Clouatre v. Liberty Mutual Insurance Co.

557 So. 2d 696, 1989 La. App. LEXIS 2654
CourtLouisiana Court of Appeal
DecidedDecember 13, 1989
DocketNos. 89-CA-453 to 89-CA-455
StatusPublished
Cited by3 cases

This text of 557 So. 2d 696 (Clouatre v. Liberty Mutual Insurance 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
Clouatre v. Liberty Mutual Insurance Co., 557 So. 2d 696, 1989 La. App. LEXIS 2654 (La. Ct. App. 1989).

Opinions

GRISBAUM, Judge.

This is a personal injury matter in which the plaintiff was awarded $384,487.63 in damages for injuries sustained as the result of an on-the-job automobile accident. The trial took place before Judge Lionel R. Collins, who died before rendering judgment. Accordingly, pursuant to La.R.S. 13:4209, along with joint stipulations of all parties, it was agreed that the matter be transferred to Division F for a decision. Liberty Mutual Insurance Company, as the uninsured motorist insurer for Brown & Browning, plaintiffs employer, now appeals. We set aside in part, amend in part, and affirm.in part.

ISSUES

We are called upon to determine a number of critical issues, to-wit:

(1) Whether the Arceneaux test1 should be our standard of review in viewing the findings of fact and conclusions of the trial court when the trial judge rendering judgment was not the presiding judge at trial;

(2) Whether the trial court erred in its finding that the plaintiff carried his burden of proof regarding causal connexity between his injuries and the on-the-job automobile accident;

(3) Whether the trial court erred in awarding damages for loss of future wages and earning capacity;

(4) Whether the trial court erred in awarding $200,000 for past and future pain and suffering; and

(5) Whether the trial court erred in awarding $20,000 to plaintiffs wife for loss of consortium.

FACTS

On December 3, 1985, plaintiff, Ricky J. Clouatre, was involved in an automobile accident in the course and scope of his employment with Brown & Browning. While stopped at a red light, the van in which he was a passenger was struck from the rear by a truck. He complained of [697]*697neck and back pain and was transported by ambulance to West Jefferson Hospital where he was treated and released. X-rays revealed a grade one spondylolisthesis, a congenital and often degenerative spinal defect. Clouatre was involved in a second accident on the way home from the hospital but did not require further medical treatment.

Plaintiff was referred to Dr. Arthur Kleinschmidt, an orthopedic specialist, who, after examination, found no objective sign of injury other than the grade one spondy-lolisthesis and subsequently released him to return to work in March 1986. In August of that year, plaintiff was fired for leaving the job without permission. He then secured employment with U-Haul/Worldwide Van Lines, but was terminated two weeks later when a reference check revealed his record with Brown & Browning. He then applied for a job at Avondale Shipyards, but he was turned down when his preemployment X-ray revealed the grade one spondylolisthesis.

On October 28, 1986, he returned to Dr. Kleinschmidt, complaining of alleged recurrent back pain beginning one week prior to this visit; on December 8, 1986, plaintiff sought treatment from Dr. John Schumacher, a neurosurgeon, who recommended hospitalization for diagnostic testing. A cervical myelogram, C-T scan, and EMG nerve conduction studies were performed and all failed to reveal any objective findings other than the grade one spondylolisthesis. Dr. Schumacher recommended physical therapy and vocational rehabilitation. On August 10,1987, Dr. Schumacher assigned plaintiff a 15 percent Hollman physical impairment rating due to his grade one spondylolisthe-sis and released plaintiff from his care.

ANALYSIS — ISSUE ONE

Our standard for review of fact was succinctly set forth by the Louisiana Supreme Court in Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973), concluding:

When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.

This standard was subsequently clarified by the supreme court in Arceneaux v. Domingue, supra, at 1333 as follows:

As an aid to the exercise of the appellate function of review of facts in civil cases, we attempted to explain, in Canter v. Koehring, supra, without great detail, the appropriate standard. We said that “even though the appellate court may feel that its own evaluations and inferences are as reasonable,” it should not disturb reasonable findings of the trial court when there is conflict in the testimony. We prefaced this observation: “When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error.” 283 So.2d 716, 724. (Emphasis added).
We did not foresee that this explanátion would be misunderstood to mean that: “There is no manifest error when the evidence before the trier of fact furnishes a reasonable basis for its finding.” We said the appellate court should not disturb this factual finding in the absence of manifest error. The difference is important. “Manifestly erroneous,” in its simplest terms, means “clearly wrong.” We said, then, that the appel[698]*698late court should not disturb such a finding of fact unless it is clearly wrong. Therefore, the appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong (manifestly erroneous).

(Emphasis in the original.)

Of recent vintage, in Virgil v. Am. Guarantee and Liability Ins. Co., 507 So.2d 825 (La.1987), the Louisiana Supreme Court held that the manifest error standard of review applied, even though the evidence before the trier of fact consisted solely of written reports, records, and depositions. The court went on to note that “The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.” Id. at 826 (emphasis in the original and emphasis supplied). We further note Justice Dennis’ reasoning in his concurrence wherein he states, “the trial judge’s decision is always entitled to at least some deference by a reviewing court. Even a deposition may be susceptible to more than one reasonable reading. If the trial judge’s interpretation is reasonable[,] it should be respected.” Id. at 826.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Caubarreaux v. EI Dupont De Nemours
714 So. 2d 67 (Louisiana Court of Appeal, 1998)
Iorio v. Grossie
663 So. 2d 366 (Louisiana Court of Appeal, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
557 So. 2d 696, 1989 La. App. LEXIS 2654, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clouatre-v-liberty-mutual-insurance-co-lactapp-1989.