Deshotel v. South La. Contractors, Inc.

484 So. 2d 155
CourtLouisiana Court of Appeal
DecidedFebruary 5, 1986
Docket84-1057
StatusPublished
Cited by8 cases

This text of 484 So. 2d 155 (Deshotel v. South La. Contractors, Inc.) 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
Deshotel v. South La. Contractors, Inc., 484 So. 2d 155 (La. Ct. App. 1986).

Opinion

484 So.2d 155 (1986)

Alvin J. and Jane DESHOTEL, Plaintiffs-Appellants,
v.
SOUTH LOUISIANA CONTRACTORS, INC. and Insurance Company of North America, Defendants-Appellees.

No. 84-1057.

Court of Appeal of Louisiana, Third Circuit.

February 5, 1986.
Rehearing Denied March 13, 1986.

*156 John W. Johnson of Clanton & Johnson, and Young & Burson, Terrance Hoychick, Eunice, for plaintiffs-appellants.

Onebane & Associates, Robert M. Mahony, Lafayette, for defendants-appellees.

Before STOKER, YELVERTON and KNOLL, JJ.

STOKER, Judge.

Alvin and Jane Deshotel were injured when a truck trailer struck their pickup truck from the rear at the intersection of Louisiana Highways 26 and 190 in Jefferson Davis Parish. The truck trailer was owned by South Louisiana Contractors, Inc., and was driven by its employee. The Deshotels sued South Louisiana Contractors and its insurer, Insurance Company of North America, for damages allegedly caused in the accident.

The trial court found that the accident was caused solely by the fault of South Louisiana Contractors, and awarded the plaintiffs the following sums:

                ALVIN DESHOTEL
Pain, suffering and permanent
  disability                          $80,000.00
Medical expenses                        2,012.95
Drug bills                              1,908.00
Wage loss (past and future)           125,000.00
                                     ___________
                                     $208,920.95
                JANE DESHOTEL
Pain, suffering and permanent
  disability                          $20,000.00
Medical expenses                        4,187.40
Drug bills                              1,018.20
                                      __________
                                      $25,205.60

The liability of the defendants is not contested on appeal. Plaintiffs and defendants assign as error the trial judge's damage awards. The Deshotels also argue that they should have been allowed to amend their petition at trial to increase their claim for loss of earnings from $300,000 to $500,000. The trial court only awarded $125,000. The amendment issue is an issue in this case because we find that an increase is warranted in that portion of the award beyond the $300,000 wage loss originally prayed for.

GENERAL DAMAGES

It is well settled that we may not disturb a damage award absent an abuse of discretion by the trier of fact in making the award. We find sufficient basis for the general damage awards; therefore, we affirm them.

The trial judge awarded Alvin Deshotel $80,000 for pain, suffering and permanent disability, and he awarded Mrs. Deshotel $20,000 for similar damages. In its written reasons for judgment the trial court stated the following relative to the general damages of the Deshotels:

*157 "There is no evidence proving that Mr. Deshotel had experienced or complained of any back or neck pain prior to the automobile accident on June 15, 1981. While Mrs. Deshotel suffered from a pre-existing degenerative disc disease, her condition was asymptomatic prior to the accident and symptomatic afterward. Evidence and testimony at trial given by various doctors showed that Mr. Deshotel's condition and injuries and Mrs. Deshotel's worsened condition and injuries were caused by the accident in which their car was struck by the tractor-trailer owned and operated by South Louisiana Contractors, Inc.

"The testimony and evidence supplied by the various doctors involved in this case was contradictory and conflicting particularly as to the extent of the Deshotel's [sic] injuries, permanent disability, and the ability of Mr. Deshotel to continue his former work or find another job he is physically able to perform. From this evidence it is clear that Mr. and Mrs. Deshotel have both suffered severe physical injuries to their respective backs and necks resulting in intense pain and suffering. Based upon the myelogram and discogram performed upon Mr. Deshotel, he suffers from one ruptured disc in his lower back and two bulging discs in his neck which cause him extreme pain. Mr. Deshotel worked with this pain for 1½ years and has not had surgery to attempt to alleviate this pain, so the pain must not be so severe that Mr. Deshotel cannot cope with it. Mr. Deshotel has proven by a preponderance of the evidence that he suffers from two bulging discs in the cervical area and one ruptured disc in the lumbar area caused by the accident in question and causing Mr. Deshotel to endure some pain and suffering. No doctor has recommended any surgery at this time and it is uncertain what good if any these surgical procedures would accomplish.

"Mrs. Deshotel suffered from a pre-existing degenerative condition in her neck area. After the accident, Mrs. Deshotel suffered from one bulging disc and one ruptured disc. The testimony was conflicting, but it is clear Mrs. Deshotel suffered physical injuries resulting in pain and suffering. The damages claimed by the Deshotels' [sic] for the surgical operations they may need to go through are too speculative to be compensable. There is no evidence that these operations will ever be performed or be absolutely necessary."

On the basis of the findings quoted above we cannot conclude that the trial court abused its "much discretion" in setting the general damage awards at $80,000 and $20,000. We do not necessarily agree with the trial judge's conclusions that, because Mr. Deshotel worked for one and one-half years in pain after the accident without seeking relief through surgery, the "pain must not be so severe that Mr. Deshotel cannot cope with it." Mr. Deshotel's pain appears to have grown progressively and ultimately forced him to give up his employment.

Possibly the awards may be lesser or greater, as the case may be, than what we might have awarded, nevertheless we find no basis under appellate standards of quantum review to disturb the awards.

The appellants argue that Mr. Deshotel should have been awarded damages for permanent disability as an item separate and distinct from pain and suffering. We find no requirement for a break down of general damages into separate items.

LOST WAGES

The appellants argue that the trial court's award of $125,000 for past and future wage loss is inadequate. The calculations at trial by two economists, Mr. Don Cornwell and Dr. Stuart Wood, differed sharply, due in part to Dr. Wood's consideration of disability benefits paid by Deshotel's former employer. We agree that these benefits cannot be a basis for a diminution of Deshotel's recovery under the collateral source rule. Hawthorne v. Southeastern Fidelity Ins. Co., 387 So.2d 26 (La.App.3d Cir.1980); Taft v. Gist, 293 *158 So.2d 641 (La.App.3d Cir.1974). However, as this court stated in Smith v. Lumbermen's Mut. Cas. Co., 414 So.2d 1281 (La. App.3d Cir.1982), writ denied, 417 So.2d 367 (La.1982), at page 1283, "[t]he trial judge is not bound by expert testimony but may weigh the testimony of expert witnesses in the same manner as he would any other evidence. [Citations omitted] The trial court's assessment of the weight and credibility to be given expert testimony will not be disturbed unless found to be clearly erroneous."

According to Mr. Cornwell, plaintiff's expert economist, Alvin Deshotel was 48.8 years old at the time of this accident and he had a work life expectancy of 61.9 years. Mr. Cornwell made his economic loss projection from the last day of Alvin Deshotel's employment with Western Gear Corporation, December 31, 1982. Mr.

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