Cormier v. Republic Insurance Co.

118 So. 3d 16, 11 La.App. 3 Cir. 632, 2012 La. App. LEXIS 33, 2012 WL 147903
CourtLouisiana Court of Appeal
DecidedJanuary 18, 2012
DocketNo. 11-632
StatusPublished
Cited by4 cases

This text of 118 So. 3d 16 (Cormier v. Republic 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
Cormier v. Republic Insurance Co., 118 So. 3d 16, 11 La.App. 3 Cir. 632, 2012 La. App. LEXIS 33, 2012 WL 147903 (La. Ct. App. 2012).

Opinions

SAUNDERS, Judge.

|,The plaintiff sought damages stemming from an automobile accident for which the defendant stipulated liability. The plaintiff sought damages from an automobile accident for which defendant stipulated fault. A jury determined damages and awarded medical expenses, loss of past wages, and damages for pain and suffering. The plaintiff appeals, seeking awards for disability and loss of enjoyment of life and also requesting an increase in pain and suffering damages. For the following reasons, we affirm in part, reverse in part, and render.

Factual and Procedural Background

Constance Cormier filed this personal injury matter following an August 26, 2008 automobile accident. At the time of the accident, Ms. Cormier was stopped behind a refrigerated truck when the truck shifted into reverse, striking the front of Ms. Cor-mier’s vehicle. Several hours later, Ms. Cormier reported to the emergency room. The emergency room records reveal complaints of pain to the left neck, shoulder, and upper arm areas. She was provided pain medication at that time.

Ms. Cormier initially pursued chiropractic treatment for her complaints and, ultimately, began treatment with Dr. Clark Gunderson, an orthopedic surgeon. Dr. Gunderson’s records reveal that Ms. Cor-mier complained of left neck, shoulder, and knee pain, as well as lower back pain. Dr. Gunderson initially diagnosed Ms. Cormier as having a cervical and lumbar straining injury. He prescribed physical therapy to address the symptoms. Later, however, diagnostic testing ordered by Dr. Gunder-son revealed a disc protrusion at the C5-6 level and narrowing at the C6-7 level. While some of Ms. Cormier’s complaints improved during her early treatment, she continued to report headaches, neck, and arm pain. After a steroid injection did not resolve Ms. Cormier’s pain, Dr. Gunderson performed a Rdiscectomy and fusion at the C5-6 and C6-7 levels in July 2009. Thereafter, Ms. Cormier’s complaints of pain improved. However, she continues to experience pain and weakness.

Ms. Cormier filed this matter, seeking damages related to the accident. She named the driver of the refrigerated truck as a defendant, as well as Lamm Food Service, LLC, and its insurer, Republic Insurance Company. The matter proceeded to a jury trial, with the defendants stipulating that the defendant driver was at fault in the accident when he stepped on the accelerator after the truck was knocked into reverse. They also stipulated that Lamm Food was insured by Republic at the time of the accident.

After the remaining issues were submitted to the jury, primarily the extent of Ms. Cormier’s injuries, the jury determined that the defendants’ actions were a legal cause of Ms. Cormier’s injuries. It awarded Ms. Cormier $77,781.10 in past medical expenses and $13,985.40 in past income lost. As for general damages, the jury awarded $25,000.00 for “past mental and physical pain and suffering, discomfort, anxiety, distress, disfigurement, and inconvenience,” and $35,000.00 for “future mental and physical pain and suffering, discomfort, anxiety, distress, disfigurement, and inconvenience.” The jury denied awards for disability and loss of enjoyment and quality of life.

Ms. Cormier appealed the jury’s award, questioning the quantum of the awards for past and future pain and suffering. She also asserts that the jury erred in failing to make awards for disability and loss of enjoyment and quality of life.

Discussion

Past and Future Pain and Suffering

We first address Ms. Cormier’s contention that the $25,000.00 awarded for [19]*19past pain and suffering and the $35,000.00 awarded for future pain and suffering 13was inadequate. She argues that this collective $60,000.00 award is well below what was required by the record in light of the jury’s obvious acceptance of the causation between the accident and her injuries. She instead suggests that reference to other cases merits a significant increase in the damages awarded in this area.

Louisiana Civil Code Article 2324.1 provides that: “In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.” The supreme court has described this discretion as “vast” and “such that an appellate court should rarely disturb an award.” Howard v. Union Carbide Corp., 09-2750, p. 5 (La.10/19/10), 50 So.3d 1251, 1255-56 (citing Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993)). Thus, in reviewing an award of general damages, an appellate court reviews the exercise of discretion by the trier of fact rather than determining what it considers an appropriate award. Id.

Only after a determination that the trier of fact abused this vast discretion does an appellate court reference prior awards. Id. (citing Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976)). Even then, it makes such reference only for the purpose of determining the highest or lowest point which is reasonably within the trier of fact’s discretion.

After review of this record, we find no abuse of discretion in the jury’s collective award of $60,000.00 for pain and suffering. This figure acknowledges that Ms. Cormier sustained injuries of such a nature as to warrant a two-level cervical fusion almost one year following the accident. During that time, Ms. Cormier was unable to work as a cashier, as revealed in the loss of wages award. However, reference to the medical records, both before and after the surgery, indicate that, while Ms. Cormier suffered from headaches and pain generally in the |4neck, shoulder and arms, the pain was not so great as to require a greater award. Instead, Ms. Cormier demonstrated improvement throughout and, generally, demonstrated a preference to not take the pain medication prescribed for her condition. Dr. Gunderson’s office notes for Ms. Cormier’s post-surgery office visits show improved complaints, although obviously not an elimination of all complaints. When questioned at trial regarding the effectiveness of the surgery, Dr. Gunderson explained that “[tjhis lady did very, very well.” He stated that, according to his discharge summary, she reported “significantly reduced arm pain.” When describing Ms. Cormier’s post-surgical visits, he explained that within one week, her wound had healed and that she had no arm pain and “had relief of her headaches.” He noted that this was the first time he had seen Ms. Cormier smile. When she returned in mid-August, Ms. Cormier told him that “she had no headaches, she was much better than prior to her surgery. She had normal strength in her arms. Again she was smiling.” Furthermore,

X-rays showed progression of her fusion, and she came back one more time on 9-30-09. She was three months post-operative. Only occasional neck pain. Her wound was healed. She had good strength. Her fusion was solid and I told her she could go back to full duty, and actually I saw her one more time on 12-11-09 for a follow-up x-ray and her fusion was solid and I discharged her.

Given this steady trend of improvement and the evidence regarding Ms. Cormier’s positive result from surgery, we find no abuse of the jury’s discretion in assessing $60,000.00 for both past and future pain [20]*20and suffering. Because we find no abuse of the jury’s discretion, the standard of review does not permit reference to prior awards for similar injuries. See Coco, 341 So.2d 332.

This assignment of error lacks merit.

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

Related

Cite This Page — Counsel Stack

Bluebook (online)
118 So. 3d 16, 11 La.App. 3 Cir. 632, 2012 La. App. LEXIS 33, 2012 WL 147903, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cormier-v-republic-insurance-co-lactapp-2012.