Boudreaux v. Blank

664 So. 2d 705, 1995 WL 640719
CourtLouisiana Court of Appeal
DecidedNovember 2, 1995
Docket95-547
StatusPublished
Cited by3 cases

This text of 664 So. 2d 705 (Boudreaux v. Blank) 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
Boudreaux v. Blank, 664 So. 2d 705, 1995 WL 640719 (La. Ct. App. 1995).

Opinion

664 So.2d 705 (1995)

Bonnie BOUDREAUX, et al., Plaintiffs-Appellants,
v.
S.P. BLANK, et al., Defendants-Appellees.

No. 95-547.

Court of Appeal of Louisiana, Third Circuit.

November 2, 1995.

*706 Bob F. Wright, Lafayette, for Bonnie Boudreaux et al.

Michael Wayne Fontenot, Lafayette, James Houston Morgan III, Baton Rouge, for S.P. Blank et al.

Before THIBODEAUX and WOODARD, JJ., and KNIGHT [*], J. Pro Tem.

WILLIAM N. KNIGHT, Judge Pro Tem.

The issue in this appeal is whether the jury abused its discretion in the assessment of general damage awards to the plaintiffs.

FACTS

On May 16, 1991, Bonnie Boudreaux, Larlaine Carpenter, and Annette Richard were guest passengers in a 1990 Dodge automobile that was being driven by Janelle Benoit, who was traveling south through the intersection of South Pierce Street and Cameron Street under a green light in Lafayette, Louisiana. At about the same time, Sanford P. Blank, who was driving a 1991 Chevrolet Corsica owned by Avis Rent A Car Systems, Inc., was proceeding east on Cameron Street. The automobiles collided at the intersection of South Pierce Street and Cameron Street when Blank ran a red light, striking the *707 Dodge on its right front door where Boudreaux was sitting as a passenger.

On May 14, 1992, Boudreaux, and her husband, Marvin, Carpenter, Benoit, and Richard filed suit against Blank, his automobile liability insurer, California State Automobile Association, and Avis Rent A Car Systems, Inc. Subsequently, Carpenter, Benoit, and Richard settled their claims against the defendants. Also, Pathfinder Insurance Company, Avis Rent A Car Systems, Inc.'s liability insurer, was added to the suit as a proper party defendant and Avis was dismissed from the suit. Before trial, defendants stipulated to liability; therefore, the only issue at trial was the extent of Bonnie's and Marvin's damages.

The case was tried before a jury on May 17 and 19, 1994. The jury awarded Bonnie general damages of $15,500.00; past lost wages of $1,500.00; past medical expenses of $13,000.00; and future medical expenses of $1,500.00. The jury also awarded Marvin $1,000.00 for his loss of consortium claim.

On May 25, 1994, the trial court signed the judgment encompassing the jury's damage awards. In response, Bonnie and Marvin filed a Motion For Judgment Notwithstanding the Verdict on the quantum award, and alternatively, a Motion For a New Trial and for Additur. After a hearing, the trial court denied the Boudreauxs' motions on November 16, 1994.

The Boudreauxs appeal from these two judgments and assert that the jury erred in awarding an inadequate sum of damages.

LAW

Bonnie argues that the jury abused its discretion in awarding only $15,500.00 in general damages for her face, jaw, neck, hip, and back injuries.

Our jurisprudence has consistently held that in the assessment of damages, much discretion is left to the judge or jury, and upon appellate review, such awards will be disturbed only when there has been a clear abuse of discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person was a clear abuse of the "much discretion" of the trier of fact. Youn v. Maritime Overseas Corporation, 623 So.2d 1257 (La.1993). Only after such a determination of an abuse of discretion is a resort to prior awards for similar injuries appropriate. Reck v. Stevens, 373 So.2d 498 (La.1979). At that point, the award will only be disturbed by raising the award to the lowest point which was reasonably within the discretion afforded to the trier of fact. Theriot v. Allstate Insurance Company, 625 So.2d 1337 (La.1993).

In the case sub judice, Bonnie testified that she never suffered from jaw, neck, hip, and back pain and headaches prior to the accident. This was corroborated by her husband, Marvin, and two co-employees, Janelle Benoit, and Larlaine Carpenter. Immediately after the accident, Bonnie was taken by ambulance to Hamilton Hospital in Lafayette, Louisiana. At the emergency room, Bonnie was complaining of right hip and back pain. She was examined by the emergency room doctor who diagnosed her with a right hip contusion. She was also noted to have some microscopic hematuria, which is a little blood in the urine. There was also a question of a small hairline fracture in the interior aspect of the neck off the right femur.

Two days later, Bonnie went to see Dr. Hugh Larriviere, an orthopedic surgeon. After examining her, Dr. Larriviere noted the following: (1) she had a large ecchymosis in the iliac crest on the right side, which is around the belt, that was very tender to touch and very painful; (2) standing on her heels was a painful experience at that time; (3) she had pain in the lower back area; and (4) the St. Patrick's test, which is a cross-legged test, hurt the right side of her back. When Dr. Larriviere saw Bonnie in July, he noted that she continued to have pain in her right hip. Also, Dr. Larriviere referred Bonnie to Dr. de Alvare, a neurologist, for her continued complaints of headaches and neck pains. Additionally, Dr. Larriviere ordered an MRI which revealed that Bonnie had a "L5-S1 small focal midline protrusion of disc material." Dr. Larriviere stated that he explained to Bonnie that since the protrusion at *708 the L5-S1 was not pressing against the nerve root, he would recommend physical therapy and prescribed anti-inflammatory agents. Further, he gave Bonnie epidural cortisone injections in her back for relief of pain in September and October 1991.

At that point, Dr. Larriviere testified that he explained to Bonnie that the pain was something she would have to adjust to and that she could notify him at his office if she had any further symptoms. Dr. Larriviere next saw Bonnie on March 23, 1993, when she complained of back and hip pain. He gave her a prescription for Voltaren, a non-steroidal anti-inflammatory agent, and told her that if she continued to experience pain, to contact his office. At trial, Dr. Larriviere related Bonnie's protruding disc to the accident. Finally, he acknowledged that Bonnie will always have pain in her lower back and that she would have to restrict her activities so that she would not put an abnormal stress on her back.

Bonnie also sought treatment from Dr. Michael Heard, an orthopedic surgeon. Dr. Heard first examined Bonnie on July 23, 1993 and he indicated that she was complaining of neck and back pain. Dr. Heard testified that during this examination, he noted that she had tenderness in the midline, middle neck area, lower neck area, and low back area. Dr. Heard stated that when he pressed on these areas, Bonnie would experience pain. Dr. Heard also ordered a Cat scan which indicated that "the last disc in the spine was bulging, was swelling out towards the spinal cord." He treated Bonnie's complaints of neck and back pain with medication. At trial, Dr. Heard unequivocally testified about Bonnie's back injury:

Well, she didn't have any of these problems before the accident. These developed after the accident. She has had them for three years, and if someone is going to get well, typically with an injury to their spine, soft tissue injury, they're going to get well, most of them within two months. The rest of them should—the other five, ten percent, may take six months to twelve months.

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Cite This Page — Counsel Stack

Bluebook (online)
664 So. 2d 705, 1995 WL 640719, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boudreaux-v-blank-lactapp-1995.