), 813 So.2d 562
(paralyzed plaintiff receives increased award); Boxie v. Lemoine, 07-905 (La.App. 3 Cir. 7/16/08),
988 So.2d 309, writs denied, 08-2014, 08-2019 (La. 11/10/08), 996 So.2d 1071 (quadriplegia
resulting from a stroke during surgery).

15

existing condition to become unstable, resulting in two cervical fusions. His treating

physician testified that he would suffer from headaches and balance issues for the

remainder of his life.

Plaintiff also adjusted the damage awards in a number of factually similar

cases to apply inflation and cost of living increases to calculate more accurate

current-day numbers. For example, in cases involving serious cervical and lumbar

injuries similar to Plaintiff’s injuries, the general damage awards were adjusted to

levels within the range of $1,000,000.00 to $4,400,000.00.3 Plaintiff further cites to

general damage awards for post-traumatic stress disorder which were adjusted to

$500,000.00 to $1,600,000.00. 4 Plaintiff also points to general damage awards for

shoulder injuries with surgery in the adjusted range of $795,000.00 to $878,000.00.5

Based on the totality of the circumstances, particularly Plaintiff’s physical,

mental, and life altering injuries, we cannot say that the jury abused its discretion in

awarding Plaintiff $3,231,941.87 in general damages.

Defendants’ Second Assignment of Error

Finally, Defendants seek review of the trial court’s decision to grant Plaintiff’s

motion in limine excluding “collateral source” evidence. Motions in limine are also

reviewed under the abuse of discretion standard. Noel v. Noel, 15-37 (La.App. 3 Cir.

5/27/15), 165 So.3d 401, writ denied, 15-1121 (La. 9/18/15), 178 So.3d 147.

3
Andrews v. Mosley Well Serv., 514 So.2d 491 (La.App. 3 Cir.), writ denied, 515 So.2d
807 (La.1987); Hall v. Landstar Ranger, Inc., 6:18-410 (W.D. La. 5/22/20).
4
Thompson v. Crawford, 17-1400 (La. 11/13/17), 229 So.3d 451; Warren v. Bergeron, 599
So.2d 369 (La.App. 3 Cir.), writ denied, 604 So.2d 995 (La.1992).

5
Vance v. Int’l House of Pancakes, LLC, 20-33 (La.App. 3 Cir. 10/28/20), 306 So.3d 529,
writ granted and reversed on other grounds, 20-1373 (La. 2/17/21), 310 So.3d 550; Neal v.
Wascom, 16-1230 (La.App. 1 Cir. 4/12/17), 218 So.3d 129.

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According to Defendants, although Plaintiff claims he incurred $529,872.13

in past medical expenses, the Vermilion Parish Sheriff’s Office was actually billed

$143,905.04 because of its pricing agreement with providers. Defendants claim that

neither Plaintiff nor the sheriff’s office will ever be liable for the remaining

“phantom charges,” and that all of Plaintiff’s medical expenses were paid by the

sheriff’s office under a self-insurance plan administered by United Healthcare with

Plaintiff paying no premium for the coverage. In a nutshell, Defendants contend that

the contractual discounts negotiated between Plaintiff’s providers and United are not

a collateral source, and that the trial court thus erred in allowing evidence of the

higher amount.

Significantly, this court expressly rejected Defendants’ arguments in Derrick

v. Lafayette City Parish Consolidated Government, 21-392 (La.App. 3 Cir.

12/08/21) (unpublished opinion). There, this court explained:

We find an employer’s relationship to its employee supports the
application of the collateral source rule just as the supreme court found
PCF’s relationship to a qualified healthcare provider does. As the
supreme court found in Thomassie [v. Amedisys Louisiana
Acquisitions, 20-1229 (La. 01/21/21), 308 So.2d 1165], we find that
Mr. Williams diminished his patrimony to obtain insurance benefits,
and the collateral source rule applies[.]

The record here shows that Plaintiff received health insurance as a benefit of

his employment with the Vermilion Parish Sheriff’s Office. The record also shows

that Plaintiff paid a $1,000.00 deductible and $5,000.00 in expenses to Lafayette

Surgical Specialty Hospital for treatment related to this accident and that Plaintiff

paid $95.00 per month in premiums for the insurance coverage.

Put simply, because Plaintiff diminished his patrimony to obtain insurance

benefits, the collateral source rule applies. We find no abuse of discretion in the trial

court’s decision to grant Plaintiff’s motion in limine.

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DISPOSITION

The judgment of February 27, 2023, which denied Plaintiff’s post-trial

motions, is reversed, and fault is apportioned as follows: Renauldo 75% and UES

25%.

The judgment of November 15, 2022, is amended to reflect the above

apportionment of fault, to reflect total damages owed to Plaintiff in the amount of

$5,000,000.00 (not $3,500,000.00), and to reflect that Defendants are assessed with

100% of all trial court costs. This judgment is affirmed in all other respects.

And the costs of this appeal are assessed to Defendants.

REVERSED IN PART;
AFFIRMED AS AMENDED.

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