Hobgood v. Aucoin

574 So. 2d 344, 1991 WL 30161
Supreme Court of Louisiana·Decided November 8, 1990·No. 90-C-0607·Published·Cited by 94 cases

Opinion

574 So.2d 344 (1990)

John Paul HOBGOOD
v.
Eugene J. AUCOIN, Jr., et al.

No. 90-C-0607.

Supreme Court of Louisiana.

November 8, 1990.
Rehearing Denied March 7, 1991.

Huntington Downer, Jr., Joseph Waitz, Waitz & Downer, for John Paul Hobgood plaintiff-applicant.

John Blackwell, Gibbens & Blackwell, for Eugene Aucoin and Travelers Ins. Co. defendants-respondents.

HALL, Justice.

In this case, we consider whether an award of $50,000 adequately compensates plaintiff for his loss of earning capacity. A review of the record convinces us that the award is adequate and we affirm.

PROCEDURAL HISTORY

Plaintiff, John Paul Hobgood, was injured in an automobile accident in November of 1982. The insurance carrier for the tortfeasor stipulated to liability and chose to try the case solely on the issue of damages. A judgment was rendered on January 11, 1988 in plaintiff's favor, awarding him $100,000 in general damages, $6,082 in past medical expenses, and $12,000 in future medical expenses, for a total award of $118,082.

Plaintiff appealed claiming that the trial court erred in failing to award any damages for future loss of earnings or loss of earning capacity. The court of appeal affirmed the judgment of the trial court in an unpublished opinion noted at 547 So.2d 1147, with rehearing denied in a published opinion, 551 So.2d 1362 (La.App. 1st Cir. 1989).

Plaintiff filed a writ application with this court again alleging error in the failure to compensate him for future loss of earnings and loss of earning capacity. We granted the writ and issued the following order:

"GRANTED IN PART, DENIED IN PART. The decision of the court of appeal is reversed insofar [as] it denies relator recovery for diminution of earning capacity. Under the facts of this case, relator has shown a loss of earning capacity. Folse v. Fakouri, 371 So.2d 1120, 1124 (La.1979). The court of appeal is ordered to review the record and fix relator's damages for loss of earning capacity according to the guidelines established therefor in Philippe v. Browning Arms Company, 395 So.2d 310, 317 (La. 1980), and Coco v. Winston Industries, Inc., 341 So.2d 332, 338 (La. 1976). Otherwise, the application is denied." *345 Hobgood v. Aucoin, 551 So.2d 1306 (La. 1989).

After remand, the court of appeal, in a lengthy and well-reasoned opinion, awarded the plaintiff $50,000 for loss of earning capacity. Hobgood v. Aucoin, 558 So.2d 1285 (La.App. 1st Cir.1990).

Plaintiff again sought for this court to review the judgment of the court of appeal, claiming that the appellate court did not follow the previous order of this court and that the $50,000 award is wholly inadequate. Again, plaintiff's writ was granted. 563 So.2d 889 (La.1990). After a more thorough review of the record, we affirm.

FACTS

Since the sole issue before this court is plaintiff's loss of earning capacity, our recitation of the facts is limited to only those facts relevant to a determination of that issue.

MEDICAL CONDITION

Plaintiff was 36 years of age at the time of the accident in 1982. As a result of the accident, plaintiff received back injuries which were diagnosed as cervical and lumbar strain, with the lumbar injury being the more serious. Plaintiff has been treated conservatively by various physicians since the time of the accident and has seen no significant improvement in the lumbar pain.

Dr. William H. Kinnard performed a magnetic resonance imaging (MRI) test and subsequently a myelogram on the plaintiff in 1987. These diagnostic tests revealed that the plaintiff had degenerative arthritic changes in the cervical spine along with a bulging disc at the C-5 level of the spine. Furthermore, the tests showed compression of the fecal sack of the L-5 level of the spine, narrowing of the disc space at the L-4/L-5 level, and a central bulging disc at the L-4 level. Dr. Kinnard did not anticipate that surgery would be necessary to correct the cervical problems, but felt that a surgical fusion in the lumbar region could be a possibility to alleviate plaintiff's ongoing and worsening pain.

Because of plaintiff's relatively young age and extent of degeneration in his back, Dr. Kinnard felt that surgery would be likely. He also stated that the surgery involved had about a 70% success rate. At the time of trial, plaintiff had not undergone the fusion surgery.

Plaintiff was given a 10% disability rating to his body as a whole. He would have a 25% disability if he were to undergo the surgery. Plaintiff was instructed to "avoid activities that tended to make his condition worse and to use common sense." Lifting restrictions of 25-30 pounds and restrictions as to repetitive pushing and pulling, crawling and excessive bending would be imposed were plaintiff to undergo surgery.

PLAINTIFF'S ABILITY TO WORK

Although plaintiff continued to work after the accident, he stated that he could no longer work as hard as he had worked preceding the accident. Plaintiff owns and operates an oil well service business. The business requires that plaintiff spend many hours a week calling on customers and visiting drilling sites. Plaintiff testified that his injuries prevent him from traveling as extensively, which deprives him of crucial client contacts. Generally, he can no longer work as hard or as long as he did before the accident. Plaintiff has hired other personnel in an effort to cover for his lost ability. He contends that these personnel have not been as effective as he was.

PLAINTIFF'S EDUCATION AND EXPERIENCE

The plaintiff has a master's degree in physical education and an education specialist degree in administration supervision. He worked as a coach and teacher until the late 1970's when he began his work in oil field sales. In 1981, he started his own oil well service business, which he still operates.

PLAINTIFF'S INCOME BEFORE AND AFTER THE ACCIDENT

In 1981, the first year of his new business, plaintiff lost money. In 1982, the year of the accident, plaintiff's business income was $77,152. Thereafter, his business income was $70,351 in 1983, $77,308 in *346 1984, $82,964 in 1985, and $92,451 in 1986. Thus, plaintiff's income increased during this period of time in spite of the severe depression in the oil and gas business in Louisiana. These figures belie the assumption that plaintiff's business earnings were diminished $37,500 annually after the accident, upon which plaintiff's expert economist based his estimate of loss of future income.

LAW

In Folse v. Fakouri, 371 So.2d 1120 (La. 1979), this court recognized that in determining an award for loss of earnings and earning capacity, what the plaintiff earned before and after the injury does not constitute the measure. While plaintiff's earning capacity at the time of the injury is relevant, it is not necessarily determinative of his future ability to earn. Damages should be estimated on the injured person's ability to earn money, rather than what he actually earned before the injury. Earning capacity in itself is not necessarily determined by actual loss; damages may be assessed for the deprivation of what the injured plaintiff could have earned despite the fact that he may never have seen fit to take advantage of that capacity. The theory is that the injury done him has deprived him of a capacity he would have been entitled to enjoy even though he never profited from it monetarily.

The plaintiff in Folse was a school bus driver who was totally and permanently disabled and could no longer drive his bus.

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Hobgood v. Aucoin, 574 So. 2d 344, 1991 WL 30161 (La. 1990).

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