Opinion
2014 CA 1627
11-06-2015
VALERIE BABIN v. FLOYD RUSSO, SR., AMERICAN TOWING ENTERPRISES, INC., AND NATIONAL FIRE & MARINE INSURANCE COMPANY
Randal L. Gaines LaPlace, Louisiana Attorney for Appellant/Appellee, Valerie Babin Craig J. Fontenot Baton Rouge, Louisiana Attorney for Appellees/Appellants, Floyd Russo, Sr., American Towing Enterprises, Inc., and Shelter Mutual Insurance Company
NOT DESIGNATED FOR PUBLICATION On Appeal from the 23rd Judicial District Court In and for the Parish of Ascension State of Louisiana
Trial Court No. 98,225
The Honorable Ralph Tureau, Judge Presiding Randal L. Gaines
LaPlace, Louisiana
Attorney for Appellant/Appellee,
Valerie Babin
Craig J. Fontenot
Baton Rouge, Louisiana
Attorney for Appellees/Appellants,
Floyd Russo, Sr., American Towing
Enterprises, Inc., and Shelter Mutual
Insurance Company
BEFORE: WHIPPLE, C.J., WELCH, AND DRAKE, JJ. DRAKE, J.
In this personal injury case, both the plaintiff, Valerie Babin, and the defendants, Floyd Russo, Sr., American Towing Enterprises, Inc. (American Enterprises), and National Fire & Marine Insurance Company (National Fire) (collectively referred to as "defendants"), appeal the judgment of the trial court, which awarded damages to the plaintiff following a bench trial. For the following reasons, we affirm the judgment of the trial court.
FACTS AND PROCEDURAL HISTORY
On September 13, 2010, plaintiff's vehicle became disabled in Gonzales, Louisiana, and an American Enterprises tow truck, operated by Mr. Russo, arrived on the scene to tow her vehicle. After partially loading the vehicle onto the flatbed of the tow truck, Mr. Russo stopped the loading process. Plaintiff then attempted to turn the emergency flashers off on her vehicle, and Mr. Russo lowered the tow truck bed onto her foot, severely injuring the left big toe. Approximately an hour after the injury, plaintiff underwent surgery in an attempt to save her toe. However, she eventually underwent a second surgery in which her big toe was removed along with part of her foot where the skin had died.
After a bench trial on the issue of liability only, the trial court signed a judgment assigning 60% fault to the defendants and 40% to the plaintiff. On June 6, 2014, the trial court held a separate trial on the issue of damages. Following the trial, the trial court signed a judgment on June 20, 2014, finding that the plaintiff was entitled to $673,380.35 in total damages, which was reduced by her 40% fault. Thereby, defendants were ordered to pay plaintiff $404,028.21 in total damages.
Defendants appealed both the judgments on liability and damages. Plaintiff also filed an appeal from both judgments. Neither plaintiff nor the defendants assign as error or brief to this court the allocation of fault made by the trial court. Matters not briefed are considered abandoned. See Uniform Rules, Courts of Appeal, Rule 2-12.4; Keesler Federal Credit Union v. Rivero, 2014-0095 (La. App. 1 Cir. 9/19/14), 153 So. 3d 1218, 1223 n.4. Plaintiff appeals and assigns as error that the general damages and future medical expenses awarded by the trial court were insufficient. The defendants appeal and assign as error that the total damages awarded were excessive for plaintiff's injury. Therefore, the only issue before this court is whether the damages awarded by the trial court were either insufficient or excessive.
STANDARD OF REVIEW
A court of appeal may not overturn a judgment of a trial court unless there is an error of law or a factual finding that is manifestly erroneous or clearly wrong. Morris v. Safeway Ins. Co. of Louisiana, 2003-1361 (La. App. 1 Cir. 9/17/04), 897 So. 2d 616, 617, writ denied, 2004-2572 (La. 12/17/04), 888 So. 2d 872. The Louisiana Supreme Court has posited a two-part test for the appellate review of facts in order to affirm the factual findings of the trier of fact: (1) the appellate court must find from the record that there is a reasonable factual basis for the finding of the trier of fact; and (2) the appellate court must further determine that the record establishes that the finding is not clearly wrong (manifestly erroneous). See Mart v. Hill, 505 So. 2d 1120, 1127 (La. 1987). Thus, if there is no reasonable factual basis in the record for the trier of fact's finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a factual finding only if, after reviewing the record in its entirety, it determines the factual finding was clearly wrong. See Stobart v. State, Dept. of Transp. and Dev., 617 So. 2d 880, 882 (La. 1993); Moss v. State, 2007-1686 (La. App. 1 Cir. 8/8/08), 993 So. 2d 687, 693, writ denied, 2008-2166 (La. 11/14/08), 996 So. 2d 1092. If the trial court's factual findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse those findings, even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Smegal v. Gettys, 2010-0648 (La. App. 1 Cir. 10/29/10), 48 So. 3d 431, 435; LeBlanc v. Appurao, 2013-0491 (La. App. 1 Cir. 2/13/14), 138 So. 3d 1, 4-5, writ denied, 2014-0498 (La. 4/17/14), 138 So. 3d 632. Where there are two permissible views of the evidence, the fact-finder's choice between them cannot be manifestly erroneous. Adams v. Rhodia, Inc., 2007-2110 (La. 5/21/08), 983 So. 2d 798, 806.
DISCUSSION
General damages are those which may not be fixed with any degree of pecuniary exactitude, but which instead involve mental or physical pain or suffering, inconvenience, the loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle, which cannot really be measured definitively in terms of money. McGee v. A C And S, Inc., 2005-1036 (La. 7/10/06), 933 So. 2d 770, 774. General damages are inherently speculative in nature and cannot be fixed with mathematical certainty. Miller v. LAMMICO, 2007-1352 (La. 1/16/08), 973 So. 2d 693, 711. Much discretion is left to the judge or jury in the assessment of general damages. See La. C.C. art. 2324.1. The trier of fact is afforded much discretion in independently assessing the facts and rendering an award because it is in the best position to evaluate witness credibility and see the evidence firsthand. Miller, 973 So. 2d at 711. In assessing general damages in a personal injury case, a court must consider the severity and duration of the injured party's pain and suffering. LeBlanc v. Stevenson, 2000-0157 (La. 10/17/00), 770 So. 2d 766, 772. The primary objective of general damages is to restore the injured party in as near a fashion as possible to the state he or she was in at the time immediately preceding injury. Factors to be considered in assessing quantum for pain and suffering are the severity and duration thereof. Turner v. Ostrowe, 2001-1935 (La. App. 1 Cir. 9/27/02), 828 So. 2d 1212, 1224, writ denied, 2002-2940 (La. 2/7/03), 836 So. 2d 107.
In reviewing an award of general damages, the court of appeal must determine whether the trier of fact has abused its much discretion in making the award. Youn v. Maritime Overseas Corp., 623 So. 2d 1257, 1260 (La. 1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). The role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Wainwright v. Fontenot, 2000-0492 (La. 10/17/00), 774 So. 2d 70, 74; Youn, 623 So. 2d at 1261. The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the "much discretion" of the trier of fact. Youn, 623 So. 2d at 1260. The discretion vested in the trier of fact is "great," and even vast, so that an appellate court should rarely disturb an award of general damages. Id. at 1261; Jones v. Thomas, 27,140 (La. App. 2 Cir. 8/23/95), 660 So. 2d 86, 91, writ denied, 1995-2351 (La. 12/8/95), 664 So. 2d 426. Reasonable persons frequently disagree about the measure of general damages in a particular case. Youn, 623 So. 2d at 1261. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or decrease the award. Id. Only after such an abuse of discretion is noted will a resort to prior awards be appropriate and then only for the purpose of determining the highest or lowest point which is reasonably within that discretion. Id. at 1260.
An appellate court may disturb a damages award only after an articulated analysis of the facts discloses an abuse of discretion. Miller, 973 So. 2d at 711. To determine whether there has been an abuse of discretion by the fact finder, the reviewing court looks first to the facts and circumstances of the particular case. Id. In a review of the facts, the test is whether the present award is greatly disproportionate to the mass of past awards for truly similar injuries. Id. It is important to note, however, that prior awards are only a guide. Id. In reviewing a general damage award, a court does not review a particular item in isolation; rather, the entire general damage award is reviewed for an abuse of discretion. Dennis v. The Finish Line, Inc., 1999-1413 (La. App. 1 Cir. 12/22/00), 781 So. 2d 12, 30, writ denied, 2001-0214 (La. 3/16/01), 787 So. 2d 319.
Special damages are those which have a "ready market value," such that the amount of the damages theoretically may be determined with relative certainty. McGee, 933 So. 2d at 774. A reviewing court should not set aside an award of special damages unless the award was based on factual findings that are found to be manifestly erroneous. See Kaiser v. Hardin, 2006-2092 (La. 4/11/07), 953 So. 2d 802, 810.
Plaintiff contends that the sum of $260,000.00 as full compensation for all her general damages: past, present and future mental and physical pain and anguish; physical disability; disfigurement and scarring; depression; and loss of enjoyment of life, was abusively low. The trial court divided the general damages as follows:
| Physical pain and suffering, past, present, and future: | $100,000.00 |
| Mental anguish and distress, past, present, and future: | $100,000.00 |
| Disfigurement and scarring: | $10,000.00 |
| Depression and loss of enjoyment of life: | $50,000.00 |
As stated above, this court can only increase or reduce the award of general damages if it is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances. Youn, 623 So. 2d at 1261.
The evidence at trial was that plaintiff has always worked at jobs which required physical activity—a cook, baker, cake decorator, sous chef, electrician's helper, cleanup worker following Hurricane Katrina, and a warehouse worker. When plaintiff arrived at the emergency room on September 13, 2010, the admitting diagnosis was "left great toe partial amputation." She testified at trial that she was in great pain before the surgery. The physicians performed surgery in an attempt to reattach her toe, but informed her they could not guarantee the outcome. Plaintiff testified that she suffered physical and mental pain during her hospital stay. According to Dr. Scott Petrie's office notes form October 4, 2010, upon examination it appeared that the "toe [was] not going to live" and "must be removed." He further stated that after explaining the risks and benefits to plaintiff, she agree to have the toe removed to facilitate her healing. On October 7, 2010, plaintiff underwent a second surgery where her left big toe was totally amputated as well as some as the skin around the foot. The evidence at trial included photographs of the toe both before and after the second surgery. After the second surgery, plaintiff walked with crutches and a walker for eight months and then used a cane. She suffered serious depression, low self-esteem, and had suicidal thoughts as a result of the injury. Plaintiff began suffering pain in her back and hip, which radiated into her leg due to her gait following the removal of her toe. Plaintiff treated with several physicians for her back pain, including: Dr. Fred R. DeFrancesch, specializing in physical medicine and rehabilitation; Dr. Bradley J. Bartholomew, a neurosurgeon; Dr. Firas Hijazi, a pain management physician; and Dr. Hieu T. Vuong, a podiatrist. She also underwent an MRI, showing lumbar spine changes, an epidural steroid injection, and physical therapy. Plaintiff testified to great difficulty walking and other limitations in other activities. She has been unable to return to any of her pre-accident jobs. She has qualified for social security disability from the date of her injury on September 13, 2010.
Dr. John Galloway, a social worker, was qualified as an expert in the area of vocational rehabilitation counseling and testified regarding plaintiff's mental state. He diagnosed her with anxiety, depression, and post-traumatic stress disorder, and determined that she was permanently disabled.
Plaintiff claims the trial court committed manifest error in the total general damage award, given her damages and future medical expenses. The trial court stated that it had reviewed cases from the First Circuit regarding loss of a big toe and portions to the foot, which plaintiff claims were older cases. In reviewing the facts, this court must determine if the present award is greatly disproportionate to the mass of past awards for truly similar injuries. See Miller, 973 So. 2d at 711.
The Second Circuit affirmed a general damage award of $155,000.00 to a ten-year old who suffered an extremely painful injury where the toes on his right foot were crushed, which required amputation of the front one-third of his right foot, as well as skin grafting and scarring, he sustained a "very deep tear" in his right calf, he was hospitalized for over three weeks, and he underwent seven surgical procedures. See Killough v. Bituminous Cas. Corp., 28,329 (La. App. 2 Cir. 5/8/96), 674 So. 2d 1091. In Bourg v. Cajun Cutters, Inc., 2014-0210 (La. App. 1 Cir. 5/7/15), ___ So. 3d ___, 2015WL2164269, the plaintiff was able to avoid amputation of all left foot toes with two surgeries after suffering a crush-type injury. This court affirmed an award of $250,000.00 in general damages. In another case from this circuit, a total damage award of $385,000.00 ($150,000.00 for physical pain and suffering, $150,000.00 for mental pain and suffering, and $85,000.00 for permanent scarring and disfigurement) was affirmed when the plaintiff underwent numerous surgical procedures, the removal of this second toe as a replacement thumb, and lost a big toe due to infection. Masariegos v. Morgan, 2008-0605 (La. App. 1 Cir. 2/13/09)(unpublished opinion).
Plaintiff relies upon Woods v. City of New Orleans, 2003-1776 (La. App. 4 Cir. 3/31/04), 871 So. 2d 1222, 1227-28, writ denied, 2004-1068 (La. 6/18/04), 876 So. 2d 814, wherein the Fourth Circuit affirmed a general damage award of $400,000.00 to the plaintiff for the amputation of right second toe, which caused gait problems. Plaintiff claims that the general damages awarded herein were abusively low, where the medical expenses award for both past and future medicals was $269,032.00, but the general damage award was only $260,000.00. Plaintiff relies upon Burtner v. Lafayette Parish Consol. Gov't, 2014-1180 (La. App. 3 Cir. 4/15/15)(unpublished opinion), writ denied, 2015-0938 (La. 6/19/15), 169 So. 3d 350, where relying on Ford v. Bituminous Ins. Co., 2012-1453 (La. App. 3 Cir. 6/19/13), 115 So. 3d 1253, wherein the court found that when the medical expenses were "wholly inconsistent" with the general damage award, the general damage award was an abuse of discretion. Burtner, at pp. 5-6; Ford, 115 So. 3d at 1258. Plaintiff herein claims that the minimum she should have been awarded for general damages was $400,000.00
In Guillory v. Lee, 2009-0075 (La. 6/26/09), 16 So. 3d 1104, 1126, the Louisiana Supreme Court reinstated a jury verdict of general damages of $10,000.00, even though the medical expenses award was $40,000.00. The appellate court had increased the general damage award to $150,000.00. The Court noted that it is not the role of the appellate court to substitute its view of the evidence for the trier of fact. Id. Similarly, we do not find the general damage award of $260,00.00, when the medical expense award was $269,032.00, to be an abuse of discretion. After reviewing the facts and evidence, under the standards discussed above, we cannot say that the trial court abused its discretion in fixing the award of general damages. Those damages are not beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the plaintiff. Future Medical Expenses
Plaintiff also claims that the award for future medical expenses was insufficient since the undisputed medical and economic evidence set the minimum amount necessary to provide for her future medical care at $557,028.00. Defendants have also appealed the award of future medical expenses claiming that they were unsupported with evidence from a treating physician.
The trial court awarded $223,777.00 for future medical expenses based on the reports of Dr. Stokes and Dr. Vuong. In order to recover future medical expenses, the appellate record must establish that future medical expenses will be necessary and inevitable. Bass v. State, 2014-0441 (La. App. 1 Cir. 11/7/14), 167 So. 3d 711, 716. An award of future medical expenses will not be supported in the absence of medical testimony establishing by a preponderance of the evidence that they are indicated and setting out their probable cost. Id. However, an award for future medical expenses is inherently speculative and not susceptible of being calculated with mathematical certainty. Id.; See Menard v. Lafayette Ins. Co., 2009-1869 (La. 3/16/10), 31 So. 3d 996, 1006. Thus, when the record establishes that future medical expenses will be necessary and inevitable, courts should not reject the award because the record does not provide the exact value, if the court can determine from the record, past medical expenses, and other evidence a minimum amount that reasonable minds could not disagree would be required. In such cases, the court should award all future medical expenses that the medical evidence establishes the plaintiff, more probable than not, will be required to incur. Bass, 167 So. 3d at 716. Such awards generally "turn on questions of credibility and inferences, i.e., whose experts and other witnesses does the jury believe?" Id. (citations omitted).
Defendants claim that there was no supporting back-up from a treating doctor that some of the medical treatment listed in Dr. Stokes' life care plan would be more than mere possibilities. Defendants also claim that the testimony of Dr. Galloway was limited to mental health issues, not vocational rehabilitation. Furthermore, defendants assert that there was not the required specificity with regard to the duration of epidural steroid injections or a spinal cord stimulator.
Lacey Sapp, a vocational rehabilitation counselor with Stokes & Associates, testified at trial on behalf of Dr. Stokes, who was out of the country on the date of trial. Dr. Stokes and Ms. Sapp conducted a life care plan and vocational assessment on plaintiff. Ms. Sapp testified that all pertinent medical information was reviewed, including numerous medical depositions, and an interview of plaintiff took place. A life care plan was created and sent to all the treating physicians of plaintiff, Dr. Bartholomew, Dr. Vuong, John S. Barrett, doctor of chiropractic, Dr. Hijazi, Dr. Defrancesch, and Dr. Galloway, requesting any changes or additional recommendations. Dr. Defrancesch clarified that the duration of pain management would continue for an indefinite period. Dr. Hijazi, Dr. Barrett, and Dr. Vuong responded that they had no changes from their previous recommendations. Dr. Galloway confirmed that he had reviewed the treatment needs of the plaintiff, and Dr. Bartholomew also responded. Therefore, all the treating physicians verified that their recommended long-term future care and equipment was required for life. Dr. Galloway clarified that plaintiff would need psychological counseling on a quarterly basis, which increased the annual costs. Dr. Bartholomew responded that a spinal cord stimulator trial and subsequent implant would be a better option than a morphine pump. Dr. Kenneth Boudreaux, an economist, determined that the life care plan had a lower end value of $557,028.51 and an upper end value of $1,347,588.15, depending on the actual procedures used in the future. Dr. Vuong estimated that the future medical care for just her lower extremities was $176,000.00, not including orthopedic consults, prosthetics, and possible surgeries for her back.
As is evident from its award of $223,777.00 for future medical expenses, the trial court made a factual finding that plaintiff would continue to suffer from her injuries related to the accident and would require some type of future medical treatment. Plaintiff presented evidence of her future medical treatment, including orthotics, physical therapy, ongoing treatment for pain for the rest of her life with medication, and a spinal stimulator or morphine pump. The trial court accepted the cost estimates provided by Drs. Vuong and Dr. Boudreaux, while not specifically itemizing the components of the $223,777.00 award. The trier of fact may accept or reject, in whole or in part, any expert's view. See Harris v. State ex rel. Dept. of Transp. and Development, 2007-1566 (La. App. 1 Cir. 11/10/08), 997 So. 2d 849, 866, writ denied, 2008-2886 (La. 2/6/09), 999 So. 2d 785. The defendants did not offer any differing testimony with regard to the future medicals. Given the evidence in the record, we cannot say that the trial court's award for future medical expenses was unreasonable and clearly wrong or that the amount awarded was an abuse of discretion. Accordingly, we find no merit in the defendant's assignment of error regarding the future medical expense award. The trier of fact is given much discretion in the assessment of damages. La. C.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 Ins. Co., 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 this particular injured person is a clear abuse of the trier of fact's much discretion. Emery v. Owens-Corporation, 2000-2144 (La. App. 1 Cir. 11/9/01), 813 So. 2d 441, 457, writ denied, 2002-0635 (La. 5/10/02), 815 So. 2d 842; Reck v. Stevens, 373 So. 2d 498, 501 (La. 1979). Although we recognize that the award of future medicals was on the low side, we find no abuse of discretion and will not substitute our judgment for that of the trier of fact. Past and Future Wage Loss
The trial court awarded plaintiff $61,643.41 in past lost wages and $81,735.21 in future lost wages. Defendants claim that plaintiff did not produce sufficient wage information to support an award of past or future wage loss. Defendants also claim that she did not follow the recommendations to become employed after her injury and that she provided no wage documentation. Ms. Sapp testified that she and Dr. Stokes relied on Dr. Boudreaux's initial report dated October 15, 2013, to derive the wages of plaintiff. Furthermore, Dr. Bartholomew believed the plaintiff could not return to what she was doing, so Dr. Stokes came up with employability based on her physical limitations.
Dr. Boudreaux used plaintiff's 2005, 2006, 2007, and 2009 tax returns to determine her pre-injury earnings. Plaintiff testified that prior to the injury, she was employed with Turner Industries doing labor work and fire hole watch. She had been employed with Turner Industries for three or four years at the Shell Norco facility. The week of this accident, plaintiff was not working for Turner Industries as the job had ended, but she expected to go back to work within two weeks. Plaintiff admitted on cross-examination that she worked sporadically with Turner Industries. She also testified that she had baked cakes at her house prior to the accident, but she produced no financial documents showing her income from baking. Plaintiff testified that over the past 20 years she has been gainfully employed with the largest gap in working being two months.
The defendants claim that the income from the cake baking was insufficiently documented. However, Dr. Boudreaux did not include the cake-baking income in his report. The report listed annual pre-tax income of $19,956.50 based on the income tax returns for the years listed above. He determined she had past lost wages of $61,643.41, the exact amount the trial court awarded. Based on a range calculated by Dr. Boudreaux, the trial court awarded $81,735.00 in future wage loss.
It is the plaintiff's burden to prove past lost wages, and that such an award is susceptible of mathematical calculation from the proof offered at trial. Travis v. Spitale's Bar, Inc., 2012-1366 (La. App. 1 Cir. 8/14/13), 122 So. 3d 1118, 1130, writ denied, 2013-2409 (La. 1/10/14), 130 So. 3d 327 and writ denied, 2013-2447 (La. 1/10/14), 130 So. 3d 329. In light of the evidence submitted regarding plaintiff's injuries and inability to work, we are unable to find that the trial court's decision to award past lost wages was in error or that the amount awarded was clearly erroneous.
It is well-established that awards for loss of future income are speculative by nature and cannot be calculated with mathematical certainty. Therefore, the trial court necessarily must have much discretion in fixing these awards. Dennis, 781 So. 2d at 40; Jenkins v. Sonat Offshore U.S.A. Inc., 96-2504 (La. App. 1 Cir. 12/29/97), 705 So. 2d 1184, 1191. Given plaintiff's age of fifty-three at the time of the injury, her past earnings, and the uncontradicted testimony regarding her physical limitations, we are unable to find that the trial court abused its discretion in awarding plaintiff $81,735.00 for loss of future wages. Thus, we reject the defendants' contentions on appeal that the award should be set aside as excessive and unwarranted.
CONCLUSION
For the foregoing reasons, the June 20, 2014 judgment of the trial court is affirmed. Costs of the appeal are assessed equally to plaintiff, Valerie Babin, and defendants, Floyd Russo, Sr., American Towing Enterprises, Inc., and National Fire & Marine Insurance Company.
AFFIRMED.