Cushman v. Fireman's Fund Ins. Co.

401 So. 2d 477, 1981 La. App. LEXIS 5188
CourtLouisiana Court of Appeal
DecidedJune 8, 1981
Docket14549
StatusPublished
Cited by22 cases

This text of 401 So. 2d 477 (Cushman v. Fireman's Fund Ins. 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
Cushman v. Fireman's Fund Ins. Co., 401 So. 2d 477, 1981 La. App. LEXIS 5188 (La. Ct. App. 1981).

Opinion

401 So.2d 477 (1981)

Doris M. CUSHMAN, et vir., Plaintiff-Appellee,
v.
FIREMAN'S FUND INSURANCE COMPANY, et al., Defendant-Appellant.

No. 14549.

Court of Appeal of Louisiana, Second Circuit.

June 8, 1981.

*478 McKeithen & Burns by Don C. Burns, Columbia, for plaintiff-appellee.

Davenport, Files, Kelly & Marsh by William G. Kelly, Jr., Monroe, for defendant-appellant United Services Auto. Assoc.

Theus, Grisham, Davis & Leigh by J. Bachman Lee, Monroe, for Fireman's Fund Ins. Co., McNair and Williams.

Before MARVIN, JASPER E. JONES and FRED W. JONES, JJ.

JASPER E. JONES, Judge.

Defendant, United Services Automobile Association, appeals a judgment against it as the underinsured motorist insurer of plaintiffs Doris M. Cushman and Joe Cushman, for damages sustained by plaintiff due to serious personal injuries suffered by Doris M. Cushman in an automobile-truck collision which occurred on August 12, 1978 in the town of Columbia, Louisiana. The trial court found the accident was caused solely by the negligence of John L. Williams, who was driving a truck owned by D. W. McNair, in the course and scope of his employment for McNair. The truck was insured by Fireman's Fund Insurance Company which provided Williams and McNair with $100,000 liability coverage for the damages sustained as result of Doris Cushman's injuries as the driver of the automobile which collided with the truck. The appellant, as the underinsured motorist carrier on the Cushman vehicle, provided liability coverage for the damages sustained by plaintiffs in the amount of $300,000.

The judgment appealed awarded Doris Cushman general damages for her personal injuries in the amount of $125,000 against the two insurers, Williams, and McNair. The judgment awarded Doris Cushman for loss of income the sum of $100,000 against the two insurers. The judgment awarded to Doris and Joe Cushman the sum of $50,000 for future services of a house maid; the sum of $10,843 for past medical expenses; the sum of $10,000 for future medical expenses. These awards were against the two insurers. The insurers were cast for all *479 costs including expert witness fees for the doctors who testified for plaintiff. The judgment limited Fireman's Fund's liability to $100,000 which was the amount of the coverage. Because Williams and McNair had little means with which to respond in judgment, the appellant was awarded a judgment for only $500 against each of them on its third party demand.

Only U.S.A.A., the underinsured motorist carrier, appealed. Plaintiffs answered the appeal.

Quantum is the only issue on appeal. U.S.A.A. does not assign as error the pain and suffering award in favor of Doris Cushman in the amount of $125,000.

U.S.A.A. asserts the following errors in the judgment against it: (1) the trial court's action assessing as cost an expert witness fee in the amount of $150 for Dr. William J. Erwin, a psychiatrist, who did not testify at trial, and whose testimony was not taken by deposition, (2) the award to plaintiffs for past medical services in the amount of $10,663 which were supplied by the Veterans Administration and subrogated to it by the provisions of 42 U.S.C.A. § 2651, et seq, (3) the award of $10,000 for future medical expenses, (4) the award of $100,000 for loss of income, and (5) the award of $50,000 for future maid service.

EXPERT WITNESS FEE

The four-page detailed medical report of Dr. Erwin containing his psychiatric evaluation of Doris Cushman following his examination of her on September 12, 1979, was placed in evidence by stipulation of the litigants in lieu of his testimony.

Appellant contends that because Dr. Erwin neither testified at trial, nor was his testimony taken by deposition, that the trial court should not have fixed an expert witness fee for Dr. Erwin in the amount of $150 and assessed it as cost.

LSA-R.S. 13:3666 which authorizes the court to fix expert witness fees and assess them as cost was amended by Act No. 618 of the 1980 Legislature to authorize the court to include as cost the reasonable and necessary cost for medical reports. The amendment reads as follows:

"LSA-R.S. 13:3666: ....
. . . .
(C) In either manner provided in Subsection B, the court shall also determine and tax as costs, to be paid by the party cast in judgment, the reasonable and necessary cost of medical reports and copies of hospital records."

Considering the specific authority for including the cost of medical reports within the cost assessed against the party cast, and the broad discretion which the trial judge is given in making the determination of the amount of said cost, we find no error in the expert witness award fixed by the court for Dr. Erwin's report. See Hebert v. Diamond M Co., 385 So.2d 410 (La.App. 1st Cir. 1980), and Williams v. Harvey, 328 So.2d 901 (La. App. 4th Cir. 1976).

AWARD FOR PAST MEDICAL EXPENSES

The trial court award of incurred medical expenses included $10,663 for medical services supplied to Doris Cushman, who was a retired Air Force nurse, by the Veterans Administration. The claim for the value of these services is subrogated by statute to the United States. 42 U.S.C.A. § 2651 provides in pertinent part:

"(a) In any case in which the United States is authorized or required by law to furnish hospital, medical, surgical, or dental care and treatment (including prostheses and medical appliances) to a person who is injured or suffers a disease, after the effective date of this Act, under circumstances creating a tort liability upon some third person (other than or in addition to the United States and except employers of seamen treated under the provisions of section 249 of this title) to pay damages therefor, the United States shall have a right to recover from said third person the reasonable value of the care and treatment so furnished or to be furnished and shall, as to this right be subrogated to any right or claim that the injured or diseased person, his guardian, *480 personal representative, estate, dependents, or survivors has against such third person to the extent of the reasonable value of the care and treatment so furnished or to be furnished...."

Plaintiffs recognized in their petition that the claim for the V.A.'s supplied medical services was subrogated to the United States in Paragraph XV of their petition wherein they alleged:

"The plaintiff for the sole use and benefit of the United States of America, under the provisions of Title 42, United States Code, Sections 2651-2653, and with the express consent of the United States of America, assert a claim for the reasonable value of said past and future care and treatment."

Defendants in their answers denied the factual allegations of Paragraph XV of plaintiffs' petition and plaintiffs offered no evidence at trial to establish they were authorized to assert the claim of the United States of America for the value of the medical services which was supplied Doris Cushman by the Veterans Administration, though exhibits tending to establish the value of these services were placed into evidence by stipulation of the parties.

Plaintiffs here contend that under the provisions of LSA-R.S. 46:12 they were not required to establish the allegations quoted from Paragraph XV of their petition in order to recover the award for the medical services rendered by the V.A. This statute provides:

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401 So. 2d 477, 1981 La. App. LEXIS 5188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cushman-v-firemans-fund-ins-co-lactapp-1981.