STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
16-609
JUDE K. MENARD
VERSUS
DR. JOHN STROY, ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 2004-0649-I HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE
JOHN D. SAUNDERS JUDGE
Court composed of John D. Saunders, Billy H. Ezell, and D. Kent Savoie, Judges.
AFFIRMED. Kenneth W. DeJean Adam R. Credeur Law Offices of Kenneth W. DeJean P. O. Box 4325 Lafayette, LA 70502 (337) 235-5294 COUNSEL FOR PLAINTIFF/APPELLANT: Jude K. Menard
Brent E. Kinchen Kinchen, Walker, Bienvenu, Bargas, Reed & Helm, L.L.C. 9456 Jefferson Highway Building III, Suite F Baton Rouge, LA 70809 (225) 292-6704 COUNSEL FOR DEFENDANT/APPELLEE: Shelter Mutual Insurance Company
Thomas Robert Shelton Shelton Law Firm P. O. Drawer 52548 Lafayette, LA 70505 (337) 237-3000 COUNSEL FOR DEFENDANT/APPELLEE: Dr. John Stroy SAUNDERS, J.
This personal injury suit arises out of an incident where Plaintiff’s wrist was
injured by Defendant when Defendant grabbed a sheet of paper from Plaintiff’s
hand. Plaintiff was subsequently diagnosed with De Quervain’s tendinitis, received
treatment, and still suffers from pain. Plaintiff was awarded $3,000.00 in general
damages and $3,048.00 in special damages. Plaintiff was denied reimbursement for
a 2004 medical bill in the sum of $220.00. Plaintiff appeals the amount of general
damages as well as the denial of the 2004 medical bill.
FACTS AND PROCEDURAL HISTORY:
Jude K. Menard, hereinafter “Plaintiff,” was employed by Lafayette Motors
as a service advisor on the day of the incident on August 29, 2003. Dr. John Stroy,
hereinafter “Defendant,” arrived at Lafayette Motors the morning of August 29,
2003, and asked Plaintiff for a copy of a repair estimate that had been previously
prepared for Defendant’s wife’s vehicle. This estimate was previously rejected by
Defendant’s wife.
Plaintiff went to make a copy of the estimate. While he was making a copy,
Buddy Delahoussaye, the service and shop manager was speaking to Defendant.
Mr. Delahoussaye instructed Plaintiff not to give the copy of the estimate to
Defendant. Plaintiff crumpled the estimate to throw it in the trash. Defendant then
grabbed the estimate out of Plaintiff’s hand and twisted his right wrist in the
process. Defendant left the premises with the copy of the estimate.
Plaintiff suffered injuries to his wrist and arm, and he was later diagnosed
with De Quervain’s tendinitis by an orthopedic surgeon. An expert witness
obtained by Defendant also confirmed this diagnosis. On April 10, 2012, several
years after the incident, Plaintiff testified that he still suffered pain in his wrist. On February 10, 2004, Plaintiff filed an Original Petition for Damages
against Defendant alleging that the actions of Defendant were the proximate cause
of his injuries, as well as the medical bills incurred in light of the injury. Defendant
filed an Answer and a Reconventional Demand on February 26, 2004, which
contained allegations that Plaintiff had made defamatory and slanderous public
statements against Defendant that caused Defendant to suffer embarrassment,
humiliation, and mental anguish. On or about March 23, 2006, Plaintiff filed a
Motion to Strike and/or Dismiss the Reconventional Demand, which was granted
on February 21, 2008, by virtue of a judgment. Plaintiff then filed a First
Supplemental and Amending Petition naming Shelter Mutual Insurance Company,
Defendant’s homeowner’s insurer, as an additional defendant in the suit. Shelter
Mutual Insurance Company filed an Answer to this petition pleading that, despite
issuing a homeowner’s insurance to Defendant, this policy did not provide
coverage for the incident that occurred between Plaintiff and Defendant. Shelter
Mutual Insurance Company filed a Motion for Summary Judgment on October 1,
2012, which was denied.
A bench trial was held on November 24, 2014. The trial court found in favor
of Plaintiff, on the issue of liability against the Defendants, and the court awarded
Plaintiff general damages in the amount of $3,000.00. The trial court denied the
application of the intentional acts exclusion raised by Shelter Mutual Insurance
Company. The trial court also awarded Plaintiff special damages for the medical
expenses from August 2003 to November 2003 in the amount of $3,048.00. The
trial court denied reimbursement for the March 2004 medical bill in the sum of
$220.00.
The Reasons for Ruling were signed on January 20, 2015, and a final
judgment was entered on April 12, 2016. 2 ASSIGNMENTS OF ERROR:
1. The trial court abused its discretion by awarding $3,000.00 in general damages to Plaintiff, as this is an inadequate award given the evidence and facts. 2. The trial court’s determination that Plaintiff’s medical treatment on March 9, 2004 did not relate back to the incident and the court’s denial of medical expenses associated with this treatment was an abuse of discretion and/or manifestly erroneous as it is contrary to the evidence and facts.
STANDARD OF REVIEW:
Vast discretion is accorded the trier of fact in fixing general damage awards.
La.Civ.Code art. 2324.1; Hollenbeck v. Oceaneering Int., Inc., 96-0377, p. 13
(La.App. 1 Cir. 11/8/96); 685 So.2d 163, writ denied, 97-493 (La. 4/4/97),692
So.2d 421. This vast discretion is such that an appellate court should rarely disturb
an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257
(La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059. Thus, the role of the
appellate court in reviewing general damage awards 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. Id.
“Factual findings of a trial court are reviewed under the manifest error-
clearly wrong standard of review.” Thibodeaux v. Comeaux, 11-27, p. 5 (La.App. 3
Cir. 6/15/11), 69 So.3d 674, 679 (citing Fontenot v. Patterson Ins., 09-669 (La.
10/20/09), 23 So.3d 259). An appellate court may not disturb a finding of fact
unless the record establishes that a factual, reasonable basis does not exist and the
finding is clearly wrong or manifestly erroneous. Id.
DISCUSSION OF THE MERITS:
In his first assignment of error, Plaintiff contends the trial court abused its
discretion by awarding $3,000.00 in general damages to Plaintiff.
3 “Vast discretion is accorded the trier of fact in fixing general damage
awards.” Stelly v. Zurich American Ins. Co., 11-1144, p.3 (La.App. 3 Cir. 2/1/12);
83 So.3d 1225, 1228 (citations omitted).
Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or decrease the award. Id. at 1228 (quoting Youn, 623 So.2d at 1261).
“The initial inquiry, in reviewing an award of general damages, is whether
the trier of fact abused its discretion in assessing the amount of damages. Cone v.
National Emergency Serv. Inc., 99-0934 (La.10/29/99), 747 So.2d 1085, 1089;
Reck v. Stevens, 373 So.2d 498 (La.1979).” Id. (quoting Duncan v. Kansas City S.
Ry.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
16-609
JUDE K. MENARD
VERSUS
DR. JOHN STROY, ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 2004-0649-I HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE
JOHN D. SAUNDERS JUDGE
Court composed of John D. Saunders, Billy H. Ezell, and D. Kent Savoie, Judges.
AFFIRMED. Kenneth W. DeJean Adam R. Credeur Law Offices of Kenneth W. DeJean P. O. Box 4325 Lafayette, LA 70502 (337) 235-5294 COUNSEL FOR PLAINTIFF/APPELLANT: Jude K. Menard
Brent E. Kinchen Kinchen, Walker, Bienvenu, Bargas, Reed & Helm, L.L.C. 9456 Jefferson Highway Building III, Suite F Baton Rouge, LA 70809 (225) 292-6704 COUNSEL FOR DEFENDANT/APPELLEE: Shelter Mutual Insurance Company
Thomas Robert Shelton Shelton Law Firm P. O. Drawer 52548 Lafayette, LA 70505 (337) 237-3000 COUNSEL FOR DEFENDANT/APPELLEE: Dr. John Stroy SAUNDERS, J.
This personal injury suit arises out of an incident where Plaintiff’s wrist was
injured by Defendant when Defendant grabbed a sheet of paper from Plaintiff’s
hand. Plaintiff was subsequently diagnosed with De Quervain’s tendinitis, received
treatment, and still suffers from pain. Plaintiff was awarded $3,000.00 in general
damages and $3,048.00 in special damages. Plaintiff was denied reimbursement for
a 2004 medical bill in the sum of $220.00. Plaintiff appeals the amount of general
damages as well as the denial of the 2004 medical bill.
FACTS AND PROCEDURAL HISTORY:
Jude K. Menard, hereinafter “Plaintiff,” was employed by Lafayette Motors
as a service advisor on the day of the incident on August 29, 2003. Dr. John Stroy,
hereinafter “Defendant,” arrived at Lafayette Motors the morning of August 29,
2003, and asked Plaintiff for a copy of a repair estimate that had been previously
prepared for Defendant’s wife’s vehicle. This estimate was previously rejected by
Defendant’s wife.
Plaintiff went to make a copy of the estimate. While he was making a copy,
Buddy Delahoussaye, the service and shop manager was speaking to Defendant.
Mr. Delahoussaye instructed Plaintiff not to give the copy of the estimate to
Defendant. Plaintiff crumpled the estimate to throw it in the trash. Defendant then
grabbed the estimate out of Plaintiff’s hand and twisted his right wrist in the
process. Defendant left the premises with the copy of the estimate.
Plaintiff suffered injuries to his wrist and arm, and he was later diagnosed
with De Quervain’s tendinitis by an orthopedic surgeon. An expert witness
obtained by Defendant also confirmed this diagnosis. On April 10, 2012, several
years after the incident, Plaintiff testified that he still suffered pain in his wrist. On February 10, 2004, Plaintiff filed an Original Petition for Damages
against Defendant alleging that the actions of Defendant were the proximate cause
of his injuries, as well as the medical bills incurred in light of the injury. Defendant
filed an Answer and a Reconventional Demand on February 26, 2004, which
contained allegations that Plaintiff had made defamatory and slanderous public
statements against Defendant that caused Defendant to suffer embarrassment,
humiliation, and mental anguish. On or about March 23, 2006, Plaintiff filed a
Motion to Strike and/or Dismiss the Reconventional Demand, which was granted
on February 21, 2008, by virtue of a judgment. Plaintiff then filed a First
Supplemental and Amending Petition naming Shelter Mutual Insurance Company,
Defendant’s homeowner’s insurer, as an additional defendant in the suit. Shelter
Mutual Insurance Company filed an Answer to this petition pleading that, despite
issuing a homeowner’s insurance to Defendant, this policy did not provide
coverage for the incident that occurred between Plaintiff and Defendant. Shelter
Mutual Insurance Company filed a Motion for Summary Judgment on October 1,
2012, which was denied.
A bench trial was held on November 24, 2014. The trial court found in favor
of Plaintiff, on the issue of liability against the Defendants, and the court awarded
Plaintiff general damages in the amount of $3,000.00. The trial court denied the
application of the intentional acts exclusion raised by Shelter Mutual Insurance
Company. The trial court also awarded Plaintiff special damages for the medical
expenses from August 2003 to November 2003 in the amount of $3,048.00. The
trial court denied reimbursement for the March 2004 medical bill in the sum of
$220.00.
The Reasons for Ruling were signed on January 20, 2015, and a final
judgment was entered on April 12, 2016. 2 ASSIGNMENTS OF ERROR:
1. The trial court abused its discretion by awarding $3,000.00 in general damages to Plaintiff, as this is an inadequate award given the evidence and facts. 2. The trial court’s determination that Plaintiff’s medical treatment on March 9, 2004 did not relate back to the incident and the court’s denial of medical expenses associated with this treatment was an abuse of discretion and/or manifestly erroneous as it is contrary to the evidence and facts.
STANDARD OF REVIEW:
Vast discretion is accorded the trier of fact in fixing general damage awards.
La.Civ.Code art. 2324.1; Hollenbeck v. Oceaneering Int., Inc., 96-0377, p. 13
(La.App. 1 Cir. 11/8/96); 685 So.2d 163, writ denied, 97-493 (La. 4/4/97),692
So.2d 421. This vast discretion is such that an appellate court should rarely disturb
an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257
(La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059. Thus, the role of the
appellate court in reviewing general damage awards 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. Id.
“Factual findings of a trial court are reviewed under the manifest error-
clearly wrong standard of review.” Thibodeaux v. Comeaux, 11-27, p. 5 (La.App. 3
Cir. 6/15/11), 69 So.3d 674, 679 (citing Fontenot v. Patterson Ins., 09-669 (La.
10/20/09), 23 So.3d 259). An appellate court may not disturb a finding of fact
unless the record establishes that a factual, reasonable basis does not exist and the
finding is clearly wrong or manifestly erroneous. Id.
DISCUSSION OF THE MERITS:
In his first assignment of error, Plaintiff contends the trial court abused its
discretion by awarding $3,000.00 in general damages to Plaintiff.
3 “Vast discretion is accorded the trier of fact in fixing general damage
awards.” Stelly v. Zurich American Ins. Co., 11-1144, p.3 (La.App. 3 Cir. 2/1/12);
83 So.3d 1225, 1228 (citations omitted).
Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or decrease the award. Id. at 1228 (quoting Youn, 623 So.2d at 1261).
“The initial inquiry, in reviewing an award of general damages, is whether
the trier of fact abused its discretion in assessing the amount of damages. Cone v.
National Emergency Serv. Inc., 99-0934 (La.10/29/99), 747 So.2d 1085, 1089;
Reck v. Stevens, 373 So.2d 498 (La.1979).” Id. (quoting Duncan v. Kansas City S.
Ry. Co., 00-66 (La. 10/30/00), 773 So.2d 670, 682–83).
Plaintiff testified that Defendant grabbed his shoulder, spun him around, and
grabbed his wrist and hand with both of his hands and twisted Plaintiff’s wrist until
he let go of the car repair estimate. Several witnesses were called, and their
versions differed; one witness claimed Defendant grabbed Plaintiff’s hand causing
him to turn, and another testified that Defendant tried to grab the estimate from
behind Plaintiff. Defendant himself testified that he was just standing close to
Plaintiff and did not have any physical contact with him.
Plaintiff testified that he began to feel sharp pains in his wrist the day of the
incident. Two days after the incident, Plaintiff went to the emergency room for the
pain and was referred to an orthopedist. He had three visits with the orthopedist
over the course of seven months, and Plaintiff was told after the third visit he
should return on an as-needed basis and was released to full-duty status. Plaintiff
did not appear for his next two scheduled visits with the orthopedist and did not
seek any further treatment. 4 Plaintiff testified that he experienced daily wrist pain for the first six months
following the incident and then the pain would “come and go.” Plaintiff
sporadically used several prescriptions, often waiting several days, weeks, and
months to refill them. Ultimately, the trial court did not find that Plaintiff suffered
significant injuries. We agree.
After considering the nature and extent of Plaintiff’s injuries along with the
treatment plan and its duration, we cannot say the trial court erred in its general
damage award of $3,000.00. A reasonable trier of fact could have ascertained this
amount based on the facts before it and especially in light of the vast discretion
afforded the trier of fact. The trial court found that the suit before us rested on the
issues of credibility and its belief that Plaintiff did not suffer significant injuries to
afford him a higher general damages award.
In his second assignment of error, Plaintiff contends the trial court’s
determination that Plaintiff’s medical treatment on March 9, 2004, did not relate
back to the incident, and the court’s denial of medical expenses totaling $220.00
associated with this treatment was an abuse of discretion and/or manifestly
erroneous as it is contrary to the evidence and facts.
Plaintiff argues that the November 11, 2003 doctor’s visit and the March 9,
2004 doctor’s visit are clearly related to and resulted from the original incident
between Plaintiff and Defendant when the wrist injury occurred. While this
appears to be plausible considering the timeline and medical treatment sought, the
trial court found that “the lapse between these visits is too tenuous to relate back to
the paper pulling incident.” Considering the vast discretion afforded to the trial
court as trier of fact, we cannot say this determination was manifestly erroneous.
5 DISPOSITION:
Plaintiff, Jude K. Menard, raised two assignments of error. For the foregoing
reasons, we affirm the trial court’s judgment and assess all costs of this appeal to
Plaintiff.
AFFIRMED.