Boyette v. UNITED SERVICES AUTO. ASSOC.

760 So. 2d 492, 99 La.App. 3 Cir. 1755, 2000 La. App. LEXIS 852, 2000 WL 370495
CourtLouisiana Court of Appeal
DecidedApril 12, 2000
Docket99-1755
StatusPublished
Cited by3 cases

This text of 760 So. 2d 492 (Boyette v. UNITED SERVICES AUTO. ASSOC.) 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
Boyette v. UNITED SERVICES AUTO. ASSOC., 760 So. 2d 492, 99 La.App. 3 Cir. 1755, 2000 La. App. LEXIS 852, 2000 WL 370495 (La. Ct. App. 2000).

Opinion

760 So.2d 492 (2000)

Archie BOYETTE
v.
UNITED SERVICES AUTOMOBILE ASSOC., et al.

No. 99-1755.

Court of Appeal of Louisiana, Third Circuit.

April 12, 2000.
Rehearing Denied May 24, 2000.

*493 Bernard Kramer, Alexandria, Louisiana, Counsel for Plaintiff-Appellant.

Paul LaFleur, Gist, Methvin & Hughes, Alexandria, Louisiana, Counsel for Defendants-Appellees.

(Court composed of Judge HENRY L. YELVERTON, Judge BILLIE COLOMBARO WOODARD, Judge GLENN B. GREMILLION).

GREMILLION, Judge.

The plaintiff, Archie Boyette, appeals a jury verdict awarding him $50,000 in general damages and no damages for lost wages. He further argues that the trial *494 court erred in casting him with all court costs. For the following reasons, we affirm in part, amend in part, and reverse in part.

FACTS

Boyette sustained injuries to his lower back and neck on May 3, 1995, when his truck was rear-ended by a van driven by the defendant, Lisa Wyrick. As a result, Boyette filed suit against Wyrick and her insurer, United Services Automobile Association (USAA), and State Farm Mutual Automobile Insurance Company, his uninsured motorist policy provider. Scott Construction Equipment Company intervened in the suit, seeking to recover workers' compensation benefits paid to Boyette as a result of this accident. Scott Construction, Wyrick, and USAA were later dismissed from the suit via a Judgment of Dismissal of Selected Parties. The matter proceeded to trial against the remaining defendant, State Farm.

Following a jury trial, the jury rendered a verdict finding that Boyette was injured as a result of the May 3, 1995 accident. However, it only awarded him $50,000 in general damages and nothing for past or future lost wages. Since Boyette had settled with Wyrick for $50,000, the limits of her insurance policy with USAA, the trial court rendered judgment in favor of State Farm and dismissed Boyette's claims with prejudice. State Farm, who was cast with all court costs, filed a motion for partial new trial on the issue of court costs, arguing that Boyette should be cast with all costs since judgment was rendered in its favor. Following a hearing on the motion, the trial court granted State Farm's motion and modified the prior judgment to cast Boyette with all court costs. This appeal followed.

ISSUES

Boyette raises three assignments of error on appeal. He argues that the jury erred in failing to award him only $50,000 in general damages and no damages for lost wages. He also argues that the trial court erred in casting him with all court costs.

GENERAL DAMAGES

In Sengsouly v. Allstate Ins. Co., 99-22, pp. 5-6 (La.App. 3 Cir. 6/9/99); 744 So.2d 649, 652-53, writ denied, 99-2526 (La.11/19/99); 749 So.2d 677, this court stated:

The role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact, and the adequacy of the award should be determined by the facts or circumstances particular to the case under consideration. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). An appellate court should rarely disturb an award of general damages since the discretion vested in the trier of fact is great. Id. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of a particular injury to a particular plaintiff under the particular circumstances should the appellate court increase or reduce the award. Id. "The primary considerations in assessing damages are the severity and duration of the injured party's pain and suffering." Iorio v. Grossie, 94-846, p. 8 (La.App. 3 Cir. 10/4/95); 663 So.2d 366, 372.

Six days after the accident, Boyette was examined by Dr. C. Babson Fresh, a neurosurgeon who had performed two cervical fusions on him in 1992. He complained of neck and back pain, burning sensation up and down his spine, pain in his arms and hips, numbness in his hands and toes, sporadic weakness in his legs at times, and throbbing headaches. Dr. Fresh diagnosed Boyette as suffering from cervical and lumbar strain and recommended symptomatic treatment for his pain. On October 10, 1995, Dr. Fresh *495 noted that Boyette appeared to be suffering from depression. An MRI revealed some changes in the internal structure of the discs at L3-4, L4-5, evidence of the previous fusions at C4-5, C5-6, but no evidence of disc herniation in either the lumbar or cervical spine. On November 15, 1995, Dr. Fresh diagnosed Boyette as suffering from cervical and lumbar musculoligamentous strain, with aggravation of a pre-existing degenerative osteoarthritis, both cervical and lumbar. Dr. Fresh stated that the arthritic changes in Boyette's lower back could predispose him to injury in this type of accident. He further stated that the prior fusions put more stress on the segments above and below the fusions because the fused segments cannot move, thus, all movement occurs above and below the fused sections. Dr. Fresh felt that Boyette's condition was aggravated by his symptoms and his depression or psychological changes. Having no further treatment to offer, Dr. Fresh released Boyette from his care.

Dr. Rayland K. Beurlot, a specialist in physical medicine and rehabilitation, diagnosed Boyette as suffering from a possible spinal stenois, either in the cervical or lumbar spine, and relatively poor pain tolerance versus magnification. He further noted that Boyette exhibited stocking hypesthesia, which he described as a loss of or decreased feeling all the way around the leg. He stated that this condition can be related to a mental or psychological disorder. On November 28, 1995, Dr. Beurlot noted that Boyette moved very slowly and cautiously and that he was somewhat depressed. An EMG revealed spasm in the lumbar spine and bilateral carpal tunnel syndrome. Based on the EMG and the MRI, Dr. Beurlot determined that Boyette had not suffered damage to his spine.

When Boyette's pain continued to worsen, Dr. Beurlot determined that he was suffering from a soft tissue pain syndrome, and, because he felt that Boyette's psychological condition was playing a part in his condition, he referred him to a chronic pain clinic. On April 11, 1996, Dr. Beurlot concluded that Boyette's pain syndrome was due to a combination of degenerative changes in the cervical and lumbar spine and the carpal tunnel syndrome. Boyette returned to Dr. Beurlot on September 29, 1997. At that time, Dr. Beurlot reported that Boyette struck him as being depressed and that he smelled of alcohol. He ordered a functional capacity evaluation, which Boyette performed inconsistently at the sedentary level. Dr. Beurlot recommended psychological or psychiatric treatment because he felt that Boyette's mental condition was definitely affecting his physical condition.

Dr. Douglas Goodin, a psychiatrist, diagnosed Boyette with an adjustment disorder with depressed mood and substance abuse. He stated that after the May 3, 1995 accident, Boyette had difficulty sleeping, loss of or an impaired sexual function, and loss of interest in sex. His appetite had remained stable, but he had increased his alcohol consumption in order to self-medicate himself. Dr. Goodin described this as an adjustment disorder because, in addition to his pain problems, Boyette was having to adjust his lifestyle as the result of a specific incident.

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Bluebook (online)
760 So. 2d 492, 99 La.App. 3 Cir. 1755, 2000 La. App. LEXIS 852, 2000 WL 370495, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boyette-v-united-services-auto-assoc-lactapp-2000.