STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 07-314
JOHN E. BEARD, ET UX.
VERSUS
COREGIS INSURANCE CO., ET AL.
**********
APPEAL FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT PARISH OF ST. LANDRY, NO. 04-C-4545-B HONORABLE ELLIS J. DAIGLE, DISTRICT JUDGE
JOHN D. SAUNDERS JUDGE
Court composed of John D. Saunders, Elizabeth A. Pickett, and James T. Genovese, Judges.
AFFIRMED.
Daniel G. Brenner Bolen, Parker & Brenner P. O. Box 11590 Alexandria, LA 71315-1590 (318) 445-8236 Counsel for Defendants/Appellants: Coregis Ins. Co. St. Landry Parish School Board Gloria D. Lalonde Chad P. Pitre 111 North Court Street Opelousas, LA 70570 (337) 942-8587 Counsel for Plaintiffs/Appellees: John E. Beard Kay Beard SAUNDERS, Judge.
This is a personal injury case arising from a collision between a pickup truck
and a school bus near the shoulder of a four-lane highway. The injured driver of the
pickup truck brought suit against the school bus driver, joining as defendants the bus
driver’s employer and the carrier of the insurance policy covering the bus. At a trial
on the merits before the 27th Judicial District Court in St. Landry Parish, a jury found
for the plaintiff and awarded damages totaling $194,059.00. The plaintiff then moved
for a Judgment Notwithstanding the Verdict (hereinafter “JNOV”) as to the amount
of damages awarded. The trial judge granted the JNOV motion, increasing the
damage amount by $135,000.00. The defendants appealed to this court, charging four
assignments of error. The plaintiff has answered the appeal and asserts one
assignment of error. For the reasons set forth below, we affirm the trial court’s
decision in full.
FACTS AND PROCEDURAL HISTORY:
On January 23, 2004, Gloria Lalonde (hereinafter “Ms. Lalonde”) and John
Beard (hereinafter “Mr. Beard”) were involved in an automobile accident on U.S.
Highway 190 (hereinafter “190"), between the cities of Baton Rouge and Opelousas.
Ms. Lalonde, the operator of a sixty-six passenger school bus belonging to the St.
Landry Parish School Board (hereinafter “School Board”), was transporting children
home from school in a westerly direction along 190 when she decided to stop at the
home of her acquaintance, Mary Glossup (hereinafter “Ms. Glossup”), to use the
restroom. Ms. Glossup’s home was located on the northern side of 190 at the end of
a private driveway. Having returned to the driver’s seat, Ms. Lalonde began backing
the school bus out of the driveway in an attempt to resume traveling west on 190. As
Ms. Lalonde backed out, Mr. Beard’s truck, traveling in the right lane of 190, approached from the east. The two vehicles collided. After the accident, Mr. Beard
consulted an orthopaedic surgeon, Dr. Louis Blanda, who diagnosed Mr. Beard with
multiple herniated discs in his neck and lower back.
Mr. Beard brought suit on October 22, 2004, in the 27th Judicial District Court
in St. Landry Parish, against Ms. Lalonde, the School Board, and Coregis Insurance
Company (hereinafter “Coregis”) (collectively, “the defendants”), claiming damages
for negligent personal injury. At trial, the jury heard testimony from Dr. Blanda in
which he attributed Mr. Beard’s back and neck injuries to the accident in question.
Dr. Blanda further testified that because Mr. Beard suffers from an unrelated heart
condition, he is a poor surgical risk for the corrective procedure associated with his
injuries. After a trial on the merits, the jury found for Mr. Beard on August 25, 2006,
and awarded damages as follows:
1. Past Pain, Suffering, and Mental $10,000.00
Anguish 2. Future Pain, Suffering, and Mental $20,000.00
Anguish 3. Physical Disability $0 4. Loss of Enjoyment of Life $0 5. Past Medical Expenses $14,059.00 6. Future Medical Expenses $45,000.00 7. Past Economic Loss $35,000.00 8. Future Economic Loss $70,000.00
Mr. Beard subsequently filed a motion for JNOV, requesting the trial court to
increase the amount of general damages awarded (i.e, past pain, suffering, and mental
anguish; future pain, suffering and mental anguish; physical disability; and loss of
enjoyment of life). The court granted Mr. Beard’s JNOV motion and modified the
2 relevant damage awards as follows:
1. Past Pain, Suffering, and Mental $30,000.00
Anguish 2. Future Pain, Suffering, and Mental $80,000.00
Anguish 3. Physical Disability $40,000.00 4. Loss of Enjoyment of Life $15,000.00
The defendants appealed suspensively from the trial court’s judgment,
asserting four assignments of error. Mr. Beard has answered the appeal and asserts
a fifth assignment of error.
ASSIGNMENTS OF ERROR:
1. Did the trial court commit manifest error in the use of a verdict form, which required the jury to consider both negligence and causation as to both drivers?
2. Did the trial court commit manifest error when the jury found both Ms. Lalonde and Mr. Beard negligent but then found Ms. Lalonde to be 100% at fault in causing the accident?
3. Did the trial court commit an error of law in granting Mr. Beard’s motion for JNOV?
4. Did the jury commit manifest error in awarding past lost earnings in the amount of $35,000.00 and future loss of earnings in the amount of $70,000.00?
5. Did the trial court commit manifest error in awarding an inadequate amount of general damages for multiple herniated discs?
ASSIGNMENT OF ERROR #1:
The defendants argue that the trial court erred in using a verdict form
containing interrogatories which asked the jury first to make a determination as to
whether the relevant conduct of each driver was “negligent,” and then to make a
separate determination as to whether each driver’s negligence was a “proximate
cause” of the accident in question. The defendants contend that such interrogatories
3 were so misleading or confusing as to constitute reversible error.
By way of counter-argument, Mr. Beard asserts that the defendants have
waived their right to object to the jury interrogatories at this stage in the proceedings.
Because Mr. Beard raises the threshold issue of waiver, we address his argument first.
A party may not assign as error the giving or the failure to give an instruction unless he objects thereto either before the jury retires to consider its verdict or immediately after the jury retires, stating specifically the matter to which he objects and the grounds of his objection. If he objects prior to the time the jury retires, he shall be given an opportunity to make the objection out of the hearing of the jury.
La.Code Civ.P. art. 1793(C). Where a party does not object to jury charges at trial,
that party waives the right to so object on appeal. Libersat v. J&K Trucking, Inc., 00-
192 (La.App. 3 Cir. 10/11/00), 772 So.2d 173, writ denied, 01-458 (La. 4/12/01), 789
So.2d 598. “It is only when jury instructions or interrogatories contain a ‘plain and
fundamental’ error that the contemporaneous objection requirement is relaxed and
appellate review is not prohibited.” Campbell v. Hospital Serv. Dist. No. 1 Caldwell
Parish, 37,876, p. 6 (La.App. 2 Cir. 12/10/03), 862 So.2d 338, 344, writ denied, 04-
69 (La. 3/19/04), 869 So.2d 852.
Here, the trial record indicates that the defendants failed to object to the jury
instructions regarding “proximate cause” at any point prior to the jury’s retiring to
consider the verdict or immediately thereafter. Thus, unless the jury instructions or
interrogatories in the case at bar contain a “plain and fundamental” error, we must
consider the defendants’ objection waived. Id.
The defendants contend that the lower court’s bifurcation of “negligence” and
“proximate cause” determinations into separate jury interrogatories constitutes “plain
and fundamental” error sufficient to preserve their right to object on appeal. In
4 support of this contention, the defendants cite Fowler v. Roberts, 556 So.2d 1
(La.1989). There, the Louisiana Supreme Court held:
The determination of liability in a negligence case usually requires proof of five separate elements: (1) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) proof that the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant’s substandard conduct was a cause-in-fact of the plaintiff’s injuries (the cause-in-fact element); (4) proof that the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element).
Fowler, 556 So.2d at 4. Specifically, the defendants argue that a verdict form
containing separate interrogatories regarding “proximate cause” and “negligence” is
plainly erroneous, in that it is impossible to find negligence without proximate cause,
as the latter is merely an element of the former. We find this argument without merit.
In Detraz v. Lee, 05-1263 (La. 1/17/07), 950 So.2d 557, the Louisiana Supreme
Court considered the propriety of a similar jury verdict form in a personal injury trial
stemming from an allegedly negligent pedicure. There, the form at issue asked the
jury to determine first whether the defendant was “negligent” and then whether that
negligence “caused” the plaintiff’s injuries. In overruling the lower court’s finding
that the verdict form violated Fowler, the Detraz court explained:
[I]n Fowler, this Court was not defining “negligence” but was instead defining “liability” in a negligence case. “Negligence” has been defined by this Court as follows: “conduct which falls below the standard of care established by law for the protection of others against an unreasonable harm.” Thus, the court of appeal erred in ruling that a finding that the defendants were negligent in performing the pedicure “enfolds all five of the Fowler factors, including causation.”
Detraz, 950 So.2d at 562.
In the instant case, Ms. Lalonde assigns as “plain and fundamental” error the
5 trial court’s “dissecting proximate cause out of the negligence determination.”
However, as Detraz makes clear, proximate cause and negligence are actually coequal
factors in the overall determination of liability in a negligence case. The trial court
cannot “dissect” out of negligence that which is not a component of negligence to
begin with. Thus, the defendants’ argument must fail, and we must consider their
objection to the jury verdict form waived.
ASSIGNMENT OF ERROR #2:
The defendants’ contend that the jury committed an error of law in concluding
that Mr. Beard was “negligent” but not a “proximate cause” of the accident. We
disagree.
As discussed above, “proximate cause” is not subsumed by a finding of
“negligence.” Detraz, 950 So.2d 557. “Proximate cause” is cause “which
immediately precedes and produces the effect, as distinguished from remote, mediate,
or predisposing cause[.]” Hinegardner v. Dickey’s Potato Chip Co., 205 So.2d 157,
161-62 (La.App. 1967), writ denied, 206 So.2d 94 (La.1968). Cause “from which the
fact might be expected to follow without the concurrence of any unusual
circumstance” is “proximate cause.” Id. at 162. “‘Proximate’ cause primarily
inquires whether a party’s duty extends to the particular risk in question that causes
injury to another party in a tort action.” Frost v. Albright, 460 So.2d 1125, 1127
(La.App. 2 Cir. 1984), writ denied, 462 So.2d 1266 (La.1985) (emphasis in original).
In the instant case, the defendants argue that Mr. Beard proximately caused the
accident by failing to change lanes upon observing Ms. Lalonde’s attempting to
reverse her bus onto 190, yet the defendants cite neither case nor statute that extends
such a duty to Mr. Beard. On the contrary, in such situations, it is the reversing party
6 upon whom the law places the duty to avoid incident: “An unusual degree of care is
required of motorists who drive vehicles from a private driveway into a highway, and
this requirement is increased when the vehicle is being backed into the highway.”
Josey v. Granite State Fire Ins. Co., 122 So.2d 303, 306 (La.App. 2 Cir. 1960).
“When executing such a maneuver, the motorist must proceed with utmost caution
and use great care and attention to be sure that it can be accomplished without
interfering with other vehicles.” Schackai v. Tenneco Oil Co., 436 So.2d 729, 732
(La.App. 4 Cir. 1983). Further, this court has previously held that a driver who is
already on the roadway has the right to assume that a motorist on a private driveway
will not enter the roadway until the driver has already passed. Valin v. Barnes, 550
So.2d 352 (La.App. 3 Cir.), writ denied, 552 So.2d 399 (La.1989).
As an initial matter, this court finds it difficult to distinguish any basis for
concluding that Mr. Beard was negligent at all. The record indicates that Mr. Beard
was not driving at an excessive rate of speed, did not fail to maintain a proper
lookout, and at no point exhibited anything less than complete control of his truck.
It was Ms. Lalonde’s duty to exhibit an unusual degree of caution and attention in
reversing her bus onto the highway, and it was Mr. Beard’s right to assume that Ms.
Lalonde would not enter his lane until it was safe to do so. Ms. Lalonde’s failure to
exhibit the requisite degree of care in entering the roadway was the cause that
immediately preceded and produced the collision at issue here, and thus the jury did
not commit an error of fact in concluding that Ms. Lalonde was the sole proximate
cause of the accident, notwithstanding whatever negligence it may have attributed to
Mr. Beard.
We are unable to determine what action on the part of Mr. Beard constituted
7 negligence. We are, however, satisfied that the jury’s conclusion that Mr. Beard was
not guilty of negligence that proximately caused the accident is supported by the
record. Accordingly, this assignment of error is without merit.
ASSIGNMENT OF ERROR #3:
The defendants further argue that the trial court committed an error of law in
granting Mr. Beard’s motion for judgment notwithstanding the verdict (JNOV). More
to the point, the defendants assert that the trial court failed to apply the appropriate
standard of consideration in granting Mr. Beard’s motion.
Louisiana Code of Civil Procedure Article 1811 governs the use of JNOV. As
outlined by the supreme court in Scott v. Hospital Service District No. 1, 496 So.2d
270, 274 (La.1986), JNOV is warranted when “the facts and inferences point so
strongly and overwhelmingly in favor of one party that the trial court believes that
reasonable persons could not arrive at a contrary verdict[.]” Id. (quoting Boeing v.
Shipman, 411 F.2d 365, 374 (5th Cir. 1969). The motion should be granted “only
when the evidence points so strongly in favor of the moving party that reasonable
persons could not reach different conclusions, not merely when there is a
preponderance of evidence for the mover.” Id. (quoting Robertson v. Penn, 472
So.2d 927, 929 (La.App. 1 Cir.), writ denied, 476 So.2d 353 (La.1985). The motion
should be denied if there is “evidence opposed to the motion [which is] of such
quality and weight that reasonable [persons] in the exercise of impartial judgment
might reach different conclusions[.]” Id. (quoting Boeing, 411 F.2d at 374).
However, “[i]n making this determination, the trial court should not evaluate the
credibility of witnesses, and all reasonable inferences or factual questions should be
resolved in favor of the non-moving party.” Anderson v. New Orleans Pub. Serv.,
8 Inc., 583 So.2d 829, 832 (La.1991).
Anderson went on to clarify the scope of this court’s review on appeal:
In reviewing a JNOV, the appellate court must first determine if the trial court erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether to grant the motion or not, i.e. do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict? If the answer to that question is in the affirmative, then the trial judge was correct in granting the motion. If, however, reasonable men in the exercise of impartial judgment might reach a different conclusion, then it was error to grant the motion and the jury verdict should be reinstated.
Id.
In the instant case, the defendants argue that the trial court erred in granting
Mr. Beard’s motion for JNOV, which thereby raised the total general damage award
from $30,000.00 to $165,000.00. We disagree. In granting Mr. Beard’s JNOV
motion, the lower court signaled its view that the facts and inferences of the case at
bar point so strongly and overwhelmingly in favor of supplementing the general
damages awarded to Mr. Beard that reasonable persons in the exercise of impartial
judgment could arrive at no other conclusion. Such a view finds support in the record
evidence.
Here, the more than $160,000.00 awarded for past and future medical expenses
and economic losses indicates that the jury regarded the evidence presented by Mr.
Beard regarding his back injury to be credible, yet the same jury declined to award
any damages at all for Mr. Beard’s physical disability. Such a result seems
incompatible with the record evidence, as the uncontroverted testimony of Mr.
Beard’s medical expert, Dr. Blanda, proclaimed him to be “totally and permanently
disabled.” At trial, rather than presenting the testimony of their own medical expert,
Dr. Robert Morrow, the defendants chose instead to rest on her cross-examination of
9 Dr. Blanda, at which time she called the credibility of Dr. Blanda’s testimony into
question. As outlined above, however, in ruling upon a motion for JNOV a trial court
is not permitted to evaluate questions of witness credibility, but must constrain its
evaluation to the facts contained in the record and the inferences to be made
therefrom. Id. Even assuming that Ms. Lalonde’s cross-examination established a
lower damage amount for Mr. Beard’s physical disability than otherwise would have
been justified, such questioning does not represent countervailing evidence sufficient
to justify a damage amount of zero. In failing to introduce into the record evidence
contradictory to Dr. Blanda’s testimony, the defendants foreclosed the possibility of
reasonable minds’ reaching different conclusions as to Mr. Beard’s physical
disability. Thus, the trial court’s JNOV regarding physical disability must stand.
Similarly, the trial court’s decision to raise the damage award for Mr. Beard’s
loss of enjoyment of life from zero to $15,000.00 is also valid. Mr. Beard’s
uncontroverted testimony indicates that although he was able to participate after the
accident in his customary activities of hunting and gardening, he was unable to do so
without experiencing additional and excessive pain. In light of such testimony, it
seems inconceivable that reasonable men exercising impartial judgment could
conclude that Mr. Beard’s injury in no way negatively impacted his enjoyment of life,
such that his damages under this heading should be fixed at zero. Thus, the trial
court’s JNOV increasing these damages was proper.
Finally, the trial court was justified in increasing Mr. Beard’s damages for past
and future pain, suffering, and mental anguish from $30,000.00 to $110.000.00. The
defendants cite in opposition Wainwright v. Fontenot, 00-0492, (La. 10/17/00), 774
So.2d 70, a tort case involving the calculation of general damages owed by a drug
10 store for its negligent mislabeling of the proper dosage for a child’s prescription
medication. There, the supreme court proclaimed:
The assessment of “quantum,” or the appropriate amount of damages, by a trial judge or jury is a determination of fact, one entitled to great deference on review. As such, “the role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact.” Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993).
Wainwright, 774 So.2d at 74. Later in that same decision, however, the Wainwright
court went on to synthesize a general rule of application for reviewing damage
awards: “[W]hat the courts of appeal have done in cases such as this one is correct
jury verdicts that were illogical and inconsistent . . . Effectively, then, the ultimate
question has been whether the factfinder made inconsistent awards and thus abused
its discretion.” Id. at 75.
Here, the record indicates that as a consequence of the accident Mr. Beard has
suffered severe back pain in the past, and because the circumstances of the injury
preclude the alleviation of this pain through surgical repair, Mr. Beard will continue
to endure such pain and suffering in the future. As evidenced by the damages
awarded for past and future medical expenses and economic loss, the jury believed
Mr. Beard’s continuing back pain to be severe enough not only to prevent him from
working but also to necessitate additional medical treatment, yet the damages that the
jury chose to award Mr. Beard for pain and suffering represent less than one-sixth of
the total damages awarded. In light of such evidence, we agree with the trial court
in concluding that the jury’s verdict regarding past and future pain, suffering, and
mental anguish was illogically and inconsistently low, and, accordingly, we affirm
the trial court’s grant for JNOV regarding these damages.
11 ASSIGNMENT OF ERROR #4:
Finally, the defendants charge as error the trial court’s award to Mr. Beard of
$35,000.00 in lost earnings and $70,000.00 in future loss of earnings. The defendants
contend that these awards are unsubstantiated by the facts in evidence, in that Mr.
Beard’s loss of past earnings, and ostensibly his loss of future earnings, is due to
factors unrelated to the accident at issue here. We disagree.
“It is well settled that in reviewing damage awards the appellate court is not to
decide what it considers to be an appropriate award on the basis of the evidence, but
only to review the trier of fact’s exercise of discretion.” Collins v. Natchitoches
Parish Hosp., 493 So.2d 902, 903 (La.App. 3 Cir.), writ denied, 496 So.2d 1041
(La.1986). For an appellate court to disturb a trier of fact’s award of damages, the
record must clearly show it abused its discretion. Coco v. Winston Indus., 341 So.2d
332 (La.1977).
“[T]he burden is on the plaintiff to prove that he has or will suffer a loss of
income.” Carter v. State Farm Mut. Auto. Ins. Co., 548 So.2d 53, 55 (La.App. 3 Cir.
1989). Accordingly, this court has elsewhere held that a plaintiff must prove the
length of time that he missed work due to an accident in order to recover damages
under this heading. Boyette v. United Serv. Auto. Ass’n, 00-1918 (La. 4/3/01), 783
So.2d 1276.
Ms. Lalonde contends that the jury abused its discretion in awarding these
damages, in that economic factors affecting Mr. Beard’s employer are actually to
blame for Mr. Beard’s lost earnings. In support of such contention, Ms. Lalonde
points to Mr. Beard’s testimony that various periods of his post-accident
unemployment are attributable to the expiration of one “job” at a time when a
12 subsequent replacement “job” was not scheduled. We find Ms. Lalonde’s argument
without merit.
While Ms. Lalonde is correct in arguing that Mr. Beard should not be
compensated for earnings lost to temporary work shortages rather than due to the
accident at issue, it does not appear that the jury calculated Mr. Beard’s damages
improperly. The wage information presented in this case established that Mr. Beard
earned approximately $35,000.00 annually. Thus, the jury’s $35,000.00 award in lost
earnings was meant to compensate Mr. Beard for approximately one year’s worth of
unemployment. Mr. Beard testified at trial that he was able to continue working after
the accident until the late spring of 2005, at which point Mr. Beard was forced to
decline offers for further work because he was in too much pain to perform additional
“jobs.” The record further shows that Mr. Beard remained continuously unable to
work from that point until the jury returned its verdict on August 25, 2006, more than
one year later. Thus, we find the jury to be well within its discretion in awarding Mr.
Beard the equivalent of one year’s wages in earnings lost due to the accident.
Moreover, we find that the jury acted within its discretion in awarding
$70,000.00, or approximately two years’ wages, for Mr. Beard’s loss of future
earnings. “Awards for lost future income are inherently speculative, and are
intrinsically insusceptible of being calculated with mathematical certainty. Thus, the
courts must exercise sound judicial discretion in determining these awards, and render
awards which are consistent with the record and which work an injustice on neither
party.” Morgan v. Willis-Knighton Med. Ctr., 456 So.2d 650, 658 (La.App. 2 Cir.
1984). As discussed above, the record indicates that Mr. Beard’s injury left him
unable to work for approximately one year prior to the jury’s verdict in the case at
13 bar. In light of Mr. Beard’s inability to earn income prior to the jury’s verdict, it is
not unreasonably inconsistent for the jury to conclude that Mr. Beard would continue
to be so disabled for some time after the trial court’s judgment. Accordingly, we
affirm the trial court’s award of $70,000.00 for Mr. Beard’s loss of future earnings.
Mr. Beard asks in the alternative that this court increase the damage amount
awarded to him under this heading. We must deny such request. To the extent that
the lower court’s determination was within its discretion as a trier of fact and was not
inconsistent with the record, we find that court’s award for loss of future earnings to
be valid.
ASSIGNMENT OF ERROR #5:
Mr. Beard argues that the trial court erred in awarding an inadequate amount
of general damages and requests that this court now increase the damage award. We
As discussed above, for an appellate court to disturb a trier of fact’s award of
damages, the record must clearly show that the lower court abused its discretion.
Coco, 341 So.2d 332. In the instant case, we find no such abuse of discretion
contained in the record, and thus we reject the validity of this assignment of error.
Mr. Beard contends that the $165,000.00 awarded to him in general damages
constitutes an unreasonably insufficient sum, yet Mr. Beard’s damage award reached
the amount which he now challenges only after a $135,000.00 JNOV by the trial
judge. In light not only of the great deference with which this court must regard the
assessment of quantum, but also of the more than 500% increase of general damages
already awarded by the lower court prior to this appeal, we find little basis now for
disturbing the trial court’s award as an abuse of discretion.
14 CONCLUSION:
For the reasons set forth above, judgment of the trial court is affirmed in all
respects. All costs to be taxed to the defendants/appellants, Saint Landry Parish
School Board and Gloria D. Lalonde.