Edie Gordey and Own Gordey v. James E. Johnson

• Court: Louisiana Court of Appeal
• Decided: December 8, 2004
• Docket: CA-0004-1036
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 04-1036

EDIE GORDEY AND OWEN GORDEY

VERSUS

JAMES E. JOHNSON, ET AL.

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APPEAL FROM THE PINEVILLE CITY COURT PARISH OF RAPIDES, NO. 3-0053 HONORABLE JESSE PHILLIP TERRELL JR., CITY COURT JUDGE

JOHN D. SAUNDERS JUDGE

Court composed of John D. Saunders, Marc T. Amy, and Billy H. Ezell, Judges.

AFFIRMED.

David A. Hughes Hughes & LaFleur P. O. Box 1831 Alexandria, LA 71309-1831 (318) 443-4090 Counsel for: Defendant/Appellant State Farm Mutual Automobile Insurance Company James E. Johnson

David Alan Johnson Attorney at Law P. O. Box 4237 Pineville, LA 71361-4237 (318) 473-2523 Counsel for: Plaintiffs/Appellees Edie Gordey Owen Gordey SAUNDERS, J.

The issues on appeal to this court concern the quantum of damages awarded

for an automobile accident. Plaintiffs, Edie and Owen Gordey, were stopped on an

exit ramp preparing to merge onto U.S. Highway 165 when they were struck from

behind by a vehicle driven by James Johnson. Defendant, State Farm Mutual

Insurance Company (hereinafter referred to as “State Farm”) contends the awards for

general damages and loss of consortium were excessive, while the award of future

medical expenses was not supported by the evidence. We affirm in all respects.

FACTS AND PROCEDURAL HISTORY

On February 25, 2002, plaintiffs were waiting to merge onto U.S. Highway 165

when James Johnson drove his vehicle into the rear of their automobile. Liability was

stipulated and a bench trial was held on February 6, 2004. Also, on that date, the

claims against James Johnson were dismissed. Thereafter, on April 30, 2004,

judgment in favor of plaintiffs was rendered awarding $20,000.00 in general damages

to Edie Gordey, $10,332.50 in future medical expenses to Edie Gordey, and

$2,500.00 for loss of consortium to Owen Gordey. State Farm then filed this appeal.

ASSIGNMENTS OF ERROR

1) The trial court erred in awarding general damages to Edie Gordey in the amount of $20,000.000.

2) The trial court erred in awarding future medical expenses to Edie Gordey.

3) The trial court erred in awarding loss of consortium damages to Owen Gordey in the amount of $2,500.00.

LAW AND ANALYSIS

The standard of review for findings of the trial court has been clearly

established in this circuit. A court of appeal may not set aside a judge’s factual finding unless that finding was manifestly erroneous or clearly wrong. Stobart v.

State, through Dep’t Of Transp. & Dev., 617 So.2d 880 (La.1993). “Absent ‘manifest

error’ or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not

be disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111

(La.1990). “If the trial court or jury’s findings are reasonable in light of the record

reviewed in its entirety, the court of appeal may not reverse, even though convinced

that had it been sitting as the trier of fact, it would have weighed the evidence

differently.” Id. at 1112. Furthermore, when reviewing questions of law, appellate

courts are to determine if the trial court’s ruling was legally correct or not. Cleland

v. City of Lake Charles, 01-1463 (La.App. 3 Cir. 3/5/03), 840 So.2d 686, writ denied,

03-1380 (La. 9/19/03), 853 So.2d 645, and writ denied, 03-1385 (La. 9/19/03), 853

So.2d 644.

ASSIGNMENT OF ERROR NUMBER ONE

In this assignment, defendant argues that the award of general damages is

excessive. We do not agree. The trial judge specifically concluded that the accident

caused injury to Mrs. Gordey’s temporomandibular joint (TMJ), that this injury

aggravated a pre-existing TMJ condition so that surgery is now required, and that

medical attention was necessary. Furthermore, Mrs. Gordey testified that her TMJ

condition was asymptomatic for some time prior to the accident. This award is also

not out of line with other awards for similar injuries in this circuit. We find no abuse

of discretion in the trial judge’s award and affirm the judgment in this regard.

ASSIGNMENT OF ERROR NUMBER 2

Defendant argues that the award of future medical expenses was not supported

2 by the evidence. State Farm contends that Mrs. Gordey’s initial denial of the

recommended surgery precludes a finding that it is more probable than not that the

future medical expenses will be incurred. Defendant does concede, however, that Dr.

Robert Levy, whom the court accepted as an expert in oral and maxillofacial surgery,

did recommend surgery for Mrs. Gordey’s TMJ condition and that this surgery would

cost $10,332.50.

We initially recognize that, in order to receive an award for future medical

expenses, a plaintiff must show that it is more probable than not that the expenses will

be incurred. Clavier v. Roberts, 00-1666 (La.App. 3 Cir. 4/4/01), 783 So.2d 599, writ

denied, 01-1662 (La. 9/21/01), 797 So.2d 672. We disagree, however, with the

relevance defendant attributes to Mrs. Gordey’s initial denial of the recommended

surgery. Mrs. Gordey testified that she wanted to have the surgery but initially

declined to do so because she could not afford the procedure. Given this testimony,

we are unwilling to extrapolate the initial refusal into a finding that plaintiff has failed

to show that it is more probable than not that the future medical expenses will be

incurred. This court has previously given weight to such testimony when affirming

awards for future medical expenses. Veazey v. State Farm Mutual Auto Ins., 587

So.2d 5 (La.App. 3 Cir. 1991). Accordingly, we find no merit in this assignment and

affirm the trial court’s judgment in this regard.

ASSIGNMENT OF ERROR NUMBER 3

In this assignment, defendant argues that the $2500.00 award for loss of

consortium is excessive. State Farm contends that no evidence establishing a loss of

love, affection, or services was presented. Mr. Gordey did testify, however, that his

3 wife’s pain prevented her from getting out of bed and made her very difficult to get

along with. This testimony was corroborated by that of Mrs. Gordey in which she

claimed that she became very irritable and difficult to associate with because of the

pain she was experiencing. Accordingly, we find no abuse of discretion in the award

for loss of consortium. This assignment lacks merit.

CONCLUSION

We affirm the trial court’s awards of general damages and future medical

expenses to Mrs. Gordey and loss of consortium to Mr. Gordey. All costs of this

appeal are assessed against defendant.