Billiot v. K-Mart Corp.

764 So. 2d 329, 2000 WL 830700
CourtLouisiana Court of Appeal
DecidedJune 23, 2000
Docket99 CA 1569
StatusPublished
Cited by6 cases

This text of 764 So. 2d 329 (Billiot v. K-Mart Corp.) 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
Billiot v. K-Mart Corp., 764 So. 2d 329, 2000 WL 830700 (La. Ct. App. 2000).

Opinion

764 So.2d 329 (2000)

Mary BILLIOT and Eugene Billiot
v.
K-MART CORPORATION.

No. 99 CA 1569.

Court of Appeal of Louisiana, First Circuit.

June 23, 2000.
Writ Denied October 13, 2000.

*330 John M. Carmouche, Donaldsonville, Counsel for plaintiffs/appellants, Mary and Eugene Billiot.

Jack E. Truitt, Madisonville, Counsel for defendant/appellee, K-Mart Corporation.

Before: FOIL, WHIPPLE and GUIDRY, JJ.

WHIPPLE, J.

This is an appeal by plaintiffs, Eugene and Mary Billiot, from a judgment which awarded Mrs. Billiot $5,000.00 in general damages as well as certain medical expenses as a result of injuries sustained in an accident at K-Mart, but which denied Mr. Billiot's loss of consortium claim. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On January 9, 1997, Mary Billiot and a friend, Stacy Fitch, were shopping at K-Mart in Houma, Louisiana. As Mrs. Billiot proceeded down an aisle, she was struck in the left shoulder by approximately twenty plastic storage container lids, which had been knocked off of the shelf above by a K-Mart employee working on the next aisle. Mrs. Billiot, who was holding on to a shopping cart, was not knocked to the ground, and at that point, she did not think *331 that she was injured. Thus, she and Fitch left the store.

However, later that evening, Mrs. Billiot began experiencing pain, including a "pinching" in her shoulder and a headache. Thus, she sought treatment from her family doctor, Dr. Thomas Givens. Thereafter, Mrs. Billiot was also treated by several other doctors for persistent headaches, cervical pain and left trapezius pain extending down the left arm.

Mrs. Billiot and her husband filed suit against K-Mart, seeking damages for the injuries Mrs. Billiot had sustained and for loss of consortium. Following a bench trial, the trial court rendered judgment in favor of Mrs. Billiot and against K-Mart, awarding her $5,000.00 in general damages and $8,374.99 in medical expenses. Thereafter, a contradictory hearing was held on the intervention of the Billiots' previous attorney, wherein he requested reimbursement of expenses and attorney's fees. Following the hearing on the intervention, the trial court rendered an amended judgment, incorporating the terms of the original judgment and further rendering judgment in favor of plaintiffs' previous attorney, in the amounts of $1,725.00 in costs and $200.00 in attorney's fees, to be paid out of the $5,000.00 amount the court had previously awarded to Mrs. Billiot; and $3,025.55 in medical expenses paid and/or guaranteed by him, to be paid out of the $8,374.99 amount previously awarded to Mrs. Billiot for medical expenses.

From these judgments, the Billiots appeal, contending that the trial court abused its discretion in: (1) awarding Mrs. Billiot inadequate general damages and denying Mr. Billiot's claim for loss of consortium; and (2) holding that Mrs. Billiot's former attorney was entitled to reimbursement of all expenses and costs he incurred in priority to any reimbursement of expenses and costs and any attorney's fees being paid to the Billiots' present attorney.[1]

DAMAGES

General Damages

In their first assignment of error, the Billiots contend that the trial court abused its discretion in awarding inadequate general damages. Based upon our review of the record on appeal, we find no such abuse of the trial court's great discretion.

The trier of fact is accorded much discretion in fixing general damage awards. LSA-C.C. art. 2324.1; Cheramie v. Horst, 93-1168, p. 6 (La.App. 1st Cir.5/20/94), 637 So.2d 720, 723. The discretion vested in the trier of fact is great, even "vast," so that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

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. Reasonable persons frequently disagree about the measure of general damages in a particular case. 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. Youn, 623 So.2d at 1261.

In the instant case, Mrs. Billiot testified that she began experiencing pain on *332 the evening of the accident, including a "pinching" in her shoulder and a headache. Since the accident, she has continued to suffer with these problems, and as of the time of trial, Mrs. Billiot claimed that, while her condition has improved, she still suffers from headaches and a pinching in the shoulder on occasion.

Mrs. Billiot was first examined by her family practitioner, Dr. Thomas Givens, who referred her to Dr. Bradley Bartholomew, a neurosurgeon. Dr. Bartholomew treated Mrs. Billiot for approximately one month, from January 21, 1997 to February 25, 1997. She reported to him that she was experiencing cervical pain; left trapezius pain, radiating down the left arm to the fingers; and headaches. On physical examination, Dr. Bartholomew noted "a large amount of paravertebral spasm and tenderness." His initial impression was "cervical radiculopathy vs. brachial plexus injury vs. shoulder injury," and he ordered an MRI scan. The MRI was later performed and did not demonstrate any evidence of a herniated disc.

At that point, Dr. Bartholomew recommended physical therapy three times a week for three to four weeks. However, Mrs. Billiot reported to him that after three sessions of physical therapy, she experienced increased pain and headaches. As of the last visit on February 25, 1997, Dr. Bartholomew noted that it was difficult to evaluate Mrs. Billiot because of "so much pain." He recommended an EMG and nerve conduction studies on that visit; however, he had not seen Mrs. Billiot since that time and had no knowledge whether she had undergone that testing.

Mrs. Billiot was also treated by Dr. Christopher Cenac, an orthopedic surgeon, at the referral of her previous attorney. He first saw Mrs. Billiot on March 18, 1997, and treated her on ten occasions over a ten-month period. After the first visit, Dr. Cenac's diagnosis was a resolving contusion to the left shoulder and a cervical strain with post-traumatic headaches. Dr. Cenac referred Mrs. Billiot to Dr. Dan Trahant, a neurologist, for treatment of the headaches, and prescribed physical therapy, a TENS unit and medication. However, Mrs. Billiot's complaints of headaches, pain in the neck and arm and numbness in the left hand persisted.

At the recommendation of Dr. Trahant, Dr. Cenac scheduled an appointment for Mrs. Billiot with Dr. James Ponder, for cervical epidural blocks and trigger point injections. However, while Dr. Ponder performed a series of three injections, Mrs. Billiot related to him that she did not experience any relief from her pain. Thus, Dr. Ponder opined that Mrs. Billiot's symptoms were not secondary to cervical radiculitis.

When Dr. Cenac next saw Mrs. Billiot after the trigger point injection therapy, he recommended that she undergo an MMPI examination. Dr. Cenac explained that if Mrs.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Pfefferle v. Haynes Best Western of Alexandria
38 So. 3d 1189 (Louisiana Court of Appeal, 2010)
Mahmood v. Cathey
981 So. 2d 831 (Louisiana Court of Appeal, 2008)
Theodile v. RPM Pizza, Inc.
865 So. 2d 980 (Louisiana Court of Appeal, 2004)
Lawanda Theodile v. Rpm Pizza, Inc.
Louisiana Court of Appeal, 2004
Lapeyrouse v. Barbaree
836 So. 2d 417 (Louisiana Court of Appeal, 2002)
Smith v. Roussel
809 So. 2d 159 (Louisiana Court of Appeal, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
764 So. 2d 329, 2000 WL 830700, Counsel Stack Legal Research, https://law.counselstack.com/opinion/billiot-v-k-mart-corp-lactapp-2000.