Burrell v. Williams

938 So. 2d 694, 2006 WL 1575991
CourtLouisiana Court of Appeal
DecidedJune 9, 2006
Docket2005-CA-1625
StatusPublished
Cited by11 cases

This text of 938 So. 2d 694 (Burrell v. Williams) 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
Burrell v. Williams, 938 So. 2d 694, 2006 WL 1575991 (La. Ct. App. 2006).

Opinion

938 So.2d 694 (2006)

Alvin BURRELL and Sandra Burrell, Husband and Wife
v.
Robert WILLIAMS, Alan Raduechel and Northland Insurance Company.

No. 2005-CA-1625.

Court of Appeal of Louisiana, First Circuit.

June 9, 2006.

*696 Thomas L. Mahfouz, Morgan City, Counsel for Plaintiff/Appellant.

Morgan J. Wells, Jr., Lee M. Peacocke, Metairie, Counsel for Defendant/Appellee.

Panel composed of Ad Hoc Judges THOMAS F. DALEY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.

WALTER J. ROTHSCHILD, Judge, Ad Hoc.

In this personal injury case, plaintiffs, Alvin and Sandra Burrell, appeal the amount of damages awarded to them by the trial court, arguing that they are insufficient. For the reasons which follow, we amend in part and affirm as amended.

FACTS AND PROCEDURAL HISTORY

This case arises from a motor vehicle accident that occurred on July 29, 2002. Alvin Burrell was operating a 1984 Pontiac 6000 in the eastbound left lane of U.S. Highway 90 in St. Mary Parish. Robert Williams was operating a 1993 Peterbilt tractor, owned by Alan Raduechel, in the eastbound right lane of U.S. Highway 90. When Mr. Williams attempted to move into the left lane to pass a vehicle in front of him, he struck Mr. Burrell's vehicle, forcing it into the median. Mr. Burrell was taken to the emergency room at Franklin Foundation Hospital, where he complained of neck and shoulder pain.

*697 The day after the accident, July 30, 2002, Mr. Burrell saw his family physician, Dr. Bourgeois, who diagnosed him with a cervical strain, low back strain, and a contusion to the ribs. Dr. Bourgeois told him to avoid lifting or straining and not to return to work as a crane operator at that time. He also gave him muscle relaxers and anti-inflammatory medication. Mr. Burrell saw him again on August 5, 2002, and Dr. Bourgeois recommended that he begin physical therapy. He began attending physical therapy at Superior Rehab on August 12, 2002. At trial, Mr. Burrell's physical therapist, Jonathan Marino, testified that his low back pain had dramatically decreased by August 21, 2002, and his cervical pain had decreased by this time as well. After numerous therapy sessions, Mr. Marino discharged him on October 10, 2002.[1]

Mr. Burrell continued to see Dr. Bourgeois during the time period that he went to physical therapy. Dr. Bourgeois testified that at his September 10, 2002 visit, Mr. Burrell still had neck pain, but his back was feeling much better. At his October 15, 2002 visit, Mr. Burrell indicated that his neck was still hurting "on and off" but his back was essentially normal. At the October 23, 2002 visit, Dr. Bourgeois noted that Mr. Burrell still had some tenderness at the base of his neck, but he released him to go back to work on October 28, 2002. After conducting an examination and finding the results to be normal, Dr. Bourgeois discharged Mr. Burrell from his care on January 10, 2003.

Mr. Burrell returned to see Dr. Bourgeois on July 11, 2003, complaining of neck pain and a burning sensation in his shoulders. At trial, Dr. Bourgeois opined that Mr. Burrell's pain at that time was probably related to the accident, but it was undoubtedly aggravated by some mechanism or maneuver. Mr. Burrell saw Dr. Bourgeois again on August 8, 2003 complaining of neck and back pain. Dr. Bourgeois ordered an MRI and arranged for an orthopedic consult due to the duration of Mr. Burrell's symptoms. The MRI revealed degenerative disc disease, which Dr. Bourgeois opined was a pre-existing condition that was not caused by the July 29, 2002 accident and that was aggravated by some maneuver in August 2003.

On June 18, 2003, Mr. Burrell and his wife, Sandra Burrell, filed a petition for damages against Mr. Williams, as driver of the tractor, Mr. Raduechel, as Mr. Williams' employer and owner of the tractor, and Northland Insurance Company, as the liability insurer of Mr. Raduechel for the use and operation of the tractor.[2] Trial of this matter was held on August 18, 2004, and the trial judge took the matter under advisement. On October 18, 2004, the trial judge issued Reasons for Judgment, and on October 25, 2004, he issued First Amended Reasons for Judgment. The trial judge found that Mr. Williams was solely at fault for the accident, and plaintiffs were awarded $4,500 for Mr. Burrell's past medical expenses, $10,000 for general damages, $6,500 for lost wages, and $1,500 for Mrs. Burrell's loss of consortium, for a total award of $22,500. A judgment setting forth this award was signed on November 12, 2004. It is from this judgment that plaintiffs appeal.

*698 DISCUSSION

On appeal, plaintiffs argue that the trial judge erred in awarding only $21,000 for Mr. Burrell's damages and lost wages and only $1,500 for Mrs. Burrell's loss of consortium damages. They assert that the trial judge should have awarded $7,486.24 in medical expenses, instead of $4,500, and $14,567.07 in lost wages, instead of $6,500. They further argue that the general damages award for Mr. Burrell's pain and suffering should have been $50,000,[3] instead of $10,000, and that Mrs. Burrell's loss of consortium award should have been $5,000, instead of $1,500.

General Damages

Plaintiffs were awarded $10,000 in general damages for Mr. Burrell's pain and suffering resulting from the July 29, 2002 accident. Plaintiffs argue that Mr. Burrell was treated for neck and back pain for 13 months and that $10,000 is insufficient for injuries of this duration. Defendants respond that Mr. Burrell's injuries were basically resolved within two months of the accident and that the occasional pain he experienced with strenuous activity was consistent with his pre-existing degenerative conditions. Defendants contend that the $10,000 general damage award for Mr. Burrell's pain and suffering was not an abuse of discretion and should be affirmed.

In his amended reasons for judgment, the trial judge indicated that Mr. Burrell experienced physical pain and suffering from August 8, 2002 to January 10, 2003, which was approximately five months, and returned to the doctor in August 2003. He stated that he believed $10,000 was sufficient for pain and suffering of this duration.

General damages are those which are inherently speculative in nature and cannot be fixed with mathematical certainty, including pain and suffering. Wainwright v. Fontenot 00-492 (La.10/17/00), 774 So.2d 70, 74. A trial judge's assessment of the appropriate amount of damages is a determination of fact that is entitled to great deference on review. Id. The primary factors to be considered in assessing quantum for a general damage award are the severity and duration of the injured party's pain and suffering. Fleniken v. Entergy Corp., 00-1824 (La.App. 1 Cir. 2/16/01), 780 So.2d 1175, 1194, writs denied, 01-1268, 01-1305, 01-1317 (La.6/15/01), 793 So.2d 1250-1254. Absent a determination that the trial judge abused his discretion in the award of general damages, a reviewing court should not disturb a trial judge's award. Wright v. General Aviation Co., 04-772 (La.App. 5 Cir. 11/30/04), 889 So.2d 1115, 1119.

The trial judge's finding that Mr. Burrell experienced pain and suffering for approximately five months is reasonable. Dr. Bourgeois indicated that Mr. Burrell's physical examination was normal in January 10, 2003, so he discharged him from treatment. It was not until six months later, July 2003, that Mr. Burrell returned to Dr. Bourgeois with complaints of neck or back pain. Based on Dr. Bourgeois and Mr.

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Bluebook (online)
938 So. 2d 694, 2006 WL 1575991, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burrell-v-williams-lactapp-2006.