Averette v. Phillips

185 So. 3d 16, 2015 La.App. 1 Cir. 0137, 2015 La. App. LEXIS 2252, 2015 WL 6966077
CourtLouisiana Court of Appeal
DecidedNovember 10, 2015
DocketNo. 2015 CA 0137
StatusPublished
Cited by1 cases

This text of 185 So. 3d 16 (Averette v. Phillips) 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
Averette v. Phillips, 185 So. 3d 16, 2015 La.App. 1 Cir. 0137, 2015 La. App. LEXIS 2252, 2015 WL 6966077 (La. Ct. App. 2015).

Opinions

McDonald, j.

Lin this case the only issue on appeal is whether the trier of fact- could award future special damages without awarding future general damages. We find that under the circumstances of this case the district court did not abuse its discretion in awarding future, special damages without awarding future general damages, and we affirm the district court judgment.

FACTS AND PROCEDURAL HISTORY

The plaintiff, Lana Averette, was driving on the Highway 1 exit in Port Allen, Louisiana when her car was rear-ended by an Entergy bucket truck driven by- Adam Phillips,' ah employee of Entergy Gulf States Louisiana, L.L.C. (Entergy). Ms. Averette suffered spinal injuries from the accident, and filed suit on June 11, 2013, asserting that she was injured in the accident, and naming as defendants Entergy and Mr. Phillips. At the conclusion of the trial on May 15, 2014, the jury returned a verdict in favor of Ms. Averette in the amount of $42,373.00 for past lost wages, $58,378.00 for past medical expenses, $75,000.00 for past mental anguish and emotional distress, $75,000.00 for past lost enjoyment of life; $75,000.00 for past pain and suffering, and $500,000.00 for future medical expenses, for a total award of $825,751.00 in-damages.

The district court entered judgment for Ms. Averette and against Entergy and Mr. Phillips in accordance with the jury verdict, and awarded the intervenors, Greater Louisiana Staffing, Inc. (Ms. Averette’s [18]*18employer) and Louisiana Construction and Industry Self Insurers Fund (Greater Louisiana Staffing, Inc.’s workers’ compensation self-insurer fund), $23,826.88 from the total damages award to Ms. Averette. Further, the district court judgment decreed that the intervenors “shall receive whatever statutory credit is due on their remaining workers’ compensation obligation, said credit to be fixed at a later date by a court of competent jurisdiction.”

IsEntergy and Mr. Phillips' filed a motion for judgment notwithstanding the verdict or alternatively a motion for new trial, maintaining that the jury erred as a matter of law and returned an inconsistent verdict by awarding future special- damages and no future general damages. In response, Ms. Averette filed an opposition to the motion for judgment notwithstanding the verdict, or alternatively, a motion for judgment, notwithstanding the verdict, maintaining that the jury verdict was not inconsistent, but that if the district court found the verdict inconsistent, it should remedy the situation by awarding Ms. Av-erette future general damages. The district court denied all of the motions.

ASSIGNMENTS OF ERROR AND ANALYSIS

Entergy and Mr. Phillips appealed, asserting that the district court erred in denying its judgment notwithstanding the verdict and alternatively its motion for new trial when the jury-.returned an inconsistent verdict that constituted legal error. Specifically,- they assert that the district court erred as a matter of law in awarding future special damages without awarding future general -damages. Ms. Averette filed an answer to the appeal, requesting that in the event this court finds that the jury verdict is inconsistent, it-make an award of future general damages based upon the record.1

- At trial, Ms. -Averette’s attorney argued she would need future spinal rhizotomies2 and epidural steroid injections to prevent future pain and impairment to her future enjoyment of life and gainful employment. Ms. Averette’s attorney asked the jury not to award her future general damages, but to award her the cost of |4the future medical treatments. The jury 'gave Ms. Aver-ette the exact amount she asked for in every category of damages.

Entergy and Mr. Phillips maintain that because Ms. Averette waived her claim for future pain and suffering, which was the reason she would need, future medical procedures and medication, she waived her claim for future medical expenses. Enter-gy and Mr. Phillips argue that. the. law is clear that a plaintiff cannot have future medical expenses without future pain and suffering.

A jury verdict awarding medical expenses, but simultaneously denying [19]*19damages for pain and suffering will most often be found inconsistent in light of the record. The courts have acknowledged, however, that under certain circumstances the evidence of record supports both an award of medical expenses and a concurrent denial of general damages. Effectively, then, the ultimate question has been whether the factfinder made inconsistent awards and thus abused its discretion. Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70, 75. A reviewing court must ask whether the jury’s determination that plaintiff is entitled to certain medical expenses but not to general damages is so inconsistent as to constitute an abuse of discretion. Only after the reviewing court determines that- the fact-finder has abused its much discretion can that court conduct a de novo review of the record. Id., 774 So.2d at 76.

Entergy and Mr. Phillips cite Cheramie v. Horst, 93-1168 (La.App. 1 Cir. 5/20/94), 637 So.2d 720, Verret v. Carline, 93-0508 (La.App. 1 Cir. 3/11/94), 634 So.2d 37, writ denied, 94-0842 (La.5/13/94), 637 So.2d 1070, and Sumrall v. Sumrall, 612 So.2d 1010 (La.App. 2 Cir.1993), in support of their argument. In Cheramie, the plaintiff was injured in an automobile accident and filed suit for damages. After a trial, the plaintiff was awarded future medical expenses but no future general damages. Claiming that the verdict was inconsistent, plaintiff filed a motion for new trial (rather than using a motion for judgment notwithstanding the | sverdict or JNOV), which was granted by the trial court. This court affirmed the judgment; finding that the new trial was a valid way to correct a legal error in the original jury verdict, and affirmed the judgment. Cheramie, 637 So.2d at 721-22.

In Verret, the plaintiff was injured in an automobile accident and filed suit for damages. In that case, the jury awarded damages for medical expenses, past and future, but no general damages. The plaintiff filed a motion for JNOV, which was granted by, the trial court. The trial court amended the award to add damages for pain and suffering, aggravation of preexisting condition, and new physical injuries. On appeal, this court found that the.trial court properly granted the JNOV where the plaintiff suffered injuries-in an accident and was awarded special damages but no general damages, and affirmed the judgment. Verret, 634 So.2d at 38-40.

In Sumrall, the plaintiff, was injured by her ex-husband while divorce, proceedings were pending. Plaintiff filed suit for damages, and the jury awarded medical damages but no general damages.. Plaintiff filed a motion for JNOV, which the trial court granted, increasing her medical awards and awarding her general damages. The defendant appealed the judgment. The appellate court found that the jury made a legal error in awarding special damages for medical expenses but failing to award general damages, and affirmed the judgment. Sumrall, 612 So.2d at 1012-16.

Generally, when a party complains about an inconsistent verdict because future special damages were awarded and future general damages were not awarded, it is the plaintiff asking to be awarded future general damages in addition to the future special damages that were awarded. This appeal presents the issue in a different posture, wherein the

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Bluebook (online)
185 So. 3d 16, 2015 La.App. 1 Cir. 0137, 2015 La. App. LEXIS 2252, 2015 WL 6966077, Counsel Stack Legal Research, https://law.counselstack.com/opinion/averette-v-phillips-lactapp-2015.