Brumfield v. Guilmino

633 So. 2d 903, 1994 WL 86199
CourtLouisiana Court of Appeal
DecidedMarch 11, 1994
DocketCA 93 0366
StatusPublished
Cited by47 cases

This text of 633 So. 2d 903 (Brumfield v. Guilmino) 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
Brumfield v. Guilmino, 633 So. 2d 903, 1994 WL 86199 (La. Ct. App. 1994).

Opinion

633 So.2d 903 (1994)

Silvester E. BRUMFIELD
v.
Alcee M. GUILMINO, Mark P. Carnesi, James B. Webb and State Farm Mutual Automobile Insurance Company.

No. CA 93 0366.

Court of Appeal of Louisiana, First Circuit.

March 11, 1994.

*906 Emery Norton Voorhies, Ward & Clesi, Covington, for defendant-appellant Alcee M. Guilmino.

Harry P. Pastuszek, Jr., James E. Moorman, Muller & Pastuszek, Mandeville, for plaintiff-appellee Silvester E. Brumfield.

Before CARTER, GONZALES and WHIPPLE, JJ.

WHIPPLE, Judge.

This case is before us on appeal from a judgment in favor of plaintiff, Silvester E. Brumfield, and against defendant, Alcee M. Guilmino, awarding plaintiff damages. From this judgment, defendant appeals. We affirm.

FACTS

This lawsuit arises from an automobile collision which occurred on October 5, 1986, in St. Tammany Parish, Louisiana. On that date, at approximately eight o'clock p.m., Brumfield was operating a 1981 Buick Skylark southbound on Louisiana Highway 25. Guilmino, the operator of a 1979 Ford pick-up truck, owned by Mark P. Carnesi, was travelling northbound on Louisiana Highway 25. The first collision occurred when Guilmino fell asleep at the wheel and crossed the centerline of the highway, colliding head-on with the Brumfield vehicle. Shortly thereafter, James B. Webb, travelling southbound on Louisiana Highway 25, approached the accident scene and side-swiped the Brumfield vehicle, ultimately striking the Guilmino vehicle. As a result, Brumfield sustained serious personal injuries.

PROCEDURAL HISTORY

Brumfield filed a suit for damages against Guilmino, Carnesi, Webb, and State Farm Mutual Automobile Insurance Company (State Farm), the liability insurer of the Carnesi and Webb vehicles. Prior to trial, plaintiff dismissed Carnesi, without prejudice. Plaintiff also dismissed Webb and State Farm, in its capacity as Webb's insurer, with prejudice. State Farm was subsequently dismissed from the litigation when the trial court granted its motion for summary judgment.[1] Accordingly, the matter proceeded to trial against Guilmino only. Plaintiff's claim against Guilmino was for compensatory damages as well as exemplary damages, pursuant to LSA-C.C. art. 2315.4.[2]

The matter was tried before a jury on June 22, 23 and 24, 1992. Following trial, the jury rendered a verdict in favor of plaintiff, assessing 90% fault to Guilmino and 10% fault to Webb. Compensatory damages were awarded as follows:

Past pain and suffering, mental
  anguish, loss of enjoyment of
  life, disability and other general
  damages.............................$120,000.00
Future pain and suffering, mental
  anguish and other general
  damages.............................$240,000.00
Past medical expenses.................$ 61,000.00
Future medical expenses...............$ 75,000.00
Impairment of future earning capacity
......................................$ 50,000.00

The jury also awarded $150,000.00 as exemplary damages.

The trial court signed an initial judgment on July 14, 1992. This judgment awarded *907 plaintiff the total sum of $596,000.00, less $59,600.00, representing Webb's 10% comparative fault. The judgment also provided that plaintiff's award be reduced by an additional $122,780.12, representing the credit due Guilmino for the previous deposits made by State Farm and withdrawn by plaintiff from the registry of the court prior to trial. The judgment further provided that each party bear his own costs.

Guilmino filed a motion for judgment notwithstanding the verdict, or alternatively, for a new trial or remittitur. Brumfield also filed a motion for judgment notwithstanding the verdict, or alternatively, for a new trial. Guilmino's motions were denied. The trial court granted plaintiff's motion and rendered a second judgment to more accurately conform with the jury's verdict. The second judgment was basically the same as the previous judgment, except that the total amount awarded to plaintiff was reduced by $44,600.00, representing a 10% reduction for Webb's fault applied to the award for general and special damages only. The judgment further assessed all costs to Guilmino. From this judgment, Guilmino appeals, asserting the following assignments of error:

1. The jury award for general damages was manifestly erroneous.
2. The jury award for future medical expenses was manifestly erroneous.
3. The jury award for impairment of future earning capacity was manifestly erroneous.
4. The jury award for exemplary damages was manifestly erroneous; alternatively, the amount of the award was manifestly erroneous.
5. The court erred in allowing the jury to hear evidence of Guilmino's convictions of driving while intoxicated, vehicular negligent injuring and driving left of center.
6. The trial court erred in allowing the testimony of plaintiff's family members relative to his condition at the hospital subsequent to the accident and his physical limitations thereafter.
7. The court erred in not applying the 10% reduction, due to the negligence of Webb, to plaintiff's award for exemplary damages.

GENERAL DAMAGES

(Assignment of Error No. 1)

On appeal, defendant contends that the jury's award of $360,000.00 in general damages was an abuse of discretion and should be reduced to the highest appropriate amount. We disagree.

The role of an appellate court in reviewing general damage awards 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. Each case is different, and the adequacy or inadequacy 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, 1260 (La.1993), cert denied, ___ U.S. ___, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the "much discretion" of the trier of fact. Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion. Youn, 623 So.2d at 1260. The discretion vested in the trier of fact is great, and even vast, so that an appellate court should rarely disturb an award of general damages. Youn, 623 So.2d at 1261.

In this case, plaintiff sustained multiple and severe injuries as a result of the automobile collision. Dr. Mark J. Hontas, plaintiff's treating physician and an expert in the field of orthopedic surgery, testified regarding the injuries sustained by plaintiff. Dr. Hontas testified that he first attended plaintiff in the emergency room at St. Tammany Parish Hospital, immediately following the accident, for the apparent orthopedic injuries plaintiff had sustained in the trauma of the accident. Upon arrival at the emergency room, plaintiff had been treated initially by emergency room general surgeons for a pneumothorax (or punctured lung) and low blood pressure. After the application of *908 "mass trousers" to force blood into the central part of plaintiff's body, both of these conditions had been stabilized before Dr. Hontas' consultation.

From his initial examination and review of x-rays, Dr.

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Bluebook (online)
633 So. 2d 903, 1994 WL 86199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brumfield-v-guilmino-lactapp-1994.