Opinion
NUMBER 2013 CA 0360 C/W 2013 CA 0361
12-04-2013
DANIELLE M. SCOTT v. ENTERGY CORPORATION, ENTERGY LOUISIANA, LLC, ENTERGY GULF STATES LOUISIANA, L.L.C., ALTEC CAPITAL SERVICES, LLC, PERRY L. SMITH, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY AND CASEY P. TOURERE CASEY P. TOURERE v. PERRY L. SMITH AND ALTEC CAPITAL SERVICES L.L.C.
Robert M. Marionneaux, Jr. Barret D. Burkart, Jr. Baton Rouge, LA Lewis O. Unglesby Baton Rouge, LA Counsel for Plaintiff/Appellee Casey P. Tourere Joseph R. Ballard Baton Rouge, LA Stephen Jewell New Roads, LA Gary M. Carter, Jr. New Orleans, LA Thomas M. Flanagan New Orleans, LA Counsel for Defendants/Appellants Perry L. Smith and Entergy Gulf States Louisiana, LLC L. Dean Fryday, Jr. Baton Rouge,LA Counsel for Defendant State Farm Fire and Casualty Company David M. Moragas Richard E. King New Orleans, LA Counsel for Defendant The Hartford Insurance Company Darrel J. Papillion Edward J. Walters, Jr. Baton Rouge, LA Counsel for Plaintiff Danielle Scott Joseph R. Ballard Baton Rouge, LA Counsel for Defendant Altec Capital Services, LLC
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Eighteenth Judicial District Court
In and for the Parish of Pointe Coupee, Louisiana
Docket Numbers 43,362 and 43,379
Honorable AIvin Batiste, Jr., Judge Presiding
Robert M. Marionneaux, Jr.
Barret D. Burkart, Jr.
Baton Rouge, LA
Lewis O. Unglesby
Baton Rouge, LA
Counsel for Plaintiff/Appellee
Casey P. Tourere
Joseph R. Ballard
Baton Rouge, LA
Stephen Jewell
New Roads, LA
Gary M. Carter, Jr.
New Orleans, LA
Thomas M. Flanagan
New Orleans, LA
Counsel for Defendants/Appellants
Perry L. Smith and Entergy Gulf States
Louisiana, LLC
L. Dean Fryday, Jr.
Baton Rouge,LA
Counsel for Defendant
State Farm Fire and Casualty Company
David M. Moragas
Richard E. King
New Orleans, LA
Counsel for Defendant
The Hartford Insurance Company
Darrel J. Papillion
Edward J. Walters, Jr.
Baton Rouge, LA
Counsel for Plaintiff
Danielle Scott
Joseph R. Ballard
Baton Rouge, LA
Counsel for Defendant
Altec Capital Services, LLC
BEFORE: WHIPPLE, C.J., WELCH, AND CRAIN, JJ.
WHIPPLE, C.J.
In this motor-vehicle collision case, defendants appeal the trial court's judgment, rendered in conformity with a jury verdict, finding the defendant-driver fifty-seven (57%) percent at fault for the accident and awarding plaintiff damages. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On the morning of August 28, 2009, plaintiff Casey Tourere was involved in an automobile accident while traveling south on La. Highway 1 near its intersection with La. Highway 78 in Pointe Coupee Parish. Tourere's vehicle struck a utility truck, driven by Entergy employee Perry Smith, as Smith attempted to make a left-hand turn into the parking lot of the Cracker Barrel convenience store from the northbound lane of La. Highway 1. After striking the utility truck, Tourere's vehicle collided head-on with the automobile traveling behind the utility truck, which was being operated by Danielle Scott.
Tourere was airlifted from the scene of the accident to a hospital in Baton Rouge, where he underwent surgery seventy-two (72) hours later for a severe break in his hip and pelvis. He remained in the hospital for another week and was then restricted to a wheelchair for approximately ninety (90) days. Since the accident, Tourere has not been able to return to work as a certified pipefitter, and his wife has become the primary income earner while he stays at home with their young daughter. He still complains of pain from his injuries sustained in the accident and remains on pain medication, as prescribed by a pain management specialist.
On August 26, 2010, Tourere filed suit for damages resulting from the accident, naming as defendants, Smith, Entergy Gulf States Louisiana L.L.C. .("Entergy"), and Alltec, Capital Services L.L.C, as owner of the utility truck.,
Entergy was named as an additional defendant in an amended petition, filed on September 20, 2010.
Danielle Scott also filed a petition for damages for her injuries suffered as a result of the accident. Tourere's and Scott's respective suits were consolidated by order of the trial court. However, prior to the trial of the matter, Scott's suit was resolved by agreement of the parties.
A three-day jury trial on liability and damages was held on April 30, 2012 through May 2, 2012. The jury returned a verdict finding defendant-driver Smith fifty-seven (57%) percent at fault for the automobile accident and plaintiff Tourere forty-three (43%) percent at fault. The jury further awarded Tourere $149,183.33 for past medical expenses; $267,161.00 for future medical expenses; $161,996.00 for past lost wages; $1,531,168.00 for future lost wages and earning capacity; $350,000.00 for past physical pain and suffering; $350,000.00 for future physical pain and suffering; $500,000.00 for past mental pain and suffering; $750,000.00 for future mental pain and suffering; and $100,000.00 for permanent scarring and disfigurement. A written judgment reflecting the jury award was signed on May 16, 2012.
From this judgment, defendants Smith and Entergy appeal, asserting the following assignments of error: (1) The trial court committed legal error in denying defendants' motion for a mandatory continuance under LSA-C.C.P. art. 1602. (2) The past and future wage loss awards contradict the evidence and exceed even the maximum amounts proposed by plaintiff. (3) The general damages award is grossly excessive and constitutes an abuse of discretion.
DISCUSSION
A. Denial of Motion for Continuance
(Assignment of Error No. 1)
In their first assignment of error, defendants contend that the trial court committed legal error in denying their motion for continuance. Specifically, defendants argue that a mandatory continuance should have been granted because of Jonathon Lee's failure to appear at trial, despite being subpoenaed by defendants. Jonathon Lee was purportedly a witness to the accident and provided a signed statement to the responding law enforcement officer. The defendants contend his statement was favorable to their argument that plaintiff caused the accident by running a red light.
The trial court also ruled that defendants could not introduce Lee's signed statement in the police report as evidence to the jury. However, defendants did proffer the police report with the statement.
Louisiana Code of Civil Procedure article 1602 addresses peremptory grounds for a continuance, stating as follows:
A continuance shall be granted if at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance.
Article 1602 establishes two peremptory grounds for a continuance: first, when a party is unable, with the exercise of due diligence, to obtain material evidence and; second, when a material witness absented himself without the contrivance of the party seeking the continuance. Jackson v. Home Depot, Inc., 04-1653 (La. App. 1st Cir. 6/10/05), 906 So. 2d 721, 725-26. If either ground is established, a continuance is mandatory. Burgess v. City of Baton Rouge, 477 So. 2d 143, 145 (La. App. lst Cir. 1985).
Important to the facts of this case is Article 1602's requirement that the party requesting the continuance as to either peremptory ground make that showing "at the time a case is to be tried." LSA-C.C.P. art. 1602 (emphasis added). Defendants subpoenaed Lee to appear on what turned out to be the second day of trial. Defendants did not move for a continuance after Lee failed to appear on days one and two of the trial. Rather, defendants waited until the third day of trial, after plaintiff rested his case and the trial judge ruled that defendants could not introduce Lee's signed statement into evidence, to move for a continuance. At that time, a continuance was not a practical solution because the jury had been seated and the plaintiffs had completed their case. Defendants' request for a continuance at that point in time was the equivalent of a request for a mistrial with release of the jurors, which is clearly not required by Article 1602. By.failing to subpoena Lee for the beginning of trial, defendants could not establish that the witness absented himself "at the time [the] case [was] to be tried,'' as required by Article 1602. Therefore, under these facts, we are unable to find error by the trial court.
Furthermore, while LSA-CC.P. art. 1601 provides that "[a] continuance may be granted in any case if there is good ground therefor," the trial court has great discretion in this area, and its decision will not be disturbed except in a case of clear abuse. Sather v. White, 388 So.2d 402, 404 (La. App. lst Cir. 1980). We find no abuse of the trial court's discretion in its decision to deny defendants' continuance, where it was requested after three days of trial and after plaintiff rested his case.
For the foregoing reasons, we find no merit to the first assignment of error. B. Future and Past Lost Wages
(Assignment of Error No. 2)
In their second assignment of error, defendants contend that the trial court erred in awarding plaintiff $1,53 Li 68.00 for future lost wages and $161,996.00 for past lost wages. Defendants argue that there is no factual basis for such awards, and alternatively, that the awards constitute an abuse of discretion. Defendants do not dispute that plaintiff is physically unable to return to his previous "heavy work" as a certified pipefitter; rather, defendants argue that the lost wages should be discounted on account of plaintiff's ability to return to "medium or light work."
At the time of the accident, plaintiff was thirty-one (31) years old and was working as a certified pipefitter for Georgia Gulf, earning approximately $61,550.00 annually. In addition to being a certified pipefitter, plaintiff was also certified as a national scaffold builder and boiler maker,
At trial, plaintiff presented testimony from Robert Gisclair, a licensed rehabilitation counselor, and Dr. Randy Rice, an economist. Defendants did not offer any expert testimony in regard to lost wages, relying on their cross-examination of Gisclair and Dr, Rice.
Gisclair testified that before the accident, plaintiff was .performing "heavy work" and was capable of performing ninety-one (91%) percent of all jobs. However, plaintiff's functional capacity exam, taken after the. accident, reflected that plaintiff is now limited to medium to light, work. Gisclair testified that plaintiff now only qualifies for three (3) to four (4%) percent of all jobs. He further noted that the jobs that plaintiff does qualify for are considered low skill, such as a cashier or telephone operator, with pay ranging from minimum wage ($7.25 per hour) to $8.39 per hour, depending on location;
Dr. Rice testified that he calculated Tourere's past, lost, wages as $161,996.00, and his future lost earning capacity as $1,531,168.00. Dr. Rice further explained that plaintiff could earn approximately..$16,000.00. to $20,000.00 annually at a low skill; light to medium job. Accordingly, Dr. Rice testified that plaintiff's future lost earning capacity could be subject to a credit of $404,626.00 to $502,937.00 for pay he could earn over his lifetime at a. "medium to light work job." Dr. Rice concluded his testimony by acknowledging that child care costs for plaintiff, if he returned to work, would be approximately $21,000,00 annually, and this amount could exceed the amount plaintiff would earn if he returned to work.
Dr. Rice calculated plaintiff's work life as 25.69 years.
The past lost wages award of $161,996.00 is. consistent with the figure calculated by Dr. Rice. Moreover, Dr. Rice's testimony was the only evidence presented at trial as to plaintiff's past lost wages. Accordingly, we find that plaintiff met his burden of proving past lost wages, and the $161,996.00 award for past lost wages is supported by the evidentiary proof presented at trial. Lasyone v. Kansas City Southern Railroad, 99-0735 (La. App. 1st Cir. 9/28/01), 809 So.2d 344, 351, writ denied, 02-0093 (La. 3/15/02), 811 So.2d 891.
Considering the award of $1,531,168.00 for future loss of earnings, we note that a trier of fact is afforded much discretion in setting an award for future loss of earnings. Awards for future loss of earnings are inherently speculative and are intrinsically insusceptible of being calculated with mathematical certainty. Therefore, the trier of fact is given much discretion in fixing these awards. When reviewing a trial court's award for loss of earning capacity, an appellate court should give deference to the trier of fact. An award of loss of future income is not based upon the difference between a plaintiffs earnings before and after a disabling injury. Rather, the award is predicated upon the difference between a plaintiff's earning capacity before and after a disabling injury. Lasyone, 809 So.2d at 350-351.
In awarding plaintiff $1,531,168.00 for future loss of earnings, the jury relied on the maximum figure proposed by Dr. Rice. While Dr. Rice testified that this maximum amount could be discounted on account of pay plaintiff could earn over his lifetime at a "medium to light work job," the jury, as the trier of fact, was free to accept in whole or in part the lesser figures suggested by Dr. Rice. The effect and weight to be given expert testimony is within the broad discretion of the trial judge. Babin v. Roustabouts, 05-2659. 2006 WL 3308626 (La. App. 1st Cir. 11/15/06) (unpublished). Accordingly, we find that the trier of fact did not abuse its broad discretion in awarding plaintiff $1,531,168.00 for future loss of earnings, as this amount is reasonably supported by Dr. Rice's testimony and the record as a whole.
Finding no error in the' awards for past and future lost wages as awarded by the trier of fact, we find no merit to defendants' second assignment of error. C. General Damage Award
(Assignment of Error No. 3)
In their last assignment of error, defendants contend that the jury's $2,050,000.00 general damage award is excessive and should be decreased to $600,000.00.
The trier of fact is given much discretion in the assessment of damages. LC.C. art. 2324.1. On appellate review, damage awards will be disturbed only when there has been a clear abuse of that discretion. Theriot v. Allstate Insurance Company, 625 So.2d 1337, 1340 (La. 1993). The initial inquiry must always be directed at whether the trial court's award for the particular injuries and their effects upon the particular injured person is a clear abuse of the trier of fact's much discretion. Scarbrough v. O.K. Guard Dogs, 2003-1243, 2003-1244 (La. App. 1st Cir. 5/14/04), 879 So.2d 239, 246-247, writ denied, 2004-1440 (La. 9/24/04), 882 So.2d 1127; Reck v. Stevens, 373 So.2d 498, 501 (La. 1979).
In Youn v. Maritime Overseas Corporation, 623 So.2d 1257, 1260 (La. 1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed 2d 379 (1994) (citing Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1976)), the Louisiana Supreme Court instructed that, "Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then only for the purpose of determining the highest or lowest point which is reasonably within that discretion."
Plaintiff herein was air-lifted from the scene of the accident to Our Lady of the Lake hospital in Baton Rouge. He was diagnosed with a comminuted left acetabulum fracture, which the treating orthopedic surgeon described as being a severe break, wherein the bone was "shattered." Because of his presenting condition and injuries, plaintiff had to wait seventy-two (72) hours for surgery. Plaintiff testified that during this time, he was in "excruciating pain," and his wife described laying the weight of her body on his hip anytime he would cough or sneeze to help alleviate his pain. The surgery, as testified to by the treating orthopedic trauma surgeon, entailed putting plaintiff's bones back together "like a puzzle" with orthopedic hardware, including eleven (11) screws and three (3) plates.
After plaintiff was released from the hospital, he was restricted to a wheelchair for several weeks. During this time, his wife had to "do everything for him," including giving him shots in the stomach to prevent blood clots and changing his urine bottle.
Specifically, in discussing this time period, plaintiff's wife testified, as follows:
Q. And tell the jury from the first day he got home how was Casey, and how did things go at the house?
A. Okay. We pretty much just established a routine. I had to get up every morning and give him shots in the stomach so that his blood didn't clot I had to work him out so that he could retain mobility. He was in a wheelchair for months. He didn't even get to stand up until, I think, early the next year. It was rough. I had to do everything for him, everything from a -he had had to pee in a bottle. I had to clean it up. I had to help him go to the bathroom. I had to help him do everything, things that you expect to do when your husband is older, much older, not when he's 32.
At the time of trial, plaintiff was still, taking heightened strengths of Morphine and Percocet, as prescribed by Dr. Patel, a pain management specialist. Dr. Patel opined that plaintiff was suffering with chronic pain, and further stated that plaintiff will have to take pain medicine for the "foreseeable future." Dr. Patel also testified that plaintiff was a very compliant patient, who appeared to be doing everything he could to be pain free.
Moreover, plaintiff, his wife, and his father all described plaintiff's anger and continued depression since the accident. According to Dr. Patel, plaintiff needs to see a psychologist for "coping skills" for his chronic pain.
Considering the nature, severity and duration of plaintiff's injuries, the trial court did not abuse its vast discretion in making its general damage award. Defendant's third assignment of error likewise lacks merit.
Accordingly, we need not look to prior awards as suggested by defendants. See Youn, 623 So.2d at 1260; see and compare Asbahi v. Beverly Industries, L.L.C., 2011-1202, 2012 WL 1922300 (La. App. 1st Cir. 5/23/12) (unpublished), writ denied, 2012-1309 (La. 9/28/12), 98 So.3d 842, and Brignac v. Williamson, 2010-1117, 2011 WL 579196 (La. App. 1st Cir. 2/11/11) (unpublished).
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CONCLUSION
For the above and foregoing reasons, the May 16, 2012 judgment of the trial court is hereby affirmed. All costs of this appeal are assessed against the defendants/appellants, Perry L. Smith and Entergy.
AFFIRMED.