Armstrong v. Fireman's Fund Ins. Co.

558 So. 2d 646, 1990 WL 15772
CourtLouisiana Court of Appeal
DecidedFebruary 21, 1990
DocketCA 88 2015
StatusPublished
Cited by16 cases

This text of 558 So. 2d 646 (Armstrong v. Fireman's Fund Ins. Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Armstrong v. Fireman's Fund Ins. Co., 558 So. 2d 646, 1990 WL 15772 (La. Ct. App. 1990).

Opinion

558 So.2d 646 (1990)

Charles F. ARMSTRONG and Corrie E. Armstrong
v.
FIREMAN'S FUND INSURANCE COMPANY, et al.

No. CA 88 2015.

Court of Appeal of Louisiana, First Circuit.

February 21, 1990.
Writ Denied April 27, 1990.

*647 S. Alfred Adams, Baton Rouge, for plaintiff-appellant Charles F. Armstrong, et ux.

Eugene Groves, Baton Rouge, for defendant-appellee Fireman's Fund Ins., J & R Canteen, Inc., and Eugene Ringswald.

Before CARTER, SAVOIE and ALFORD, JJ.

ALFORD, Judge.

The plaintiffs, Charles F. Armstrong and Corrie E. Armstrong, appeal the judgment rendered in accordance with the jury's verdict awarding Mrs. Armstrong $2,000.00 for past and future pain and suffering, $325.00 for maid service, $7,500.00 for impairment of earning capacity and denying her claims for past and future mental anguish and distress, future medical expenses, past loss of income, and future loss of income and denying Armstrong's claim for loss of consortium. The defendants, Fireman's Fund Insurance Company, J & R Canteen, Inc. (J & R), and Eugene Ringswald[1] answered the appeal.

FACTUAL BACKGROUND

On August 12, 1983, at approximately 1:00 p.m., Corrie Armstrong, who was operating her 1978 Cadillac, was preparing to enter onto I-10 from Siegen Lane near Baton Rouge, Louisiana. In attempting to merge onto the interstate, Mrs. Armstrong stopped because of oncoming traffic and her vehicle was struck from the rear by a 1982 one-half ton pickup truck owned by J & R and operated by Ringswald, who was acting in the course and scope of his employment. The accident was a minor one, with Ringswald bumping the rear of Mrs. Armstrong's vehicle. The property damage to Mrs. Armstrong's vehicle consisted of some damage to a rubber portion of the bumper; Ringswald's vehicle was not damaged. However, Mrs. Armstrong immediately complained of back pain and later contended she experienced a mental condition, post-traumatic stress disorder, because of the accident.

*648 PROCEDURAL HISTORY

The Armstrongs filed suit against Ringswald, J & R as owner of the vehicle Ringswald was operating, and Fireman's Fund as J & R's insurer. A jury trial was held, and the jury returned its special verdict form assessing Ringswald with 100 percent fault and finding that the Armstrongs sustained damages as a result of the accident as follows:

a. Corrie Armstrong
   (1) Past and future pain
       and suffering             $2,000.00
   (2) Past and future mental
       anguish and emotional
       distress                     -0-
   (3) Maid Service              $ 325.00
   (4) Future mental expenses       -0-
   (5) Past loss of income          -0-
   (6) Future loss of income        -0-
   (7) Impairment of earning
       capacity                  $7,500.00
       TOTAL                     $9,825.00
b. Charles Armstrong
   (1) Loss of consortium         $ -0-

A judgment was prepared and signed in accordance with the jury's verdict. Additionally, the judge awarded legal interest, costs and fixed the expert witness fees.

The Armstrongs filed a motion for judgment notwithstanding the verdict, for a new trial and for additur, which was denied. The Armstrongs then perfected this devolutive appeal, alleging that the jury erred in making (1) an inadequate award for physical pain and suffering, (2) no award for mental anguish and emotional distress, (3) an inadequate award, or in some instances, no award, on elements of special damage and (4) no award for loss of consortium. The defendants answered the appeal, alleging that the jury erred (1) in finding defendants liable and (2) in awarding Mrs. Armstrong damages for loss of earning capacity.

DEFENDANTS' LIABILITY

Defendants allege that the jury erred in finding them liable for Mrs. Armstrong's injuries and/or in failing to attribute any percentage of fault to Mrs. Armstrong.

It is well settled jurisprudentially that the triers' findings of facts will not be disturbed unless manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). A review of the record shows that Ringswald admitted to bumping the rear of Mrs. Armstrong's vehicle. He noted that her brake lights were on and that when they went off, he assumed that she was going to pull out so he relaxed the pressure of his brakes and struck her. Defendants contend that Mrs. Armstrong created a sudden emergency which exonerates them of liability, or at least, renders her comparatively negligent. This circuit discussed in detail the sudden emergency doctrine in regard to a rear end collision in Fontenot v. Boehm, 512 So.2d 1192 (La. App. 1st Cir.1987). This doctrine provides an exception to the general rule that a following motorist is presumed negligent if he collides with the rear of a leading vehicle; i.e., when a following motorist is suddenly confronted with an unanticipated hazard created by a foward vehicle, which could not be reasonably avoided, the following driver will be adjudged free from fault. As stated in Boehm, 512 So.2d at 1194, it is the unanticipated hazard which is the foundation for invoking the sudden emergency doctrine. Here it is apparent that Ringswald noted that Mrs. Armstrong was stopped and should have anticipated that she might remain stopped or stop again while determining if it was safe to enter upon a heavily traveled interstate. Additionally, he was well aware that the roadway was wet from rain. Thus, Ringswald was negligent in failing to keep a proper lookout and following too closely and cannot invoke the sudden emergency doctrine to defend himself. This assignment of error is without merit.

PHYSICAL PAIN AND SUFFERING

Plaintiffs contend that the jury erred by making an inadequate award for physical pain and suffering. The trier of fact is given great discretion in the award of damages and the decision of the trial court should be affirmed unless the award represents an abuse of discretion. Only after determining that the record clearly supports a finding that the lower court abused its much discretion can the appellate *649 court disturb the award, and then only to the extent of lowering it to the highest point or raising it to the lowest point which is reasonably within the discretion afforded that court. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

Immediately following the accident, Mrs. Armstrong complained of back pain and she consulted the orthorpedist who had performed a spinal fusion on her in 1978, Dr. Hyman R. Soboloff. Following the 1983 accident, Dr. Soboloff first saw her at his office in New Orleans on August 16, 1983, at which time he found she had sustained a moderate lumbosacral strain with no damage to the prior fusion. Dr. Soboloff prescribed muscle relaxants, told her to use heat and a non-narcotic analgesic and advised her to restrict her activities such as work. Mrs. Armstrong, a realtor, owned and operated Villa Realty Corporation in Baton Rouge. Dr. Soboloff continued to treat Mrs. Armstrong over the next four months, allowing her to gradually return to work and other activities. On December 13, 1983, he told her she could return to a full day's work because of a subsidence of symptoms, but that she was to recheck with him in four to six weeks. She returned on January 17, 1984, complaining of pain, which he referred to as a flare-up brought on by her return to unrestricted work. At that time, he took additional x-rays which confirmed that the prior fusion was stable. Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
558 So. 2d 646, 1990 WL 15772, Counsel Stack Legal Research, https://law.counselstack.com/opinion/armstrong-v-firemans-fund-ins-co-lactapp-1990.