Brannon v. Shelter Mut. Ins. Co.

520 So. 2d 984, 1987 WL 59
CourtLouisiana Court of Appeal
DecidedJanuary 18, 1988
Docket85-1159
StatusPublished
Cited by20 cases

This text of 520 So. 2d 984 (Brannon v. Shelter Mut. 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
Brannon v. Shelter Mut. Ins. Co., 520 So. 2d 984, 1987 WL 59 (La. Ct. App. 1988).

Opinion

520 So.2d 984 (1987)

Dorothy Couvillion BRANNON, Plaintiff-Appellant,
v.
SHELTER MUTUAL INSURANCE COMPANY & Succession of Anna Joyce Meche Carriere Through her appointed Provisional Administrator, Uallen J. Carriere, Jr., Defendants-Appellees.

No. 85-1159.

Court of Appeal of Louisiana, Third Circuit.

November 16, 1987.
On Rehearing January 18, 1988.

Knoll, Roy & Spruill, Jerold E. Knoll and Clark C. Roy, Natchitoches, for plaintiff-appellant.

Voorhies & Labbe, E. Gregg Voorhies, Lafayette, for defendants-appellees.

Before DOMENGEAUX, DOUCET and LABORDE, JJ.

DOUCET, Judge.

Plaintiff, Mrs. Dorothy Brannon, a passenger in an automobile driven by Anna Joyce Carriere, received severe injuries when the automobile ran off the highway and crashed into a tree. The trial court found that defendants established the affirmative defense of the decedent driver's sudden unconsciousness, barring any finding of negligence on her part or recovery of damages by the plaintiff. We affirmed after concluding that there was a sufficient factual basis for the trial court's finding which was not manifestly erroneous. Brannon v. Shelter Mutual Insurance Co., 496 So.2d 1354 (La.App. 3rd Cir.1986). On writ of review the Supreme Court reversed, *985 finding that the defense of sudden unconsciousness was not proven by clear and convincing evidence, which it determined, was the applicable standard of proof. Brannon v. Shelter Mutual Insurance Co., 507 So.2d 194 (La.1987). On remand the sole issue presented is the amount of damages to which plaintiff is entitled for her injuries.

Mrs. Brannon, who was fifty-nine years old at the time of the accident, sustained fractures of both arms. Her right arm was fractured in two places, the left in four, requiring the insertion of metal rods into each arm. At trial, the judge viewed and described the operational scars on plaintiff's arms. On the right arm the scar ran from slightly below the shoulder past the elbow to the forearm. On the left arm the scar ran from the shoulder to the elbow. Both ankles were fractured, one being a compound fracture protruding through the skin. It was necessary to place metal supports in each ankle. Her right hip was fractured and dislocated. Eight months after the accident the right hip joint was totally replaced with an artificial one. Plaintiff also suffered fractured ribs on both her left and right sides and sustained a severe laceration of the face and scalp.

Following the accident plaintiff received treatment in a private hospital for three months, transferred to a nursing home for one month, returned to the hospital for operations, and received in-patient treatment at a charity hospital. She testified concerning the substantial pain and discomfort she experienced following the accident, and, to a lesser degree, was still experiencing at the time of trial. She testified that on a typical day she gets up in a wheelchair and eats breakfast. She then sits on the sofa until noon when her daughter comes to prepare lunch for her. She cannot walk without a brace on her left ankle. She must sit on a bench to bathe herself as she is unable to sit down in the tub for a bath or stand up for a shower. She also testified that she was unable to return to work at Garan, Inc., where she had worked since 1974 making zippers for clothing. This, because she does not have full use of her right hand due to the injuries sustained to her right arm. She also stated that she was unable to walk very far or stand for any length of time.

Mrs. Brannon's daughter testified that before the accident her mother was a healthy, active person. She was able to drive before the accident but does not drive anymore. She testified to the substantial pain that her mother appeared to be in following the accident and stated that she still suffers significant pain. Both Mrs. Brannon and her daughter admitted that at the time of trial the only medication she was taking for pain was Tylenol, the type that can be purchased over-the-counter without a prescription. No medical testimony was presented, either by live witness or deposition.

Plaintiff's past medical expenses at the time of trial totalled $135,929.32. Plaintiff seeks a total of $598,302.12 for past and future physical and mental pain and suffering, past and future medical expenses, and past and future loss of income.

PAIN AND SUFFERING

Plaintiff seeks a total of $300,000 for past and future pain and suffering, both mental and physical. The record clearly evidences the pain and suffering experienced by Mrs. Brannon following the accident. However the only medical evidence relating to this item of damages was a narrative medical report by Dr. James Lafleur summarizing the extent and treatment of plaintiff's injuries. This report was prepared by Dr. Lafleur almost a full year after he had last examined the plaintiff. There was no medical evidence presented concerning any future disability or complications from her injuries. However, considering the age of the plaintiff, the extent of her injuries, and condition at the time of trial, we believe there is sufficient evidence to conclude that she will continue to be restricted in her daily activities and suffer residual pain.

General damages, or damages for pain and suffering, cannot be fixed with any degree of pecuniary exactitude. Boswell v. *986 Roy O. Martin Lumber Co., 363 So.2d 506 (La.1978); Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974). Though we may look to awards made in similar cases, the facts and circumstances of each case are unique and the award must be based on those unique factors. Plaintiff cites as illustrative an award of general damages in the amount of $304,000. Defendants cite several similar cases where awards were made for general damages in the amounts of $60,000, $16,000, $35,000, and $37,000. They suggest that an award of $50,000 would adequately compensate the plaintiff for pain and suffering. Considering these and other awards, and the unique facts and circumstances of this case, we feel that an award of $100,000 for plaintiff's pain and suffering would be proper, particularly in view of the fact that the record is so devoid of medical evidence to support a claim for a higher award.

MEDICAL EXPENSES

A. PAST EXPENSES

The evidence established that at the time of trial plaintiff had been billed $135,929.32 for medical treatment. Mrs. Brannon maintained health and accident insurance through her employer. The insurer, Provident Life & Casualty Insurance Company, paid $52,382.03 of plaintiff's medical expenses for treatment received at Our Lady of Lourdes Hospital. The hospital took the balance owed them as a "contractual adjustment." Defendant argues that plaintiff is now only indebted for medical expenses in the amount of $57,579.96 and therefore her recovery should be limited to that amount.

The "collateral source rule" holds that a tortfeasor may not benefit because of payments made through insurance benefits received by the victim from sources independent of the wrongdoer's procuration or contribution. Hudson v. Thompson, 422 So.2d 640 (La.App. 3rd Cir.1982); Weir v. Gasper, 459 So.2d 655 (La.App. 4th Cir.1984) writ denied, 462 So.2d 650 (La.1985); Tumblin v. Gratech Corp., 448 So.2d 179 (La.App. 4th Cir.1984). In view of this established jurisprudential rule it is clear that the defendants are not relieved of liability for that portion of plaintiff's medical expenses paid by her insurer.

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Bluebook (online)
520 So. 2d 984, 1987 WL 59, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brannon-v-shelter-mut-ins-co-lactapp-1988.