Burleigh v. State Farm Ins.

469 So. 2d 270, 1985 La. App. LEXIS 9172
CourtLouisiana Court of Appeal
DecidedMay 15, 1985
Docket84-471
StatusPublished
Cited by10 cases

This text of 469 So. 2d 270 (Burleigh v. State Farm Ins.) 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
Burleigh v. State Farm Ins., 469 So. 2d 270, 1985 La. App. LEXIS 9172 (La. Ct. App. 1985).

Opinion

469 So.2d 270 (1985)

Willie BURLEIGH, et ux, Plaintiffs-Appellants,
v.
STATE FARM INSURANCE, et al., Defendant-Appellee.

No. 84-471.

Court of Appeal of Louisiana, Third Circuit.

May 15, 1985.

*272 David L. Carriere, Opelousas, for plaintiffs-appellants.

William J. Ziegler, Jr., and David Kaufman, Allen, Gooch, Bourgeois, Breaux & Robison, P.C., Frank A. Flynn, Lafayette, for defendant-appellee.

Before STOKER, LABORDE and KING, JJ.

STOKER, Judge.

Plaintiffs, Willie and Emmaline Burleigh, bring this action for damages for injuries arising out of a rear-end collision that occurred on June 3, 1981. The accident occurred when a piece of air-conditioning duct fell out of the back of a vehicle owned and operated by Joseph C. Stevens and onto plaintiffs' vehicle, which was then struck from the rear by a vehicle driven by Beulah M. Stanbury and owned by James R. Mire. Defendants in this matter include Continental Insurance Company, Stevens' insurer, and State Farm Mutual Automobile Insurance Company, Mire's insurer. On trial of the matter eight months after the accident, a jury found the plaintiffs' whiplash-type injuries were caused by the joint negligence of Mire and Stanbury and awarded Willie Burleigh $5,000 and Emmaline Burleigh $7,000.

On February 22, 1982, the same day that judgment on the jury verdict was signed, plaintiffs filed a motion for new trial under LSA-C.C.P. art. 1972(1), contending the awards were inadequate. The motion for new trial was heard on March 29, 1982, and taken under advisement. On July 2, 1982, the trial court issued written reasons wherein he stated he believed the awards were inadequate, denied the new trial and directed defendants to prepare a judgment denying the new trial. Defendants did not prepare a judgment denying the new trial. In this posture the matter came to this Court on appeal. We dismissed this appeal as untimely filed as found at 453 So.2d 321. Without giving reasons for its action the Louisiana Supreme Court granted a writ application and ordered reinstatement of the appeal. 458 So.2d 931 (La.1983). We have now considered the appeal and we remand this case to the trial court for a decision consistent with the expressions in the opinion which follows.

The sole questions considered here are whether or not the trial court erred as a matter of law in denying plaintiffs' motion for new trial under LSA-C.C.P. art. 1972(1) or in failing to avail itself of the additur procedure authorized by LSA-C.C.P. art. 1814 (formerly 1813). On February 22, 1982, plaintiffs timely filed a motion for new trial under C.C.P. 1972(1), contending the awards made by the jury were so low as to be contrary to the law and evidence. The motion was heard, taken under advisement and on July 2, 1982, the trial court issued written reasons in which he stated as follows:

"A Jury Trial was held in this case, a tort case, and the Plaintiff husband was awarded $5,000.00 and the Plaintiff Wife was awarded $7,000.00.
"At one time Judge Tate, in attempting to standardize whiplash awards, set up a scale, which set a certain amount for a minor whiplash, a moderate whiplash, and a servere [sic] whiplash. This didn't last any appreciable period of time, because of inflation, because of the variations in individual cases and because of the really subjective evaluation of such damages by the Court and/or the Jury.
"In this case, the undersigned would have awarded more damages, because the injury occurred on June 3, 1981, and at trial on February 2, 1982 credible complaints of pain were still present.
"However, the Court's alternatives are simply a New Trial, or an additur. In *273 either event, the result would be the same: a new trial. Because if the Defendant didn't accept the additur, a new trial would ensue.
"However, what is to be gained by a New Trial at District Court level, with no new evidence to present; or, at least no new evidence not available at the recently held trial? The next Jury may make the same award.
"In a previous situation similar to this,— perhaps not on the `damages' question,— this Court felt relief, if any was due, should be at Appellate level, as no new evidence was available.
"The Court of Appeals agreed with this and even found Jurisprudence pointing out that this was the best approach. They then reviewed and changed the verdict. Until the District Court is given the power, which is now being proposed, to give Judgment notwithstanding the Verdict, the proper procedure is to have the Appellate Court review this case on the facts, and increase the award if same is warranted.
"The Motion for a New Trial is denied.
"Counsel for the Defendant will prepare the proper Judgment, mail a copy to opposing counsel for approval as to form, in writing, and present the Judgment for signature."

Subsequent to the issuance of the reasons quoted above, motions for reargument and a partial new trial under C.C.P. art. 1972(2) and an Exception of No Cause of Action were filed, taken under advisement, and the trial court again issued written reasons denying this second round of pleadings, as follows, in pertinent part:

"On June 3, 1981, Mr. Burleigh and his wife were `rear-ended'. He went to the hospital that day and a lady doctor gave him medicine, after x-raying him.
"He then saw Dr. Mayer, an Orthopedist, on June 8, 1981, with complaints of pain to his neck, and while wearing a neck brace. He was told to discontinue the neck brace. Dr. Mayer found twenty-five (25%) percent restriction of the neck, and the x-rays were essentially negative. The doctor thought Mr. Burleigh had a soft tissue strain of the neck (no disc, etc.). He recommended heat. Dr. Mayer felt Mr. Burleigh would be sore several weeks or several months, (at most a year or two), and gave him medicine. Dr. Mayer felt there was soft tissue injury.
"Dr. Mayer saw him again on July 13, 1981, at which time he was complaining of neck pain and headaches. He had full motion of his neck. He was told to continue moist heat and told to perform intermittant [sic] traction at home.
"The doctor saw him again on December 22, 1981. He was not on medicine, and was discharged. The doctor told him to check back if there were any further developments, as there was nothing else to do. He was still having some problems. The doctor thought he would recover after a time, with progressive minimizing of pain.
"Mrs. Burleigh had about the same history as Mr. Burleigh. They both worked at the Drive-In Movie. He is 49 (January, 1982). She is 54 (January, 1982). Both complain of continuing pain as of trial date of February 2, 1982.
"Medical and wage loss for both were minimal, and neither saw another doctor after Dr. Mayer.
"The Jury gave him $5,000.00 and the wife $7,000.00.
"On a scale of mild, moderate and severe, it is apparent these people suffered moderate whiplash injuries, at middle age.
"While the evaluation of these injuries is somewhat subjective, the Court felt the awards were low, as previously stated in its Reasons of July 2, 1982.
"Like the Jury, the Court was more impressed with the wife than the husband. It felt the award to the husband and wife should have been double the Jury award.

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Bluebook (online)
469 So. 2d 270, 1985 La. App. LEXIS 9172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burleigh-v-state-farm-ins-lactapp-1985.