Durham v. CNA Insurance Companies

544 So. 2d 679, 1989 La. App. LEXIS 1051, 1989 WL 54987
CourtLouisiana Court of Appeal
DecidedMay 24, 1989
DocketNo. 88-231
StatusPublished
Cited by3 cases

This text of 544 So. 2d 679 (Durham v. CNA Insurance Companies) 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
Durham v. CNA Insurance Companies, 544 So. 2d 679, 1989 La. App. LEXIS 1051, 1989 WL 54987 (La. Ct. App. 1989).

Opinion

YELVERTON, Judge.

Clarence L. “Nate” Durham sued Gros Jean Roofing and Sheet Metal Company, and Transportation Insurance Company, the latter’s insurer, for personal injury damages received in an automobile accident in Natchitoches, Louisiana, on July 18, 1984. As Durham was driving down a street, a dump truck owned by Gros Jean and driven by its employee, Joe Webb, Jr., entered the street from a private drive and ran into the right side of Durham’s van. The case was tried by a jury. The presiding judge directed a verdict in plaintiff’s favor on the issue of liability, and the jury decided the amount of damages. The verdict sheet returned by the jury was filled out like this:

(a) Pain and suffering.$10,000.00
(b) Mental anguish.$10,000.00
(c) Embarrassment and humiliation .$ -0-
(d) Permanent injuries .$ -0-
(e) Loss of earnings and earning capacity (past, present & future).$ 5,000.00

The parties had stipulated that Durham had suffered property damages of $2,566 and medical expenses, past, present and future, of $7,500. Adding together the stipulated amounts and the jury’s award, the trial judge rendered judgment in favor of plaintiff for $35,066.

The issue raised by the plaintiff’s appeal is that the damage award was so low, in the light of his proved injuries, that it was an abuse of discretion. We agree, and increase the general damage award from $20,000 to $50,000, which we believe is the lowest amount within the jury’s discretion that could have been awarded for the plaintiff’s unquestionable damages resulting from this accident.

Durham was a United States Customs agent. When he retired from that job he moved back to his original home in Winn-field to enjoy the outdoors, his primary interest in life being hunting and fishing. He also started a second career as an outdoor writer, publishing in a local periodical a regular column styled “Nate Durham Outdoors”. His writing career was not a financial success, as the four income tax returns preceding the year of his accident attested; during those years his hunting and fishing trips for writing material cost him more than the income the stories produced, and during those years he regularly reported net losses to the IRS. About four months before his accident he began working for an automobile dealer selling cars as a means to supplement his retirement income. He made about $2,000 selling cars during those four months.

The jury awarded Durham $5,000 for his economic loss. We affirm that award. Dr. Earl Thames, an expert economist, testified that he had a salary loss from the accident date until the date of trial in the amount of $73,863, and that the loss of future earning capacity calculated out to be $63,725, for a total of $137,588. Dr. Thames’ calculations were based on the assumption that he would make $20,000 a year as an automobile salesman, and that he could not be an automobile salesman any longer. This expert had not seen Durham’s income tax returns. The evidence shows, too, that although Durham started selling cars four months before his acci[681]*681dent, he took off for one month before the accident to carry out some earlier plans concerning one of his hobbies, and not long after his accident the dealership that he was working for went out of business. He did not testify that he had actively sought to reenter the car-selling field, and there was no testimony to indicate that he was or would be physically unable to meet the part-time demands of such a job. All factors considered, the jury could have reasonably concluded that Durham had no plans to pursue automobile salesmanship as a serious career, and that his brief excursion into that field was not reliably indicative of his earning probabilities. He had been retired for several years, and during that time had worked for only three months, and earned only $2,000. The jury could have reasonably concluded that there was an unstable factual foundation for Dr. Thames' calculations. Considering Durham’s apparent commitment to his outdoor interests we cannot regard the jury’s assessment of his economic loss at $5,000 so low as to be an abuse of discretion.

The jury concluded that a total of $20,000 would adequately compensate Durham for his pain and suffering, and mental anguish, and the jury assessed zero damages for embarrassment and humiliation, and permanent injuries.

Durham, 63, was in good health at the time of the accident. Dr. Roy A. Cook of Natchitoches was the first doctor to see him after the wreck. He put Durham in the hospital for three days with a fractured tenth left rib and considerable back pain. Although it was not discovered at that time, Durham had a fractured left kidney. Dr. Cook prescribed pain relief medication and physical therapy. Durham went back to see Dr. Cook on July 24 complaining that his back pain was worse. Dr. Cook sent him to Dr. John P. Sandifer, an orthopedist.

Dr. Sandifer saw Durham on July 25, 1984 and again on April 9,1985. It was his opinion that Durham had suffered an acute exacerbation of what he found to be a great deal of degenerative arthritis in the neck and the back. This doctor testified that on the occasion of his examinations he was not aware that there had been a fractured rib, and, like Dr. Cook, he was also unaware of the fractured kidney.

Durham testified that about a week after the accident he began to see blood in his urine. One of his children helped him get an appointment with Dr. Katherine S. Thompson of Houston, affiliated with the University of Texas Medical School. Dr. Thompson, a nephrology specialist (kidney disease), saw Durham on October 3, 1984. She said that Durham was quite worried, and understandably so because blood in the urine is always a serious problem. He was tested by an intravenous urogram which showed a fracture of the left kidney. Dr. Thompson testified that it takes a significant force or impact to fracture a kidney. However, she said that a kidney damage like this would normally heal in a couple of months by itself, and she considered the injury minor and not needing hospitalization.

Nevertheless, on that day Durham entered the Veteran’s Administration Medical Center in Houston where he stayed from October 3, 1984 until December 4, 1984. The hospital records for that admission show that the admission was primarily for paranoia. The admission summary further shows that the patient had a history of depression and paranoid ideations. The records listed two reasons for this hospitalization: (1) paranoid ideations, (2) degenerative joint disease affecting the back.

He spent another period, April 3, 1986, to April 16, 1986, in the VA Hospital in Houston for the same complaints.

At trial and on this appeal Durham complained that the accident caused an exacerbation of symptoms of a preexisting degenerative condition in his neck and back. He testified, as did other witnesses who knew him, that before this accident he was very active, hunting and fishing for days at a time, walking long distances in mountainous terrain in Colorado, lifting boats, game and equipment, and otherwise manifesting that he was in sound physical condition. He said that the arthritic condition did not bother him then. Beginning, however, after the accident and growing worse as time [682]*682went by, there was pain in his neck and back which by the time of trial had curtailed most of his activities and eliminated entirely the more strenuous ones.

Dr.

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Bluebook (online)
544 So. 2d 679, 1989 La. App. LEXIS 1051, 1989 WL 54987, Counsel Stack Legal Research, https://law.counselstack.com/opinion/durham-v-cna-insurance-companies-lactapp-1989.