Brown v. Southern Farm Bureau Ins. Co.

426 So. 2d 684
CourtLouisiana Court of Appeal
DecidedDecember 21, 1982
Docket82 CA 0307
StatusPublished
Cited by17 cases

This text of 426 So. 2d 684 (Brown v. Southern Farm Bureau 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
Brown v. Southern Farm Bureau Ins. Co., 426 So. 2d 684 (La. Ct. App. 1982).

Opinion

426 So.2d 684 (1982)

Warren BROWN
v.
SOUTHERN FARM BUREAU INSURANCE COMPANY and Aetna Casualty and Surety Company.

No. 82 CA 0307.

Court of Appeal of Louisiana, First Circuit.

December 21, 1982.
Rehearing Denied February 17, 1983.

*686 J. Mark Graham, Houma, for defendant, intervenor and appellant.

Michael P. Pellegrin, Houma, for plaintiff and appellee.

Before LOTTINGER, COLE and CARTER, JJ.

COLE, Judge.

This suit arises from an automobile accident which occurred on January 18, 1980. On this date, plaintiff was driving an eighteen wheel tractor trailer rig which belonged to his employer, Weatherford-Lamb USA, Inc. He was engaged in the course and scope of his employment as a truck driver. As plaintiff proceeded towards Houma on Highway 90 in Terrebonne Parish, Louisiana he was hit by a pickup truck driven by Dennis E. Wilhite, who was killed in the accident. Plaintiff also suffered personal injuries in the accident which form the subject matter of the present suit. It is undisputed that the wreck resulted from the negligence of decedent Wilhite.

On April 11, 1980, plaintiff filed suit against Southern Farm Bureau Insurance Company (later properly designated as Louisiana Farm Bureau Mutual Insurance Company) as insurer of Dennis E. Wilhite. Since the Farm Bureau policy limit for liability was only $5,000, suit was also filed against Aetna Life & Casualty Insurance Company (later properly designated as Aetna Casualty and Surety Company) as uninsured motorist carrier covering the vehicle which plaintiff was driving at the time of the accident. Aetna filed a third-party demand against the succession of Wilhite and his insurer, Louisiana Farm Bureau. Aetna, in its capacity as workers' compensation insurer of plaintiff's employer, also filed a petition of intervention seeking recovery of amounts which it had paid and was paying to plaintiff under the Louisiana Workers' Compensation Act.

Prior to trial, all demands against Louisiana Farm Bureau and its insured, Dennis Wilhite, were compromised and settled and those claims were dismissed. On August 17, 1981, the case went to trial on the remaining claims of plaintiff against Aetna as uninsured motorist carrier; and on the intervention claims of Aetna as workers' compensation carrier. After trial on the merits, the trial court found the plaintiff to be insured under the uninsured motorist policy and awarded him $817,365.26 for past and future lost wages and benefits and an additional $150,000 for pain and suffering. The trial court also refused Aetna's claim for reimbursement of its compensation payments and dismissed the intervention.

From this adverse judgment, Aetna has appealed. Aetna's specification of alleged errors by the trial court follows:

1. The trial court awarded an excessive amount of damages.

2. The trial court erred in awarding interest from the date of judicial demand rather than from the date of judgment.

3. The trial court erred in failing to limit any recovery, including interest, to the limits of the uninsured motorist coverage available under the policy.

4. The trial court erred in refusing Aetna's claim for reimbursement of workers' compensation benefits from the proceeds of the uninsured motorist insurance available.

5. The trial court erred in failing to reduce any amount payable under the uninsured motorist coverage by sums paid or payable under workers' compensation and social security disability benefits.

QUANTUM

Plaintiff sustained a serious injury to his low back. This aggravated a pre-existing condition of spinal stenosis which was completely asymptomatic prior to the accident. Plaintiff initially was brought to see Dr. Thomas Haydel, whose preliminary diagnosis was that plaintiff had suffered a cervical and lumbar strain. Over the next few weeks, however, plaintiff's condition deteriorated to the point where he was referred to Dr. Richard Landry, an orthopedic surgeon. Dr. Landry first saw plaintiff on February 20, 1980, at which time he observed narrowed disc spaces between several *687 of plaintiff's vertebrae. Dr. Landry treated this condition for about four weeks with physical therapy. On March 19, 1980, with plaintiff's condition still deteriorating, a myelogram was performed which revealed a bulging disc at the L3-4 location. At this point, plaintiff was suffering from acute headaches, limited motion in the neck, acute low back pain, and numbness and inability to move the lower extremities.

On April 24, 1980, Dr. Landry performed a bilateral laminectomy between L3 and L4. A large facet joint as well as the lamina between L3 and L4 on the left and right side were removed. Additionally, a second incision was made in plaintiff's left hip area from which bone was removed to perform a fusion of plaintiff's spine between L3 and L4 to increase the spine's stability. It became apparent to Dr. Landry during this surgery that the combination of the bulging disc with the spinal stenosis was responsible for pressure on plaintiff's nerve roots which caused plaintiff's low back pain and extremity numbness and weakness.

Following the surgery, plaintiff's physical activities were severely limited. He was instructed to avoid sitting for a period of six to eight weeks, to wear a steel brace at all times except when sleeping, to walk as much as possible, and to avoid therapeutic stress to the spine in order that the fusion could become solid. However, X-rays taken in August 1980 indicated the fusion had failed to solidify. Therefore, plaintiff was forced to undergo a second fusion surgery on January 7, 1981 which was substantially similar to the first, except this time a bone graft was taken from the right hip. This second surgery was successful, though plaintiff's physical activities remain limited. Plaintiff continues to suffer headaches, stiffness in the neck, occasional swelling of the low back, occasional numbness of the lower extremities, acute depression, insomnia due to pain, poor appetite, and nervousness.

Plaintiff was forty years old at the time of the accident. He is married and is the father of five minor children who are dependent upon him for support, along with three of his wife's minor children who also live with them. Plaintiff has only a sixth grade education and a background of manual labor. An industrial psychologist who examined and tested plaintiff found he has below average intelligence and poor manual dexterity. Dr. Landry testified plaintiff's physical impairment precludes him from performing any work which would require lifting over thirty-five pounds, or any persistent bending, stooping, squatting, or prolonged standing or sitting. From this testimony, the trial court concluded plaintiff is permanently disabled and will never be able to find any work except for minimum wage jobs.

At trial, plaintiff called Dr. Seymour Goodman to testify as an expert economic witness regarding plaintiff's lost wages and benefits. The total lost wages and benefits, past and future, were calculated to be $817,365.26. The portion of this figure for the future lost wages ($693,442.50) was reached by projecting a total annual increase in salary of 8.57 percent, which was compounded annually over plaintiff's 21.8 year work life expectancy at the time of the trial and then discounted to present value at a rate of seven and one-quarter percent. This projected increase was based upon annual inflation rate of 5.36 percent and a 3.31 percent annual productivity increase.

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Bluebook (online)
426 So. 2d 684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-southern-farm-bureau-ins-co-lactapp-1982.