Henry v. National Union Fire Ins. Co.

542 So. 2d 102, 1989 WL 35220
CourtLouisiana Court of Appeal
DecidedApril 11, 1989
DocketCA 88 0061
StatusPublished
Cited by20 cases

This text of 542 So. 2d 102 (Henry v. National Union Fire 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
Henry v. National Union Fire Ins. Co., 542 So. 2d 102, 1989 WL 35220 (La. Ct. App. 1989).

Opinion

542 So.2d 102 (1989)

Joey HENRY and Laurel Henry
v.
NATIONAL UNION FIRE INSURANCE COMPANY, Dolphin Services, Inc. and George Herpin.

No. CA 88 0061.

Court of Appeal of Louisiana, First Circuit.

April 11, 1989.
Writs Denied June 2, 1989.

*103 Julius P. Hebert, Jr., Houma, for plaintiffs and appellants, Joey and Laurel Henry.

Frederick R. Campbell, New Orleans, for defendants and appellees, National Union Fire Ins. Co., et al.

Before CARTER, LANIER and LeBLANC, JJ.

LANIER, Judge.

This is a suit for damages in tort by a husband and wife which arises out of an automobile accident. The defendants stipulated liability, and the case went to trial on quantum. The trial judge rendered judgment awarding the wife $80,396.47 in damages and awarding the husband $5,000 for loss of consortium. The husband and wife took this devolutive appeal.

FACTS

On July 8, 1986, at approximately 6:35 a.m., Laurel Henry was operating her 1985 Nissan automobile on Tunnel Boulevard in the City of Houma, Terrebonne Parish, Louisiana. While stopped for a red light at the intersection of Tunnel Boulevard and Grand Caillou Road, her vehicle was struck from the rear by a 1985 Dodge van owned by Dolphin Services, Inc. (Dolphin) and driven by George Herpin. Herpin was an employee of Dolphin and was acting in the course and scope of his employment. National Union Fire Insurance Company was the insurer of Dolphin and Herpin.

GENERAL DAMAGES

(Assignment of Error 3)

The Henrys contend that the award of $65,000 made by the trial judge to Mrs. Henry for general damages was inadequate. They argue that this court should review the record de novo and increase Mrs. Henry's award to an "appropriate amount."

The standard usually used for appellate review of a trial court's award of damages is set forth in Reck v. Stevens, 373 So.2d 498, 501 (La.1979), as follows:

Before a trial court award may be questioned as inadequate or excessive, the reviewing court must look first, not to prior awards, but to the individual circumstances of the present case. Only after analysis of the facts and circumstances peculiar to this case and this individual may a reviewing court determine that the award is excessive.
. . . .
Thus, the initial inquiry must always be directed at whether the trier court's award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact's "much discretion," La.Civ.C. art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, *104 that the award may on appellate review, for articulated reason, be considered either excessive, ... or insufficient,.... Only after such determination of abuse has been reached, is a resort to prior awards appropriate under Coco for purposes of then determining what would be an appropriate award for the present case.
In the initial determination of excessiveness or insufficiency, an examination of prior awards has a limited function—if indeed the facts and circumstances of the prior awards are closely similar to the present. The prior awards may serve as an aid in this determination only where, on an articulated basis, the present award is shown to be greatly disproportionate to past awards (not selected past awards, but the mass of them) for (truly) "similar" injuries,....
However, absent an initial determination that the trial court's very great discretion in the award of general damages has been abused under the facts of this case, the reviewing court should not disturb the trier's award. [Citations omitted.] [Footnote omitted.]

If an abuse of discretion is found, the appellate court will only lower the award to the highest (or raise the award to the lowest) point which is reasonably within the discretion afforded the court; the appellate court does not substitute its judgment for that of the trial court judge or jury in this situation. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). However, if the validity of a jury verdict or trial court judgment on quantum is interdicted by a factual or legal error, the abuse of discretion standard will not be followed, and the appellate court will not remand but will undertake an independent evaluation of the record and exercise its own discretion to fix a (de novo) quantum award, if the record is otherwise complete. Suhor v. Gusse, 388 So.2d 755 (La.1980). If the record is not complete, or if the weight of the evidence is nearly equal and a firsthand view of the witnesses is essential to a fair resolution of conflicting evidence, the case will be remanded for a new trial. Ragas v. Argonaut Southwest Insurance Co., 388 So.2d 707 (La.1980).

There is no error of fact or law in the record to interdict the trial court's general damage award. Accordingly, we must examine the record to determine whether the trial judge abused his discretion in awarding general damages. If we find an abuse of discretion, the award must be increased to the minimum amount which was reasonably within the discretion of the trial court.

Following the accident, Mrs. Henry felt pain behind her left ear. The next day, she had neck pain, a headache, tingling and numbness down her right arm, and pain between her shoulder blades. She consulted Dr. Bruce Guidry. After examining and X-raying Mrs. Henry, Dr. Guidry diagnosed her condition as a cervical strain and prescribed medication. He also ordered a CAT scan to be conducted. The CAT scan revealed a one to two millimeter bulge at the C5-C6 level of the cervical spine. On August 11, 1986, because of continuing pain, Mrs. Henry went to see Dr. Donald Judice, a neurosurgeon. After performing an examination on Mrs. Henry and reviewing the CAT scan ordered by Dr. Guidry, his diagnosis was a bulging cervical disk at the C5-C6 level, cervical radiculopathy, and a cervical strain.

Mrs. Henry testified that she still has the same complaints she had the day after the accident, plus she now has numbness in her right cheek and chin, occasional momentary loss of balance when walking, weakness in her right arm, and her headaches seem to be increasing in severity. Because of pain, she can no longer go grocery shopping by herself and she cannot do household duties such as carrying the laundry basket and vacuuming. She is unable to jog, dance, swim, bowl, and do aerobics. Mrs. Henry stated that her injury has compromised her relationship with her husband and has affected her career as a nurse. She cannot perform certain nursing duties and will never be able to become a head nurse or supervisor. Mrs. Henry further testified that since the accident she is very depressed.

*105 Dr. Judice testified that he first saw Mrs. Henry on August 11, 1986, and has seen her approximately eight times since. He is currently treating her on an "as needed" basis for an indefinite period of time. After her initial visit, he treated Mrs. Henry conservatively with advice about neck care, neck exercises, repeated examinations, and medication only when absolutely necessary. He also recommended that she undergo physical therapy. He placed Mrs. Henry on the following restrictions: no working in the operating room or in areas where she had to physically manhandle patients, no lifting anything over 25 pounds, and no standing on her feet for eight hours straight without taking a break. On October 24, 1986, Dr. Judice ordered an MRI scan performed on Mrs. Henry. Dr.

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

Related

Woods v. Hall
194 So. 3d 689 (Louisiana Court of Appeal, 2016)
Fecke v. Board of Supervisors
180 So. 3d 326 (Louisiana Court of Appeal, 2015)
Clement v. Carbon
153 So. 3d 460 (Louisiana Court of Appeal, 2014)
Hanson v. Benelli
719 So. 2d 627 (Louisiana Court of Appeal, 1998)
Morris v. State, Dept. of Transp.
664 So. 2d 1192 (Louisiana Court of Appeal, 1995)
Boudreaux v. Blank
664 So. 2d 705 (Louisiana Court of Appeal, 1995)
Emoakemeh v. Southern University
654 So. 2d 474 (Louisiana Court of Appeal, 1995)
Babineaux v. Tollie Freightways, Inc.
628 So. 2d 1327 (Louisiana Court of Appeal, 1993)
Underwood v. Dunbar
628 So. 2d 211 (Louisiana Court of Appeal, 1993)
Bacle v. Wade
607 So. 2d 927 (Louisiana Court of Appeal, 1992)
Boudreaux v. Farmer
604 So. 2d 641 (Louisiana Court of Appeal, 1992)
Fernandez v. M/V RIO LIMAY
572 So. 2d 730 (Louisiana Court of Appeal, 1990)
Hobgood v. Aucoin
574 So. 2d 344 (Supreme Court of Louisiana, 1990)
Armstrong v. Fireman's Fund Ins. Co.
558 So. 2d 646 (Louisiana Court of Appeal, 1990)
Guidry v. Freeman
555 So. 2d 588 (Louisiana Court of Appeal, 1989)
Hobgood v. Aucoin
551 So. 2d 1362 (Louisiana Court of Appeal, 1989)
Henry v. National Union Fire Insurance Co.
544 So. 2d 405 (Supreme Court of Louisiana, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
542 So. 2d 102, 1989 WL 35220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henry-v-national-union-fire-ins-co-lactapp-1989.