Charles Smith and Jodenise Smith v. Stanley Ceasar, Jr., D/B/A Ceasar's Dump Truck Serv., Inc.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

23-689

CHARLES SMITH AND JODENISE SMITH

VERSUS

STANLEY CEASAR, JR., D/B/A
CEASAR’S DUMP TRUCK SERVICE,
ET AL.

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2019-4470-D
HONORABLE ROBERT L. WYATT, DISTRICT JUDGE

**********

JONATHAN W. PERRY
JUDGE

**********

Court composed of Elizabeth A. Pickett, Van H. Kyzar, and Jonathan W. Perry,
Judges.

AFFIRMED, IN PART;
REVERSED, IN PART.

James T. Rivera
Bryan D. Scofield
Jessica W. Marchand
Scofield & Rivera, LLC
Post Office Box 4422
100 E. Vermilion, Suite 301
Lafayette, Louisiana 70502
(337) 235-5353
COUNSEL FOR DEFENDANTS/APPELLANTS:
Clear Blue Specialty Insurance Company and
Stanley Ceasar, Jr. d/b/a Ceasar’s Dump Truck Service

Gregory T. Stevens
Monica Vela-Vick
Phelps Dunbar LLP
Post Office Box 4412
Baton Rouge, Louisiana 70821-4412
(225) 346-0285
COUNSEL FOR DEFENDANT/APPELLANT:
Indian Harbor Insurance Company

M. Benjamin Alexander
Derrick G. Earles
David C. Laborde
Mary K. Cryar
Laborde Earles Law Firm, LLC.
1901 Kaliste Saloom Road
Post Office Box 80098
Lafayette, Louisiana 70598-0098
(337) 261-2617
COUNSEL FOR PLAINTIFFS/APPELLEES:
Charles and Jodenise Smith

PERRY, Judge.

Stanley Ceasar, Jr. (“Mr. Ceasar”) doing business as Ceasar’s Dump Truck

Services, Clear Blue Specialty Insurance Company (“Clear Blue”), and Indian

Harbor Insurance Company (“Indian Harbor”) (hereinafter collectively referred to

as “Defendants”), suspensively appeal the trial court’s judgment, incorporating the

jury’s verdict, which awarded damages to Charles Smith (“Mr. Smith”) and Jodenise

Smith (“Mrs. Smith”) (hereinafter collectively referred to as “Plaintiffs”), for the

damages suffered when Mr. Smith was involved in a motor vehicle accident.

Additionally, Plaintiffs answered the appeal to challenge the trial court’s reduction

of Mrs. Smith’s award for loss of consortium. For the following reasons, we affirm

in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

On November 6, 2018, Mr. Smith, while in the course and scope of his

employment, was driving a 2002 Freightliner tanker truck owned by his employer,

Wastewater Specialties (“Wastewater”), when a collision occurred between his

vehicle and a dump truck being driven by Mr. Ceasar. Plaintiffs filed suit against

Mr. Ceasar d/b/a Ceasar’s Dump Truck Services, and their liability insurer, Clear

Blue, seeking damages for Mr. Smith’s personal injuries and Mrs. Smith’s loss of

consortium.

On March 8, 2021, Plaintiffs added Indian Harbor, an excess insurer to Mr.

Smith’s employer, Wastewater, as an additional defendant through a supplemental

and amending petition. Indian Harbor filed its answer and affirmative defenses,

admitting that it issued Policy Number US00085155L118A, an excess policy, to

Wastewater, which provided commercial liability coverage subject to certain terms,

conditions, limitations, and exclusions for the period of June 30, 2018 to June 30,

2019. Indian Harbor further claimed its policy contained an uninsured/underinsured

motorist (“UM”) rejection form which eliminated UM coverage under the policy

issued to Wastewater.

In February 2022, Plaintiffs filed a motion for summary judgment arguing

certain ambiguities in the above-mentioned UM rejection form invalidated

Wastewater’s purported rejection of UM coverage. Indian Harbor also filed a

motion for summary judgment seeking to dismiss Plaintiffs’ claims against it on the

basis that its excess commercial liability policy did not provide UM coverage

because Wastewater had validly rejected such coverage on its UM rejection form.

Following a hearing on the parties’ cross motions, the trial court orally ruled

that the UM coverage form submitted by Indian Harbor which purportedly reflected

Wastewater’s rejection of UM coverage on behalf of Wastewater was invalid.

Indian Harbor subsequently sought supervisory review from this court, which was

denied. Smith v. Ceasar, 22-267 (La.App. 3 Cir. 6/3/22) (unpublished writ opinion).

The matter was tried before a jury from October 11 through October 17, 2022.

Plaintiffs presented evidence contending that, as a result of the accident, Mr. Smith

suffered physical injuries requiring three separate operations, as well as a traumatic

brain injury which affects his mental capabilities.

At the conclusion of trial, the jury rendered a verdict in favor of Plaintiffs,

finding that Mr. Ceasar was 100% at fault for causing the accident,1 and awarding a

total of $5,107,609.23 in damages to Plaintiffs. Damages to Mr. Smith were

awarded in the following amounts:

Past Medical Expenses $360,459.23
Future Medical Expenses $470,250.00
Past Physical Pain and Suffering $300,000.00
Future Physical Pain and Suffering $500,000.00
Past Mental Pain and Suffering $675,000.00
Future Mental Pain and Suffering $700,000.00

1
Liability is not at issue on appeal.

2

Past Loss of Enjoyment of Life $500,000.00
Future Loss of Enjoyment of Life $500,000.00
Scarring and Disfigurement $0
Past Lost Earnings/Earning Capacity $285,346.00
Future Lost Earnings/Earning Capacity $341,554.00

Mrs. Smith was awarded $475,000.00 for loss of consortium.

The trial court entered a judgment in conformity with the jury’s verdict on

November 3, 2022.2 Defendants timely filed a Motion for Judgment

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

Remittitur on December 13, 2022. Therein, Defendants challenged the jury’s awards

for Mr. Smith’s general damages, future medical expenses, and future lost

earnings/earning capacity, as well as for Mrs. Smith’s loss of consortium. The trial

court denied the JNOV but granted, in part, the Motion for New Trial and/or

Remittitur as to Mrs. Smith’s loss of consortium claim only, reducing her damages

from $475,000.00 to $100,000.00.3 A judgment to this effect was issued on March

10, 2023.

Defendants then perfected suspensive appeals reiterating their challenges to

the jury’s awards for Mr. Smith’s general damages, future medical expenses, and

future lost earnings/earning capacity. Additionally, Indian Harbor contends the trial

court erred when it granted a summary judgment in Plaintiffs’ favor on the issue of

Wastewater’s rejection of UM coverage, as well as the trial court’s ruling granting

Plaintiffs’ motion in limine which resulted in limiting testimony from Defendants’

expert in neurosurgery, Dr. Thomas Bertuccini (“Dr. Bertuccini”).

2
This judgment reflected a reduction of the amount recoverable for past medical expenses
from $360,459.23, to the amount actually paid by the workers’ compensation intervenor, which is
$273,389.91.
3
A remittitur is an alternative to a new trial with the consent of the non-moving, opposing
party. La.Code Civ.P. art. 1814. If the opposing party rejects the remittitur, the new trial is held.

3

Plaintiffs answered Defendants’ appeals. Therein, Plaintiffs contend the trial

court erred when it reduced Mrs. Smith’s award for loss of consortium.

ASSIGNMENTS OF ERROR

On appeal, Mr. Ceasar and Clear Blue filed a brief, and Indian Harbor filed a

brief. Defendants assert the same three assignments of error:

(1) The [j]ury abused its discretion in awarding future pain and
suffering and future medical expenses to [Mr.] Smith when the
recommended procedures fell outside [Mr.] Smith’s life
expectancy.

(2) The [j]ury abused its discretion in awarding future lost earnings
and/or earning capacity without taking into consideration [Mr.]
Smith’s ability to work.

(3) The jury abused its discretion by awarding [Mr.] Smith
$3,175,000.00 in past and future general damages as such an
award is excessive.

In its separately filed brief, Indian Harbor asserts two additional assignments of

error:

(4) The [trial] court erred in finding UM coverage under the policy
was not properly rejected by Wastewater in accordance with
Louisiana law.

(5) The [trial] court erred by impermissibly limiting the testimony of
Defendants’ expert Dr. Thomas Bertuccini.

In answer to Defendants’ appeals, Plaintiffs assert the trial court’s reduction

of Mrs. Smith’s award for loss of consortium was manifestly erroneous.

APPELLANTS’ ARGUMENTS

Defendants argue that although experts testified Mr. Smith will more probably

than not need future adjacent level surgeries on his neck and back and a future

shoulder surgery, all of the recommended future surgeries fall at or outside of Mr.

Smith’s life expectancy. Thus, Defendants assert the jury abused its discretion in

awarding Mr. Smith future medical expenses in the sum of $470,250.00, and future

4

general damages in the sum of $1.7 million because Mr. Smith’s need for additional

surgeries will not occur during his lifetime.

Defendants contend the jury abused its discretion in awarding Mr. Smith

$351,554.00 in damages for future lost earnings/earning capacity. Defendants allege

the jury failed to take into consideration the testimony of two of Mr. Smith’s treating

physicians whom Defendants claim testified that Mr. Smith could perform sedentary

work and would benefit emotionally and mentally from doing so.

Defendants also assert the amount awarded in general damages to Mr. Smith

is excessive. Defendants allege the jury abused its discretion in finding Mr. Smith’s

injuries and post-accident condition warrant a general damage award totaling $3.175

million.

Additionally, Indian Harbor argues that surgical intervention as to Mr.

Smith’s cervical and lumbar spine was not reasonable or medically necessary, and

that the jury was unable to make this determination on their own because the trial

court improperly limited the testimony of Dr. Bertuccini, Defendants’ medical

expert. Indian Harbor further argues the trial court erred in ruling Wastewater did

not effectuate a valid rejection of UM coverage in its excess commercial liability

policy.

APPELLEES’ POSITION

Plaintiffs assert that the evidence established that Mr. Smith will need three

additional surgeries, notwithstanding life expectancy statistics. Plaintiffs argue, in

brief, Defendants’ arguments concerning Mr. Smith’s future medical expenses and

future general damages “cherry-pick the evidence in an effort to downplay Mr.

Smith’s injuries, exploit his age, and overstate his post-accident abilities.” Plaintiffs,

however, allege the complete evidence contradicts Defendants’ arguments and,

5

further, confirms that the jury’s decision was reasonable and not an abuse of its vast

discretion.

Plaintiffs contend that the damages awarded by the jury are supported by the

law and the evidence. They assert the amounts awarded by the jury are all well

within its vast discretion and are supported by prior awards in similar cases.

Plaintiffs allege Defendants filed multiple expert witness lists, each of which

expressly limited the scope of Dr. Bertuccini’s opinions to future care and disability.

Thus, Plaintiffs argue the trial court did not abuse its discretion in not allowing

opinion testimony from Dr. Bertuccini on the subjects of causation or Mr. Smith’s

past medical care.

Plaintiffs further argue the trial court did not err in finding that the UM

rejection form relied upon by Indian Harbor does not comply with the dictates of

Louisiana law. Thus, Plaintiffs contend there is UM coverage under the excess

commercial liability policy issued by Indian Harbor to Wastewater.

Finally, Plaintiffs contend the trial court erred in granting Defendants’ motion

for remittitur, thereby reducing the loss of consortium award rendered by the jury.

Plaintiffs argue the trial court’s reduction of Mrs. Smith’s loss of consortium

damages was manifestly erroneous.

LAW AND DISCUSSION

Assignment of Error No. 5—Limitation of Dr. Thomas Bertuccini’s testimony

We begin by reviewing Indian Harbor’s assignment of error concerning the

trial court’s ruling granting Plaintiffs’ motion in limine at a hearing held immediately

prior to the start of the jury trial. Indian Harbor argues the trial court erred in limiting

the testimony of Dr. Bertuccini and depriving the jury from hearing his expert

opinions on whether the accident herein caused Mr. Smith’s injuries and whether

6

surgical intervention on his cervical and lumbar spine was reasonably or medically

necessary.

The record reflects that in February 2022, Defendants filed a motion to compel

an additional medical exam (“AME”) under La.Code Civ.P. art. 1464. Defendants

sought a medical examination of Mr. Smith by Dr. Bertuccini. Also in February

2022, and again in June 2022, Defendants filed expert witness lists, noting that Dr.

Bertuccini “may [be called] . . . as a medical expert with respect to any future medical

treatment and/or permanent restrictions related to [Mr. Smith’s] alleged injuries

sustained in the accident at issue.”

Mr. Smith was eventually examined by Dr. Bertuccini on August 8, 2022.

During his trial deposition on September 22, 2022, Dr. Bertuccini offered testimony

regarding the reasonableness or necessity of Mr. Smith’s past medical care and

opined on whether the past medical care was related to the accident.

Plaintiffs filed two motions. The first, a Daubert Motion and Motion in

Limine to Exclude Certain Testimony of Dr. Bertuccini, was filed on September 28,

2022. Therein, Plaintiffs sought to exclude Dr. Bertuccini’s testimony altogether,

arguing his methodology was unreliable—his opinion is based upon his own

patients, none of whom underwent a lumbar fusion or a four-level cervical fusion—

and, thus, his testimony would be irrelevant.

The second, a Motion to Strike, and Alternative Motion in Limine, was filed

on October 3, 2022. Therein, Plaintiffs sought to strike Dr. Bertuccini’s opinions

not related to Mr. Smith’s future medical care and permanent restrictions as beyond

the scope of Defendants’ own expert designations. Plaintiffs alleged that

Defendants’ expert witness designation never expressed that Dr. Bertuccini would

opine on the subjects of accident causation or on the reasonableness or necessity of

Mr. Smith’s past medical care. Thus, Plaintiffs argued Defendants violated the

7

mandate of La.Code Civ.P. art. 1428(1) to seasonably supplement discovery

responses with respect to identifying each person expected to be called as an expert

witness at trial, the substance of and the subject matter on which the witness is

expected to testify.

In response, Defendants sought to strike Plaintiffs’ Daubert motion as

untimely. Citing La.Code Civ.P. art. 1425(F), Defendants asserted that a motion “to

determine whether a witness qualifies as an expert or whether the methodologies

employed by such witness are reliable . . . shall be filed not later than sixty days prior

to trial” and, furthermore, the trial court “shall rule on the motion not later than thirty

days prior to the trial.” Defendants alternatively argued Plaintiffs’ motion failed to

sufficiently establish the methodologies utilized by Dr. Bertuccini were unreliable.

Defendants requested denial of Plaintiffs’ motion to strike, arguing that their

identification of Dr. Bertuccini on their expert witness list was not intended to limit

his evaluation of Mr. Smith’s future treatment. According to Defendants, this is

clear as the description includes the necessity of Dr. Bertuccini to examine all of Mr.

Smith’s alleged injuries to determine his permanent restrictions, if any.

Arguments on Plaintiffs’ motions were heard on October 11, 2022,

immediately prior to the start of jury selection. The trial court denied Plaintiffs’

request to eliminate Dr. Bertuccini’s testimony; however, it granted Plaintiffs’

request to limit Dr. Bertuccini’s testimony. The trial court ruled Dr. Bertuccini could

testify “regarding the future medical and permanent restrictions” but he could not

criticize Mr. Smith’s prior procedures or opine regarding causation. Consequently,

the video deposition of Dr. Bertuccini was redacted for trial to exclude opinions on

the reasonableness and/or necessity of Mr. Smith’s past medical care.4

4
The unredacted deposition of Dr. Bertuccini was proffered into the record.

8

On appeal, Indian Harbor contends the trial court’s ruling, made on the

morning of trial, impeded the fair presentation of evidence to the jury, resulting in

prejudice to Defendants. In brief, Indian Harbor asserts that the trial court’s ruling

could create a “chilling effect” by:

effectively encouraging plaintiffs and plaintiffs’ counsel to have
surgeries pre-litigation due to the trial court’s view that if the clinical
evaluation is done after a medical procedure, the expert would not be
able to go back and comment on whether or not the procedure was
appropriate or if it was done correctly.

Thus, Indian Harbor argues the limitations on Dr. Bertuccini’s testimony were

erroneous.

In contrast, Plaintiffs assert the issue is not whether any defendant can ever

offer expert testimony regarding pre-treatment and or pre-surgery recommendations.

Rather, the question here is whether Defendants should be permitted to say one thing

pretrial and then another at trial. Plaintiffs contend the trial court correctly

concluded the answer is no.

Plaintiffs further argue that in Louisiana, a plaintiff is entitled to recover the

full cost for treatment—even over treatment or unnecessary treatment—for injuries

resulting from the negligence of a tortfeasor, unless the defendant alleges and proves

the treatment was incurred in bad faith. See Jones v. Progressive Sec. Ins. Co, 16-

463 (La.App. 3 Cir. 12/29/16), 209 So.3d 912. Plaintiffs assert Defendants have

made no such allegation and offered no evidence in this matter, rendering Dr.

Bertuccini’s criticisms of Mr. Smith’s treatment irrelevant.

“On appeal, a trial court’s admission or exclusion of evidence is subject to an

abuse of discretion review.” Libersat v. J & K Trucking, Inc., 00-192, p. 11 (La.App.

3 Cir. 10/11/00), 772 So.2d 173, 179, writ denied, 01-458 (La. 4/12/01), 789 So.2d

598. Likewise, motions in limine are 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,

9

15-1121 (La. 9/18/15), 178 So.3d 147. “Courts have regularly exercised their

inherent powers by imposing sanctions for failing to timely supplement discovery

responses.” Bozeman v. State, 34,430, p. 10 (La.App. 2 Cir. 4/4/01), 787 So.2d 357,

365, writ denied, 01-1341 (La. 6/29/01), 794 So.2d 813.

Louisiana Code of Civil Procedure Article 1428(1) provides:

A party is under a duty seasonably to supplement his response with
respect to any question directly addressed to the identity and location
of persons having knowledge of discoverable matters, and the identity
of each person expected to be called as an expert witness at trial, the
subject matter on which he is expected to testify, and the substance of
his testimony.

Defendants’ expert witness lists specifically limited Dr. Bertuccini’s opinions

“to any future medical treatment and/or permanent restrictions related to Plaintiffs’

alleged injuries sustained in the accident at issue.” It was not until Dr. Bertuccini’s

deposition—less than three weeks before trial was to begin—that Defendants’ intent

to expand the scope of Dr. Bertuccini’s testimony was made known to Plaintiffs.

Based upon Defendants’ failure to fulfill the duty to timely, and accurately,

supplement their expert witness list, we find no abuse of discretion in the trial court’s

ruling. The trial court properly limited the testimony offered by Dr. Bertuccini to

the scope identified in Defendants’ expert designations. This assignment of error

asserted by Indian Harbor lacks merit.

Damages

Before tackling the merits of the remaining assignments of error, further

development of the trial evidence is necessary. The evidence shows the facts of the

underlying accident as being a collision between a tanker truck being driven by Mr.

Smith and a dump truck bring driven by Mr. Ceasar on November 6, 2018.

At trial, Plaintiffs presented testimony and evidence as to Mr. Smith’s

treatment with: Dr. Lon Baronne (“Dr. Baronne”), an orthopedic surgeon (spine);

10

Dr. Matthew Williams (“Dr. Williams”), an orthopedic surgeon (shoulder); Dr.

Darren Strother (“Dr. Strother”), a neuropsychologist; Dr. David Weir (“Dr. Weir”),

a neurologist; Dr. Doris Nevin (“Dr. Nevin”), a medical psychologist; and Dr. James

White (“Dr. White”), an otorhinolaryngologist (“ENT”).5 The evidence showed that

Mr. Smith had four-level neck fusion surgery, two-level back fusion surgery, and

shoulder replacement surgery. Mr. Smith was also diagnosed as having sustained a

traumatic brain injury (“TBI”) with associated chronic headaches and tinnitus, which

negatively affected his cognitive and psychological abilities. Both Plaintiffs testified

as to how Mr. Smith’s injuries negatively affected their marriage and significantly

reduced his quality of life.

Mr. Smith testified the accident caused him to experience pain in his right

shoulder, right thigh, lower back, right forearm, right knee,6 and right hip. A few

days after the accident, Mr. Smith also began to experience ringing in his ears, or

tinnitus.

Mr. Smith testified that as a result of his injuries caused by the accident, he

underwent three surgeries: cervical fusion, lumbar fusion, and shoulder replacement.

According to Mr. Smith, his neck pain was eliminated by surgery, and his back pain

decreased sixty to seventy percent after surgery on his lower back; however, Mr.

Smith noted that although his back pain is tolerable now, sitting or standing for long

periods causes pain. As to his right shoulder, Mr. Smith testified his shoulder pain

was eliminated by surgery, but he does not have as much mobility in his right

shoulder as he did before the accident.

5
This is not an exhaustive list of all evidence and testimony introduced and accepted into
the record. Further, though not specifically indicated, each medical witness was accepted as an
expert in their respective field.
6
Though he ultimately had knee surgery, Mr. Smith sought no damages for his right knee.

11

As to tinnitus, Mr. Smith recalled experiencing ringing in his ears

approximately four or five days after the accident. He stated the ringing is constant

and causes him to experience headaches and dizziness. Mr. Smith has tried hearing

aids recommended by doctors but complained that the white noise caused by the

hearing aids gives him headaches and causes insomnia. Though he was not wearing

hearing aids at trial, Mr. Smith testified he has not ruled out using hearing aids in the

future.

Mr. Smith also detailed having memory issues—he is often forgetful during

conversations, losing his train of thought. He also described feeling depressed,

anxious, and admitted he is occasionally short-tempered—traits he did not

experience before the accident.

At the time of his accident, Mr. Smith was driving a truck, working as a Class

A Hazardous Waste operator for Wastewater. Prior to working for Wastewater, Mr.

Smith worked in banking for almost thirty years. After retiring from banking, he

obtained his Class A commercial drivers’ license, worked as a school bus driver, and

has even worked security at a casino. He also served as Mayor of Oberlin for three

years.

Mr. Smith testified it was his plan to work until the age of seventy-two, had

the accident not occurred. At trial in 2022, Mr. Smith turned sixty-six. Although he

stated he wished he could return to work, Mr. Smith testified his physical and mental

injuries made him unable to work. Mr. Smith also testified that after his accident,

he and his wife could no longer afford to live in Lake Charles. They moved in with

his wife’s parents in Oberlin because his wife also had to quit working to care for

him.

Before the accident, Mr. Smith described how he was healthy and very active,

in his work life, but especially in his family life. Though he can still drive and attend

12

his grandchildren’s sporting events, Mr. Smith testified his wife does most of the

driving, and he can no longer actively play or participate in sports with his

grandchildren like he could before the accident. He also relayed how the accident

and his resulting injuries have limited his ability to hunt, fish, and help with

household chores, and have made his sexual relationship with his wife nonexistent.

Although he is still able to travel with his wife, Mr. Smith testified he has to be

pushed in a wheelchair in airports, and what he can do when he travels now is

restricted significantly compared to what he could do before the accident.

Mrs. Smith also testified about the impact her husband’s accident had on their

lives.7 She described their lifestyle before the accident as normal, but very active,

especially in the lives of their children and grandchildren. Like Mr. Smith, Mrs.

Smith was working at the time of the accident. Although she enjoyed the job, which

allowed her to travel around the country, she quit working to care for her husband.8

Mrs. Smith testified their lives have been financially impacted due to Mr. Smith’s

inability to work and her need to care for him full time.

Because of Mr. Smith’s traumatic brain injury, Mrs. Smith handles her

husband’s affairs, such as driving him where he needs to go, accompanying him to

medical appointments, wheeling him in a wheelchair when they travel, scheduling

and remembering his appointments, and helping him effectively communicate by

regularly redirecting his thoughts and conversations. According to Mrs. Smith,

though they can and do still travel, they are limited, especially in their visits with

their children and grandchildren, due to Mr. Smith’s lack of stamina.

7
Mr. and Mrs. Smith have been married since 1979.
8
Mrs. Smith had retired from working for the Federal Bureau of Prisons. At the time of
Mr. Smith’s accident, she had a part time job with the American Correctional Association, which
entailed traveling around the United States to audit prisons.

13

Dr. Baronne, Mr. Smith’s spine surgeon, performed an anterior cervical

discectomy and fusion from C3 to C7 with a posterior instrumentation (“neck

surgery”) on November 20, 2019. In September 2020, Dr. Baronne performed an

anterior lumbar interbody fusion, along with a lateral interbody fusion on L4-L5 and

L5-S1 (“back surgery”). Dr. Baronne testified Mr. Smith’s neck surgery was

recommended to avoid Mr. Smith’s neurological deterioration becoming permanent.

After the neck surgery, Mr. Smith improved, which indicated to Dr. Baronne the

surgery was the proper procedure to perform. After the back surgery, Mr. Smith’s

leg pain resolved, and he was able to function more, which again indicated to Dr.

Baronne the surgery was required and successful. Dr. Baronne testified that Mr.

Smith’s neck and back surgeries were medically necessary and, more probably than

not, related to the accident.

Regarding future treatment, Dr. Baronne opined that Mr. Smith will more than

likely need both an additional neck and back surgery, based on data regarding the

rate of adjacent segment degeneration. He testified Mr. Smith will more than likely

need another neck surgery in seventeen to twenty years, and another back surgery in

fifteen to seventeen years. However, Dr. Baronne explained Mr. Smith may need

those surgeries sooner because “someone with a four-level fusion, for somebody

who has a total hip arthroplasty, with revision and an abnormal gait, it may even be

sooner than that, unfortunately.”9

Dr. Williams, Mr. Smith’s shoulder surgeon, performed an unconstrained

right shoulder replacement on March 29, 2021.10 Dr. Williams testified his initial

examination of Mr. Smith revealed limited range of motion. He reviewed an MRI

9
Mr. Smith’s hip surgery occurred prior to the accident herein.
10
Dr. Williams recommended that Mr. Smith undergo back surgery first because Mr. Smith
would be unable to use his shoulder for over six months after this surgery.

14

of Mr. Smith’s shoulder, which showed advanced arthritis that would have pre-

existed the accident. However, since Mr. Smith reported that he had no shoulder

issues prior to the accident, Dr. Williams testified Mr. Smith’s post-accident

symptomatic arthritis, which was the reason he operated, was more likely than not

caused by the accident.

Regarding future treatment, Dr. Williams opined there is a statistical risk that

the plastic socket component will become loose or painful. He testified Mr. Smith

will more than likely need shoulder revision surgery by the age of eight-five.

Dr. Strother,11 Mr. Smith’s neuropsychologist, diagnosed Mr. Smith with mild

TBI, complicated versus uncomplicated, unspecified neurocognitive disorder, and

adjustment disorder with mixed anxiety and depression. Dr. Strother testified that

Mr. Smith had evidence of cognitive impairments, including difficulty with

attention, memory, efficiency of thinking, and difficulty adjusting emotionally. He

opined Mr. Smith’s diagnoses were more likely than not related to the November

2018 accident.

Dr. Weir,12 Mr. Smith’s neurologist, diagnosed Mr. Smith with post-

concussive syndrome on May 28, 2019, six months after the accident. Dr. Weir

testified that Mr. Smith complained to him of suffering headaches, short-term

memory loss, difficulty controlling his emotions, difficulty sleeping, and trouble

focusing. Dr. Weir concluded Mr. Smith has TBI with neurocognitive impairments,

short-term memory problems, difficulty focusing and concentrating, and some

language difficulties. His diagnosis was supported by an MRI DTI (magnetic

resonance imaging diffusion tensor imaging), as well as Dr. Strother’s evaluation

11
Dr. Strother was accepted as an expert in the field of neuropsychology and/or traumatic
brain injury.
12
Dr. Weir was accepted as an expert in the field of neurology, specifically with an
expertise in the diagnosis and treatment of mild traumatic brain injury.

15

finding neurocognitive disorder. Dr. Weir testified Mr. Smith’s headaches did not

fully resolve post-neck surgery; thus, he attributed them to posttraumatic headaches

originating from the brain, not neck.

Dr. Weir testified that two-years post-accident, Mr. Smith had made at least

95% of the progress he was expected to make. Although Mr. Smith had improved

some, Dr. Weir testified that more likely than not, Mr. Smith will never fully get

back to his pre-accident condition. He also opined that Mr. Smith’s TBI, and

prognosis, were more likely than not related to the accident.

Mr. Smith was referred to Dr. Nevin, a psychologist, by Dr. Weir, for

depression and anxiety. Dr. Nevin testified that Mr. Smith reported a constant

depressed mood and that he was easily distracted, frequently fatigued, and suffered

a drop in functioning. She diagnosed Mr. Smith with a depressive disorder with

anxiety, and signs involving cognitive functions and awareness. Dr. Nevin opined

that Mr. Smith suffered from depression and an overlay of anxiety due to the changes

in his life because of the accident.

Mr. Smith was seen by Dr. White, an ENT, for tinnitus—a constant high

frequency pitch, as well as a pulsatile component (a throbbing sound like the

heartbeat)—in both ears. Dr. White recommended a trial of amplification and

tinnitus masking with hearing aids. Though Mr. Smith experienced hearing loss

prior to the accident, Dr. White testified the only reason Mr. Smith needs hearing

aids is to cope with noticeable and bothersome tinnitus which did not exist before

the accident. Moreover, Dr. White testified that tinnitus can be caused by trauma;

thus, it was his opinion that Mr. Smith’s tinnitus was more likely than not related to

the accident.

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Assignment of Error No. 1—Future Medical Expenses & Future Pain and
Suffering

Returning to the assignments of error, Defendants first urge that the jury’s

awards for future medical expenses and future pain and suffering are an abuse of

discretion. Mr. Smith was awarded $470,250.00 for future medical expenses and a

total of $1.7 million for future general damages—comprised of $500,000.00 for

future physical pain and suffering; $700,000.00 for future mental pain and suffering;

and $500,000.00 for future loss of enjoyment of life.

“The proper standard for determining whether a plaintiff is entitled to future

medical expenses is proof by a preponderance of the evidence the future medical

expense will be medically necessary.” Menard v. Lafayette Ins. Co., 09-1869, p. 13

(La. 3/16/10), 31 So.3d 996, 1006. As the Menard court further explained, although

an award for future medical expenses must be established with some degree of

certainty, such awards “generally do not involve determining the amounts, but turn

on questions of credibility and inferences,” therefore, much discretion is afforded to

the factfinder’s evaluation of expert testimony. Id. (quotation omitted). “Where

there are two permissive views of the evidence, the factfinder’s choice between them

cannot be manifestly erroneous or clearly wrong.” Id. at 1007.

Defendants argue the recommended future surgeries allegedly fall at or

outside of Mr. Smith’s statistical life expectancy. Thus, they contend the jury’s

award for future medical expenses was an abuse of discretion which should be

reduced and, consequently, so should his future general damage awards.

The basis for Defendants’ contentions stems from the testimony of Dr. Shelly

Savant (“Dr. Savant”), Plaintiffs’ expert life care planner. Dr. Savant explained that

she formulated a life care plan for Mr. Smith based on a life expectancy age of

eighty-three. Mr. Smith was sixty-five years old on the date he was examined by

17

Dr. Savant in May 2022,13 and on the date her life care plan was generated in

September 2022. Dr. Savant included the costs of three additional surgeries—neck,

back, and shoulder—as recommended by Drs. Baronne and Williams in the life care

plan she formulated for Mr. Smith.14

The calculation of Mr. Smith’s future medical expenses was formulated by

Jason Schellhaas, Plaintiffs’ expert certified public accountant (“CPA”).15 Mr.

Schellhaas’ calculation of future medical expenses included those sums associated

with the additional neck, back, and shoulder surgeries, as well as with post-surgery

care in relation to each of the future surgeries included in Dr. Savant’s life care plan.

Defendants allege the jury failed to take into consideration Mr. Smith’s age

when it awarded future damages. Defendants specifically point to Dr. Williams’

testimony that Mr. Smith would need shoulder revision surgery by the age of eighty-

five, and Dr. Baronne’s testimony that Mr. Smith would need another neck surgery

in seventeen to twenty years—between the ages of eighty-three and eighty-six—and

another back surgery in fifteen to seventeen years—between the ages of eighty-one

and eighty-three. Thus, Defendants assert that the award for Mr. Smith’s future

medical expenses should be reduced because even if additional surgeries are

recommended, according to life expectancy statistics, Mr. Smith will more probably

than not be deceased by the time the additional surgeries would be needed.

Plaintiffs argue the jury heard Mr. Smith’s treating physicians testify he would

more likely than not, based on a reasonable degree of medical certainty, require three

future orthopedic surgeries, notwithstanding life expectancy statistics. Plaintiffs

13
Mr. Smith turned sixty-six during the trial in this matter, October 13, 2022.
14
Dr. Savant attributed $254,008.75 for “Surgical/Interventional Treatment” in the life care
plan for Mr. Smith, with the grand total being $395,317.60.
15
Mr. Schellhaas was also accepted as an expert in computing lost wages and present value
of the life care plan.

18

specifically refer to Dr. Baronne’s explanation that Mr. Smith’s need for surgery

could be sooner in light of his past hip surgery and as “someone with a four-level

fusion . . . and an abnormal gait[.]” Plaintiffs also reference testimony offered by

Defendants’ expert, Dr. Bertuccini, a spine neurosurgeon who performed an AME

of Mr. Smith. Despite Dr. Bertuccini testifying that there is no evidence Mr. Smith’s

future surgeries will occur, he also acknowledged that predicting what medical care

a patient will have in the future “is ludicrous, because no one can do that.” Thus,

Plaintiffs contend the jury’s decision to award the costs of three future orthopedic

surgeries was reasonable.

Plaintiffs also assert Defendants did not present any expert to refute Mr.

Schellhaas’ calculations concerning the cost of Mr. Smith’s future medical care. Mr.

Schellhaas calculated the value of the life care plan prepared by Dr. Savant to be

$470,250.00, which reflects the amount the jury awarded Mr. Smith for future

medical expenses.

In awarding the exact amount calculated by Mr. Schellhaas for Mr. Smith’s

future medical care, we find the jury clearly accepted the testimony of Plaintiffs’

experts concerning his need for future medical care or rejected Defendants’

contention that Mr. Smith’s age determined the likelihood, or unlikelihood, that he

would undergo future surgeries. After reviewing the record in its entirety, we do not

find it was manifestly erroneous for the jury to conclude Plaintiffs proved an

entitlement to future medical care and an entitlement to expenses for such. Thus,

we find no merit to Defendants’ first assignment of error.

Assignment of Error No. 2—Future Lost Earnings/Earning Capacity

Defendants also assign error with the jury’s future lost earnings/earning

capacity award, urging the award to be an abuse of discretion because the jury

allegedly failed to take into consideration testimony from two of Mr. Smith’s

19

treating physicians regarding his ability to work. The jury awarded Mr. Smith

$351,554.00 for future lost earnings/earning capacity based on the amount calculated

by Mr. Schellhaas. Though his calculation was based on the presumption that Mr.

Smith would not be returning to any type of employment, Mr. Schellhaas

acknowledged his calculation would be affected if Mr. Smith could do some type of

employment.

Mr. Schellhaas testified his opinions regarding Mr. Smith’s inability to work

were based on the Conservant Healthcare report prepared by Plaintiffs’ expert

vocational rehabilitation counselor, Joyce Beckwith (“Ms. Beckwith”). Ms.

Beckwith, also a certified life care planner, testified Mr. Smith was not capable of

any future employment; however, she conceded that if a treating physician testified

Mr. Smith could work, she would defer to that physician.

Defendants argue the evidence at trial did not establish Mr. Smith cannot

return to work. They allege that two of Mr. Smith’s treating physicians—

specifically Drs. Baronne and Strother—testified Mr. Smith could perform sedentary

work. Defendants also point to the testimonies of Dr. Bertuccini, who opined there

was no physical reason Mr. Smith cannot work, as well as the testimony of their

expert vocational rehabilitation counselor, Stanley McNabb. Mr. McNabb’s opinion

that Mr. Smith could perform sedentary jobs was based on Dr. Bertuccini’s opinion.

In contrast, Plaintiffs contend the jury’s lost earnings/earning capacity award

was not manifestly erroneous. They point to Mr. Smith’s work history, arguing the

jury clearly believed he would work if he could. Further, Plaintiffs contend the jury

was well within its discretion to accept the testimony of their experts over that of the

defense.

Our review of the evidence revealed that Drs. Baronne and Strother both

testified they would defer to the vocational rehabilitation counselor who worked

20

with Mr. Smith, i.e., Ms. Beckwith, as to what types of work, if any, Mr. Smith may

or may not be able to do given his current condition. Ms. Beckwith testified there

was no job Mr. Smith could perform due to his physical and mental limitations.

“The jury’s determination of the amount, if any, of an award of damages,

including lost earning capacity, is a finding of fact.” Ryan v. Zurich Amer. Ins. Co.,

07-2312, p. 7 (La. 7/1/08), 988 So.2d 214, 219.

Although the jury was presented with conflicting evidence on this issue of Mr.

Smith’s future lost wages/earning capacity, there was a reasonable basis for the

jury’s award. This award was not manifestly erroneous. Thus, we find no merit to

Defendants’ second assignment of error.

Assignment of Error No. 3—General Damages

Defendants also assign error with the jury’s award of $3,175,000.00 in past

and future general damages to Mr. Smith, urging such an award is excessive and

should be reduced. The jury awarded Mr. Smith general damages for physical pain

and suffering, mental pain and suffering, and loss of enjoyment of life.

The aim of general damages is to restore the plaintiff to the circumstances he

or she was in just before the injury occurred. Anderson v. State of Louisiana, 18-

001 (La.App. 3 Cir. 8/29/18), 258 So.3d 925. “Pain and suffering, both physical and

mental, refers to the pain, discomfort, inconvenience, anguish, and emotional trauma

that accompanies an injury.” McGee v. A C & S, Inc., 05-1036, p. 5 (La. 7/10/06),

933 So.2d 770, 775. “Loss of enjoyment of life, sometimes known as hedonic

damages, refers to the detrimental alterations of a person’s life or lifestyle or a

person’s inability to participate in the activities or pleasures of life that were formerly

enjoyed.” Id. at 773.

“In the assessment of damages in cases of offenses, . . . much discretion must

be left to the judge or jury.” La.Civ.Code art. 2324.1. General damages, which

21

include pain and suffering, “are inherently speculative in nature and cannot be fixed

with mathematical certainty.” Wainwright v. Fontenot, 00-492, p. 6 (La. 10/17/00),

774 So.2d 70, 74 (citation omitted).

In Pete v. Boland Marine & Manufacturing Co., LLC, 23-170 (La. 10/20/23),

379 So.3d 636, the Louisiana Supreme Court modified the role of the appellate court

in reviewing general damages. Specifically, the supreme 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 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 644 (citation omitted). Thus, “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.” Levine v.

Nationwide Agribusiness Ins. Co., 23-488, 23-489, p. 13 (La.App. 3 Cir. 3/6/24),

381 So.3d 908, 920.

With the previously discussed evidence in support of Mr. Smith’s general

damage award, we now review general damage awards in similar cases, noting,

however, that no two cases are alike. We consider the following cases, as they are

the most recent and authoritative, in determining whether the award is so excessive

as to constitute an abuse of discretion.

In Sabillon v. Max Specialty Ins. Co., 13-513 (La.App. 4 Cir. 3/12/14), 137

So.3d 707, the fourth circuit upheld a jury’s general damage award totaling

$3,833,333.00. There, the plaintiff suffered a head injury resulting in a TBI with

tinnitus, memory loss, headaches, dizziness, as well as cervical, lumbar and shoulder

pain, with a lumbar surgery recommendation. Adjusted for inflation as of the

22

October 2022 trial date, using the U.S. Bureau of Labor Statistics Consumer Price

Inflation (“CPI”) Calculator,16 this award was $4,834,587.71 at trial.

In 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, this court upheld a jury’s

general damage award of $2.7 million. There, the plaintiff underwent two neck

surgeries, resulting in a complete seven-level fusion of his cervical spine. The

plaintiff also needed future neck surgery.

In this case, the jury heard Plaintiffs testify that the accident completely

changed Mr. Smith’s life. He suffered physical injuries, which required three major

surgeries, and a brain injury, which affected his cognitive skills. Whereas Mr. Smith

was healthy, active, and content, this accident has left him significantly inactive,

frequently in pain, depressed, and anxious.

Considering the evidence before us, the general damage awards in similar

cases, and the totality of the circumstances in this case, particularly Mr. Smith’s

physical and mental injuries, as well as the degree in which these injuries have

affected his life, we cannot say the jury abused its discretion in awarding

$3,175,000.0 in past and future general damages to Mr. Smith. Defendants’ third

assignment of error is meritless.

Appellees’ Answer to Appeal—Mrs. Smith’s Loss of Consortium

The jury awarded Mrs. Smith $475,000.00 for her loss of consortium

damages. The trial court granted Defendants’ Motion for New Trial and/or

Remittitur, reducing the jury’s loss of consortium award to Mrs. Smith to

$100,000.00. The trial court reasoned:

[B]ased on what I witnessed in Court, the loving relationship that these
parties have for each other, yes, I recognized [Mrs.] Smith is going to
be put out because of the limitations that are on Mr. Smith because of

16
The CPI Calculator is located at https://www.bls.gov/data/inflation_calculator.htm.

23

the accident. $475,000 is just way out there. That is going to be
reduced to $100,000.

In answer to appeal, Plaintiffs contend the trial court’s reduction of the loss of

consortium damages was manifestly erroneous. We agree.

Under La.Code Civ.P. art. 2083(B), the appeal court “shall consider the

reasonableness of the underlying jury verdict.” The compensable elements

encompassed in a loss of consortium claim include “pecuniary such elements as loss

of services and nonpecuniary such elements as loss of love, companionship,

affection, society, sexual relations, comfort and solace.” Thibodeaux v. Gulfgate

Constr., LLC, 18-676, p. 13 (La.App. 3 Cir. 3/7/19), 270 So.3d 721, 731. “Loss of

consortium is a harm to a relational interest which occurs when the other party to the

relationship suffers physical harm (invasion of an interest or personality.” McGee,

933 So.2d at 779.

In Franks, 355 So.3d 1174, this court upheld a $500,000.00 jury award for

loss of consortium to the wife of a plaintiff whose accident caused his pre-existing

condition to become unstable, requiring two separate cervical fusion surgeries.

There, the jury heard evidence of the plaintiff’s need for his wife to care and to attend

to him on a daily basis. In this case, Mrs. Smith has also had to devote much of her

time tending to her husband’s needs—particularly in keeping to his calendar and

attending his doctor’s visits. She also described how much their pre-accident

activities have been altered by the accident and Mr. Smith’s resulting injuries which

has necessitated three separate surgeries and hundreds of visits with numerous

doctors, most of which Mrs. Smith has attended with Mr. Smith.

For these reasons, we find the trial court erred in granting Defendants’ Motion

for New Trial and/or Remittitur, reducing the jury’s loss of consortium award to

Mrs. Smith to $100,000.00.

24

Assignment of Error No. 4—Summary Judgment

Despite the denial of a motion for summary judgment being generally

considered an interlocutory ruling which is not appealable, “[w]hen an appeal is

taken from a final judgment, the appellant is entitled to seek review of all adverse

interlocutory judgments prejudicial to him in addition to the review of the final

judgment.” Robertson v. Doug Ashy Bldg. Materials, Inc., 14-141, p. 6, fn. 13

(La.App. 1 Cir. 12/23/14), 168 So.3d 556, 562. See also La.Code Civ.P. arts. 968

and 2083.

In Meziere v. State Farm Mut. Auto. Ins. Co., 21-430, pp. 2–4 (La.App. 3 Cir.

2/9/22), 362 So.3d 555, 558–59, this court explained that:

A motion for summary judgment should be granted only if the
pleadings, depositions, answers to interrogatories, and admissions,
together with any affidavits admitted for purposes of the motion for
summary judgment, show there is no genuine issue of material fact and
that mover is entitled to judgment as a matter of law. La. Code Civ.P.
art. 966(A)(3). On a motion for summary judgment, if the issue before
the court is one on which the party bringing the motion will bear the
burden of proof at trial, the burden of showing that there is no genuine
issue of material fact is on the party bringing the motion. La.Code
Civ.P. art. 966(D)(1); Hart v. Mabou, 21-28 (La.App. 3 Cir. 6/23/21),
323 So.3d 939, writ denied, 21-1479 (La. 12/21/21), 329 So.3d 826.
On appeal, in determining whether summary judgment is appropriate,
appellate courts review evidence de novo under the same criteria that
governs the trial court’s determination of whether summary judgment
is appropriate. Id.

An insurer seeking to avoid coverage through summary
judgment bears the burden of proving that some provision or exclusion
applies to preclude coverage. Halphen v. Borja, 06-1465 (La.App. 1
Cir. 5/4/07), 961 So.2d 1201, writ denied, 07-1198 (La. 9/21/07), 964
So.2d 338. “The issue of whether an insurance policy, as a matter of
law, provides or precludes coverage is a dispute that can be resolved
properly within the framework of a motion for summary judgment.”
Green v. State Farm Mut. Auto. Ins. Co., 07-94, p. 3 (La.App. 1 Cir.
11/2/07), 978 So.2d 912, 914, writ denied, 08-074 (La. 3/7/08), 977
So.2d 917. “Summary judgment declaring a lack of coverage under an
insurance policy may not be rendered unless there is no reasonable
interpretation of the policy, when applied to the undisputed material
facts shown by the evidence supporting the motion, under which
coverage could be afforded.” Reynolds v. Select Prop., Ltd., 93-1480
(La. 4/11/94), 634 So.2d 1180, 1183.

25

With these precepts in mind, we turn to the issue presented in the cross motions for

summary judgment filed by Plaintiffs and Indian Harbor—whether UM coverage

was rejected under the policy issued by Indian Harbor to Wastewater.

Louisiana Revised Statutes 22:1295(1)(a)(i) mandates UM coverage equal to

the liability limits in all automobile liability policies, unless the insured “rejects

coverage, selects lower limits, or selects economic-only coverage, in the manner

provided in [La.R.S. 22:1295(1)(a)(ii)].” Louisiana Revised Statutes

22:1295(1)(a)(ii) provides, in relevant part:

Such rejection, selection of lower limits, or selection of
economic-only coverage shall be made only on a form prescribed by
the commissioner of insurance. The prescribed form shall be provided
by the insurer and signed by the named insured or his legal
representative. . . . A properly completed and signed form creates a
rebuttable presumption that the insured knowingly rejected coverage,
selected a lower limit, or selected economic-only coverage. The form
signed by the insured or his legal representative which initially rejects
coverage, selects lower limits, or selects economic-only coverage shall
remain valid for the life of the policy and shall not require the
completion of a new selection form when a renewal, reinstatement,
substitute, or amended policy is issued to the same named insured by
the same insurer or any of its affiliated. An insured may change the
original uninsured motorist selection or rejection on a policy at any time
during the life of the policy by submitting a new uninsured motorist
selection form to the insurer on the form prescribed by the
commissioner of insurance.

Louisiana’s public policy strongly favors UM coverage and a liberal

construction of the UM statute. Duncan v. U.S.A.A., 06-363 (La. 11/29/06), 950

So.2d 544. “The liberal construction given the UM statute requires the statutory

exceptions to coverage be interpreted strictly.” Id. at 547.

Recently, our supreme court laid out the law regarding the proper completion

of the UM form in Berkely Assurance Co. v. Willis, 21-1554, pp. 5–6 (La. 12/9/22),

355 So.3d 591, 595–96 (footnote omitted), as follows:

The current UM form, prescribed under [the Louisiana
Department of Insurance (“LDOI”)] Bulletin [No.] 08-02, mandates the
insurer’s name, group name, or logo is necessary for a valid waiver of

26

coverage. In relevant part, the form states: “If you wish to reject UMBI
Coverage, select lower limits of UMBI Coverage, or select Economic-
Only UMBI Coverage, you must complete the form and return it to your
insurance agent or insurance company.” Completion requires filling
out the UM form in its entirety except where otherwise indicated on the
face of the form. See La. C.C. art. 2047 (“words of a contract must be
given their generally prevailing meaning”). Unlike the prior iteration
of the UM form at issue in Gingles [v. Dardenne, 08-2995 (La.
3/13/09)], a designated box in the current version of the form expressly
provides for the entry of the insurer’s name. See Gingles, 08-2995, p.
1, 4 So.3d at 799. Thus, Bulletin 08-02 made specific changes to the
UM form by mandating the inclusion of the two boxes on the lower
right corner of the form. As correctly noted by the court of appeal,
while the descriptive “Optional” appears in the box provided for
“Information for Policy Identification Purposes Only,” no such
language appears in the box provided for the insurer’s name. [Berkley
Assurance Co. v. Willis, 20-354, 20-355, pp. 14–15 (La.App. 4 Cir.
9/29/21), 328 So.3d 567, 576]. What is not optional is
mandatory. Berkley had the authority, opportunity, and responsibility
to assure the UM form was properly completed. Gray v. American Nat.
Property & Cas. Co., 07-1670, pp. 14-15 (La. 2/26/08), 977 So.2d 839,
849-50; see also Stone v. Allstate Property and Casualty Ins. Co., 18-
0547 (La.App. 3 Cir. 3/7/19), 269 So.3d 961 (UM form valid where
insured initially rejected coverage with a check mark but supplemented
with initials upon request of insurer). It was not. A requirement
mandated on the face of the UM form itself can never be hyper-
technical nor its absence considered a minor deviation.

In accordance with the strict construction requirement applicable to coverage

exclusions, Indian Harbor “bears the burden of proving any insured named in the

policy rejected in writing the coverage equal to bodily injury coverage or selected

lower limits.” Duncan, 950 So.2d at 547. Under the UM coverage statute,

“rejection, selection of lower limits, or selection of economic-only coverage shall be

made only on a form prescribed by the commissioner of insurance.” La.R.S.

22:1295(1)(a)(ii).

In support of its motion, Indian Harbor attached the affidavit of underwriter,

Andrew Mack (“Mr. Mack”); the affidavit of Todd Sims (“Mr. Sims”), Wastewater’s

legal representative; the UM rejection form at issue herein; and a certified copy of

its policy effective for the period of June 30, 2018 to June 30, 2019. Indian Harbor

argues it complied with the necessary steps and has carried its burden of showing

27

UM coverage was rejected by Mr. Sims, who initialed the form, which was dated

prior to the issuance of the policy at issue, to select Wastewater’s decision to reject

UM coverage. Mr. Sims also signed and printed his name at the bottom of the form.

Thus, Indian Harbor contends the tasks prescribed for properly completing a UM

rejection recognized in Duncan were met in the present case.17

Plaintiffs argue Indian Harbor failed to carry its burden of proving that

Wastewater signed a rejection from that complied with the dictates of La.R.S.

22:1295 as set forth by the LDOI Bulletin No. 08-02. Specifically referring to the

box located on the lower right-hand corner of the form at issue, Plaintiffs allege

Indian Harbor did not establish that the insurer’s name, the group name, or the

insured’s logo was contained within the UM rejection form. The UM form signed

by Mr. Sims contained the logo of XL Catlin. Thus, Plaintiffs argue the UM form

was not properly completed because neither Indian Harbor’s name nor logo was

present. Further, Plaintiffs contend Indian Harbor did not carry its burden of

establishing that XL Catlin was even the insurance group at the time the policy was

issued.

Addressing Plaintiffs’ arguments, Indian Harbor contends there can be no

reasonable question that the UM waiver form is intended to apply to its policy.

Pointing to the box located on the lower right-hand corner of the UM form at issue,

Indian Harbor argues, in brief (footnotes omitted):

It cannot be disputed that the UM waiver form submitted by [Indian
Harbor] includes the name and logo of XL Catlin, which, was
17
Those six tasks are described in Duncan, 950 So.2d at 551, as follows:

(1) initialing the selection or rejection of coverage chosen; (2) if limits lower than
the policy limits are chosen (available in options 2 and 4), then filling in the amount
of coverage selected for each person and each accident; (3) printing the name of the
named insured or legal representative; (4) signing the name of the named insured
or legal representative; (5) filling in the policy number; and (6) filling in the date.

LDOI Bulletin 08-02 issued post-Duncan removed the need for filling in the policy number on the
rejection form. See Meziere, 362 So.3d 355.

28

established by unrefuted affidavit testimony,[18] is the insurance group
under which [Indian Harbor] operates. The UM waiver form indicates
that XL Catlin is the “insurance group” that would issue the Policy and,
indeed, the very same name and logo appears on the cover page of the
Policy that [Indian Harbor] ultimately issued. As reflected on the
Policy’s Declarations page, XL Catlin is the “insurance group,” and
[Indian Harbor] is the “Insurance Company Providing Coverage.”

Thus, Indian Harbor argues the UM rejection form which includes the insurance

group’s logo is sufficient. We disagree.

As expressed in Berkley, 355 So.3d 596 (emphasis added):

The tasks mandated by the current UM form, prescribed under
Bulletin 08-02, are as follows: 1) initialing the selection or rejection of
coverage chosen; 2) if limits lower than the policy limits are chosen,
then filling in the amount of coverage selected for each person and each
accident; 3) printing the name of the named insured or legal
representative; 4) signing the name of the named insured or legal
representative; 5) filling in the insurer’s name, the group name, or
the insurer’s logo; and 6) filling in the date. Failure to properly
complete the UM form results in an invalid rejection or selection of
lower limits of UM coverage. Duncan, 06-0363, pp. 14-15, 950 So.2d
at 553. Consequently, by operation of statute, UM coverage is equal to
the liability limits of the policy. Id., 06-0363, p. 16, 950 So.2d at
554; La. R.S. 22:1295(1)(a)(i).

The UM rejection form herein contains a line on which appears the logo of XL

Catlin, identified as “Insurance Group.” Despite Indian Harbor’s arguments to the

contrary, we do not consider the insurance group’s logo as complying with the

dictates of the LDOI’s Bulletin No. 08-02.

In Faulkner v. Tyler, 22-532 (La.App. 3 Cir. 2/1/23), 362 So.3d 921, writ

denied, 23-510 (La. 5/31/23), 361 So.3d 449, the only task at issue concerned the

box pertaining to the identity of the insurer. The business auto policies at issue in

18
The affidavit of Mr. Mack attested, in relevant part:

I am a senior underwriter employed by XL Global Services and underwrite
policies through XL Global Services’ affiliate, [Indian Harbor]. XL Global
Services and [Indian Harbor] operated under the umbrella of XL Catlin, now known
as AXA XL. I have held that position since 2015, was an underwriter for [Indian
Harbor] on this account at all times relevant herein[] and am personally aware of
the facts . . . .

29

Faulkner were issued by Illinois National Insurance Company; however, the “two

UM rejection forms contain[ed] the pre-printed name ‘Chartis Insurance.’” Id. at

927. This court affirmed the judgment denying the insurer’s motion for summary

judgment, observing that the name of the insurance group was not correct on the

waiver form despite the insurer offering the affidavit of an underwriter in support of

its motion. This court rejected the underwriter’s attestation that the insurer operated

under the former name of the insurer’s affiliated company, i.e., AIG, and that Illinois

National Insurance Company was, in fact, an affiliated member company. This court

found, “[the underwriter] has presented no evidence indicating the actual

relationship of Chartis to AIG or even when and under what circumstances Chartis

ceased to be known by that name and began using AIG Property, if indeed it did so.”

Id.

In this case, the affidavit of Mr. Mack, similarly, does not establish that XL

Catlin was the group under which Indian Harbor was operating when the policy

herein was issued. Accordingly, we find on de novo review that the UM form in

connection with the policy at issue did not provide the insurer’s name or logo in the

designated box and, thus, failed to comply with LDOI Bulletin No. 08-02.

Wastewater’s rejection of UM coverage was invalid.

DECREE

For the foregoing reasons, the trial court judgment entered in conformity with

the jury’s verdict on November 3, 2022, is affirmed in all respects. The trial court

judgment dated March 10, 2023, granting, in part, Defendant’s Motion for New Trial

and/or Remittitur as to Mrs. Smith’s loss of consortium claim, is reversed. Thus, the

jury’s verdict, awarding $475,000.00 to Mrs. Smith for loss of consortium, is hereby

reinstated. All costs of this appeal are assessed to Defendants/Appellants.

AFFIRMED, IN PART; REVERSED, IN PART.

30