Brandy Lynn Fecke, Stephen C. Fecke, and Karen Fecke v. the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College

217 So. 3d 237, 2016 La. LEXIS 1803
CourtSupreme Court of Louisiana
DecidedSeptember 23, 2016
DocketNO. 2015-C-1806, NO. 2015-C-1807
StatusPublished
Cited by10 cases

This text of 217 So. 3d 237 (Brandy Lynn Fecke, Stephen C. Fecke, and Karen Fecke v. the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brandy Lynn Fecke, Stephen C. Fecke, and Karen Fecke v. the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, 217 So. 3d 237, 2016 La. LEXIS 1803 (La. 2016).

Opinions

CLARK, J.

| t These consolidated writs arise from a personal injury suit brought pursuant to the Louisiana Governmental Claims Act, La. Rev. Stat. 13:5101 et seq., with specific reference to La. Rev. Stat. 13:51061. The [240]*240plaintiffs, Brandy Lynn Fecke, |2and her parents Stephen and Karen Fecke, and the defendant, the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College (“LSU Board”), sought review of the court of appeal’s judgment. We granted certiorari to interpret specific provisions within the Act including La. Rev. Stat. 39:1533.22, and to resolve three issues: (1) whether a plaintiff is entitled to legal interest on an award for future medical care paid directly to the health care provider from the Future Medical Care Fund (“FMCF”); (2) whether a plaintiff is entitled to recover attorney’s fees and costs from an award for future medical care prior to its placement into the FMCF; and (3) whether a plaintiff who was unemployed at the time of the injury is entitled to recover the loss of future earnings. Fecke v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, 2015-1806 (La. 2/19/16), 186 So.3d 1177, and 2015-1807 (La. 2/19/16), 186 So.3d 1175.

[241]*241laFor the reasons set forth below, we now hold a plaintiff who is awarded future medical care pursuant to La. Rev. Stat. 13:5106(B)(3)(c) is not entitled to legal interest on the award and may not recover attorney’s fees or costs from the award prior to. its placement into the FMCF. We further hold a plaintiff who was unemployed at the time of the injury may recover the loss of future earnings, as defined in La. Rev. Stat. 13:5106(D)(2).

FACTS AND PROCEDURAL HISTORY

On December 3, 2008, Brandy, a 23-year-old, senior at LSU, went to an indoor rock climbing facility located at the LSU Recreation Center (“Rec Center”) to fulfill a compulsory rock climbing assignment for an Outdoor Living Skills Activity course. Upon arrival, Brandy executed the “Rock Wall Participation Agreement” required by LSU. After instruction and a climbing demonstration by the Rec Center employees, Brandy successfully climbed the wall. However, while descending, she fell from the wall, landed on her left foot and fractured the talus bone in her ankle. As a result of the injury, Brandy underwent three surgeries and will require additional surgery, including either a permanent ankle fusion or ankle replacement.

The Feckes filed a petition for damages against the LSU Board. Following a trial, the jury found the LSU Board 75% and Brandy 25% at fault, and awarded Brandy total damages of $1,925,392.72, and Karen Fecke $50,000.00 for loss of consortium. In accord with the jury verdict, the trial court rendered a judgment in favor of Brandy as follows:

$. 112,500.00 Past and Future Physical Pain and Suffering

$ 93,750.00 Past and Future Mental Pain and Suffering

$ 56,250.00 Loss of Enjoyment of Life

$ 123,750.00 Permanent Scarring and Disfigurement

Past Medical Expenses $ 45,294.54

Future Medical Expenses $ 750,000.00

LossofFuture Earnings $ 262.500,00

TOTAL: $1,444,044.54,

Lplus judicial interest in the amount of 6.0% pursuant to La. Rev. Stat. 13:5112(C)3, from the date of judicial demand until paid, and for all costs of the proceedings. The trial court judgment ordered that, after reduction for attorney’s [242]*242fees and costs, Brandy’s award for future medical expenses of $750,000.00, plus judicial interest, be placed in the Future Medical Care Trust in accord with La. Rev. Stat. 13:5106(B)(3)(c). The tidal court judgment also awarded Karen Fecke $37,500,00 for loss of consortium, plus legal interest and costs. Last, the trial court judgment cast the LSU Board for all court costs, including the fees of the five expert witnesses.

The LSU Board appealed. In a lengthy opinion, the First Circuit Court of Appeal reversed in part, amended in part, and affirmed as amended the trial court judgment. Fecke v. The Board of Supervisors of Louisiana State University and Agricultural and . Mechanical College, 2015-0017 (La.App. 1 Cir. 7/7/15), 180 So.3d 326.

The court of appeal amended the judgment to make future medical care payable out of the FMCF, instead of a reversion-ary trust fund. The court found the LSU Board is a state agency as defined in La. Rev. Stat. 13:5102(A)4 and, I «thus, governed by La. Rev. Stat. 13:5106(B)(3)(c). Fecke, 2015-0017 at 10, 180 So.3d at 337-38.

Next, the court of appeal determined Brandy is entitled to legal interest on the award under La. Rev. Stat. 13:5112(0); however, the interest had to be paid into the FMCF. The court noted that La. Rev. Stat. 13:5106(B)(3)(e) requires the fund to pay a claimant’s future medicals and related benefits directly to the provider as they are incurred, and does not provide for payment directly to the claimant. It also cited La. Rev. Stat. 39:1533.2(B), which requires interest earned on investment of monies in the FMCF to be deposited in and credited to the fund. Thus, the court vacated the part of the judgment awarding legal interest on the future medical care award directly to Brandy. Fecke, 2015-0017 at 11,180 So.3d at 338,

The court of appeal further determined Brandy is not entitled to recover attorney’s fees and costs from the future medical care award prior to its placement into the trust (ie., the FMCF), because “medical care and related benefits,” as defined in La. Rev. Stat. 13:5106(D)(1), does not include attorney’s fees. The court noted the FMCF statute does not provide for a lump sum to be placed into the fund in either Brandy’s name or on her behalf, from which attorney’s fees and costs could be paid. Thus, the court vacated that portion [243]*243of the trial court judgment. Fecke, 2015-0017 at 12-13,180 So.3d at 338-39.

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217 So. 3d 237, 2016 La. LEXIS 1803, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brandy-lynn-fecke-stephen-c-fecke-and-karen-fecke-v-the-board-of-la-2016.