Blackshear v. Allstate Ins. Co.

647 So. 2d 589, 94 La.App. 3 Cir. 765, 1994 La. App. LEXIS 3343, 1994 WL 680440
CourtLouisiana Court of Appeal
DecidedDecember 7, 1994
Docket94-765
StatusPublished
Cited by7 cases

This text of 647 So. 2d 589 (Blackshear v. Allstate 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
Blackshear v. Allstate Ins. Co., 647 So. 2d 589, 94 La.App. 3 Cir. 765, 1994 La. App. LEXIS 3343, 1994 WL 680440 (La. Ct. App. 1994).

Opinion

647 So.2d 589 (1994)

Brian Alan BLACKSHEAR, Plaintiff-Appellant,
v.
ALLSTATE INSURANCE COMPANY, et al., Defendants-Appellees.

No. 94-765.

Court of Appeal of Louisiana, Third Circuit.

December 7, 1994.

*591 Robert M. McHale, Michael H. Schwartzberg, Lake Charles, for Brian Alan Blackshear.

Stephen A. Berniard Jr., Lake Charles, for Allstate Ins. Co., et al.

Wells Talbot Watson, Lake Charles, for William Daly.

Before YELVERTON, THIBODEAUX and PETERS, JJ.

PETERS, Judge.

Brian Alan Blackshear sustained personal injuries in a boating accident which occurred on May 21, 1989, on the Calcasieu River in southwest Louisiana. He instituted suit against William Daly, the operator of the boat, and Daly's liability insurer, Allstate Insurance Company, to recover his losses. Additionally, the action included a claim for punitive damages because of Daly's alleged intoxication at the time of the accident. After a bench trial, judgment was rendered in favor of Blackshear in a judgment itemized as follows:

General damages for injuries other than the back injury         $30,000.00
General damages for back injury                                  60,000.00
Past medical expenses                                            13,243.05
Future medical expenses                                          23,800.00
Punitive damages                                                 25,000.00
                                                               -----------
   TOTAL                                                       $152,043.05[1]

The plaintiff appeals alleging two assignments of error:

(1) The trial court's award of $30,000.00 was an abuse of its discretion, considering the items of damages that are represented by that figure; and,
(2) The trial court abused its discretion in not awarding the full amount of future medical expenses.

Allstate has answered the appeal alleging three assignments of error:

*592 (1) The trial court's award of $25,000.00 in punitive damages was an abuse of its discretion;
(2) The trial court erred in making any award to appellant for the back injury; and in the alternative
(3) The trial court abused its discretion when it awarded $60,000.00 in damages for the back injury.

Thus, the sole issues before this court in this personal injury case are whether the trial court erred in its award of general, special, and punitive damages.

GENERAL FACTS

At approximately 10:00 a.m. on May 21, 1989, Daly, Blackshear, who is Daly's nephew, and two other individuals launched a boat in the Calcasieu River for a day of boating, skiing, hydro-sliding, and swimming. The boat was a nineteen foot sports craft with a Mercury 150 horsepower motor and was supplied for the day by Daly. During the course of the day, the four individuals consumed almost two cases of beer.

The accident occurred at approximately 7:00 or 7:30 p.m. as Daly was traveling down the river in fading light and without running lights. At the point where the accident occurred, the river is straight and approximately 180 feet wide. Daly testified that he was traveling approximately forty to forty-five miles per hour when the boat left the river and crashed into the bank on the west side. He admitted that he was following the shoreline too closely and that he was impaired by alcohol. All of his passengers were asleep so that no one was on the lookout for any danger.

When Daly lost control of the boat, Blackshear was asleep on the passenger side which was the side that received extensive damage. According to Daly, all three of the passengers were rendered unconscious in the accident and were ferried across the river from the accident scene to the east bank with the assistance of the residents of the east bank. All the occupants, including Daly, were taken to the emergency room of the Lake Charles Memorial Hospital. At 9:50 p.m., blood was drawn from Daly for alcohol content analysis. Subsequent test results revealed that at the time the blood was drawn, his blood-alcohol concentration was one hundred eighty milligrams of alcohol per one hundred milliliters of blood.

ISSUES RAISED BY PLAINTIFF'S APPEAL

Plaintiff's Assignment of Error No. 1.

The trial court found that Blackshear suffered multiple abrasions and lacerations over his entire body, including specifically cuts to his arm, abdomen, and both legs and feet; chest pains; a mild concussion; a broken rib; injuries to his right little finger, left ankle, right foot, and right thigh; scars; and a back injury in the accident. Evaluating the back injury separately, the trial court awarded $30,000.00 in general damages for the remaining injuries, and Blackshear contends on appeal that this award should be increased.

Blackshear, who was nineteen years old at the time of the accident, received medical treatment at the Lake Charles Memorial Hospital emergency room for multiple abrasions and lacerations to the entire body and for a mild concussion. Surgery was performed in the emergency room to close lacerations of his trunk and extremities and to repair a split extensor tendon in his finger. According to Blackshear, he suffered pain all over his body the day following the accident and was bedridden for two to three weeks.

Blackshear first saw Dr. Arthur Bishop, a family practitioner and allergist practicing in Baytown, Texas on May 30, 1989, nine days after the accident. Dr. Bishop noted that Blackshear initially complained of multiple aches and pains, particularly in his back and chest. On this initial visit, Dr. Bishop removed some sutures and prescribed medication. On July 31, 1989, Dr. Bishop again saw Blackshear and removed a piece of glass located approximately one centimeter below the surface of the patient's right thigh.

On February 16, 1990, Blackshear again consulted Dr. Bishop concerning complaints of soreness in his upper torso where his pectoral muscles inserted with the breastbone. X-rays revealed a fractured first rib near its junction with the spinal column that *593 was not completely healed. Although Dr. Bishop testified that he thought the rib should have healed long before February 16, 1990, if sustained in the accident, he noted that occasionally a nonunion can occur. The trial court concluded the rib injury was related to the boat accident. The last time Blackshear saw Dr. Bishop prior to trial was on June 5, 1991, at which time the patient complained of lumbar and lower thoracic pain which will be discussed later in relation to the award for the back injury.

As a result of the accident, Blackshear sustained physical scars about the entire body, but particularly on the right hand, the lateral aspect of the right arm, the right side of the abdomen, the lateral aspect of the left lower leg, and the left ankle. These were treated by Dr. Keith Yates, a Baytown, Texas plastic surgeon, beginning May 31, 1989. Blackshear's right hand injury did not improve and resulted in loss of flexibility in the small finger of that hand. On November 12, 1991, Dr. Yates performed surgical excision and revision of the scars on the right hand in an attempt to "release" the finger and increase flexibility. Additionally, he performed excision and revision of the scars of the right forearm during the procedure to relieve the tension caused by the scarring.

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647 So. 2d 589, 94 La.App. 3 Cir. 765, 1994 La. App. LEXIS 3343, 1994 WL 680440, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blackshear-v-allstate-ins-co-lactapp-1994.