Lemoine v. Mike Munna, L.L.C.

148 So. 3d 205, 2013 La.App. 1 Cir. 2187, 2014 WL 3671789, 2014 La. App. LEXIS 1515
CourtLouisiana Court of Appeal
DecidedJune 6, 2014
DocketNo. 2013 CA 2187
StatusPublished
Cited by21 cases

This text of 148 So. 3d 205 (Lemoine v. Mike Munna, L.L.C.) 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
Lemoine v. Mike Munna, L.L.C., 148 So. 3d 205, 2013 La.App. 1 Cir. 2187, 2014 WL 3671789, 2014 La. App. LEXIS 1515 (La. Ct. App. 2014).

Opinion

CRAIN, J.

|2In this suit against an uninsured motorist insurer, the defendant appeals the trial court’s damage awards to the plaintiffs for economic loss and loss of consortium, while the plaintiffs appeal the denial of their bad faith claim seeking penalties and attorney fees. We affirm.

[209]*209FACTS AND PROCEDURAL HISTORY

Vickie Lemoine and her son, Payton Lemoine, were involved in an automobile accident on August 19, 2009, that, according to the parties’ stipulation, was caused solely by the fault of another motorist who was insured under a $500,000.00 single-limit liability policy. The claims against the other motorist, his employer, and his insurer were settled for a total of $495,000.00. Of those funds, Vickie received $440,000.00, her husband, Kenneth Lemoine, received $45,000.00 for loss of consortium, and Payton received $10,000.00. The parties further agreed that the Lemoines had uninsured/underin-sured motorist (UM) coverage with Allstate Insurance Company with policy limits of $100,000.00 per person and $800,000.00 per accident.

Vickie and Kenneth sought additional recovery under that UM policy as well as penalties and attorney fees based upon Allstate’s alleged failure to make an unconditional tender in violation of Louisiana Revised Statutes 22:1892 and 22:1978. The Lemoines stipulated that the amount in controversy for all of their claims against Allstate, except the bad faith claim, did not exceed $50,000.00. The parties also agreed that the recovery for the bad faith claim, if successful, would not exceed $50,000.00.

The claims against Allstate proceeded to trial where the evidence established that the accident occurred when an 18-wheeler jackknifed and struck Vickie’s vehicle. Shortly thereafter, Vickie began experiencing neck pain and dizziness and sought treatment with Dr. Jay Vega. An MRI revealed broad-based disc Rherniations at two levels, C5-6 and C6-7, and she was eventually referred to Dr. Najeeb Thomas, a neurosurgeon. After conservative care failed to provide any long term relief, Vickie underwent her first surgical procedure, a posterior cervical laminectomy and for-aminotomy, that was performed by Dr. Thomas on August 2, 2010, approximately one year after the accident. Following the first surgery, Dr. Thomas limited Vickie to medium-duty work with no lifting of objects heavier than 20 to 25 pounds.

Vickie testified that she did not experience any significant relief from the first surgery, so she pursued additional conservative care, including physical therapy and spinal injections; however, when that treatment likewise failed to provide significant relief, she underwent a cervical dis-cectomy and fusion at C5-6 and C6-7 on August 31, 2011. Her follow-up care with Dr. Thomas continued through January 8, 2013, when she was deemed to be at maximum medical improvement and was restricted to light duty work with limited looking up or down and a lifting restriction of 20 pounds. Dr. Thomas related Vickie’s disc injuries to the automobile accident, and she continued to experience neck pain through the time of the trial.

Vickie also experienced constant dizziness after the accident and was diagnosed with vertigo by Dr. Paul Gaudet, an otolar-yngologist, who related the vertigo to the accident. This condition persisted for about three years until resolving in 2012.

The parties stipulated that the medical expenses incurred by Vickie from the date of the accident through the trial total $139,938.08, although Allstate did not stipulate that these expenses were incurred as a result of the automobile accident.

The evidence established that at the time of the accident, Vickie owned and operated a tugboat business, H.P. Marine, L.L.C., which owned one tugboat. She was the only employee of the company and was responsible for loading supplies on |4the boat, tending to repairs, and ensuring that the necessary paperwork was com[210]*210pleted. She confirmed that it was a “physically demanding job” because of the packaging and loading of supplies for the boat. In 2008, she received $53,000.00 in income from the company; and in 2009, the year of the accident, she earned $45,000.00 in income through the date of her last check at the beginning of September, which equates to $5,625.00 per month, The company also paid the monthly notes for her vehicle and her husband’s truck in the respective amounts of $956.75 and $848.00, as well as Vickie’s automobile insurance, which at the time of trial was approximately $700.00 per month.

Following the accident, Vickie knew that her neck injury and vertigo prevented her from getting the boat ready for jobs, so she sold the boat in April of 2010, approximately 8 months after the accident. With no boat, the company had no source of income; so, according to Vickie, she was no longer able to earn her salary of $5,625.00 per month, nor was she able to receive her other benefits, namely the payment of the couple’s vehicle notes and insurance.

In support of the lost earnings claim, the plaintiffs introduced a report from a physical therapist, Donald Kinnard, who performed a functional capacity evaluation for Vickie in August of 2012 and concluded that it is unlikely that she would be able to tolerate the lifting and carrying tasks required for supplying a boat. Kinnard also stated that it is unlikely that Vickie would be able to tolerate extended sitting with her neck positioned for excessive reading. A vocational rehabilitation counselor, Thomas Meunier, evaluated Vickie and also issued a report in August of 2012 stating that Vickie was not capable of returning to her full duties as a tugboat owner, although she might be able to return to the job in some capacity if she hired additional employees to assist in the functions that she can no longer perform. Meunier also opined that Vickie had sustained a 20% loss of employment opportunity as a result of her injuries.

|fiIn defense of the lost earnings claim, Allstate countered with a report from Nancy Favaloro, a rehabilitation counselor who evaluated Vickie and concluded that it is likely that Vickie can return to work as a manager/owner of a tugboat company. Allstate also relied heavily on Vickie’s personal tax returns which reported significant losses for H.P. Marine, L.L.C. in 2009, 2007 and 2006. However, Vickie testified that the losses reported for the company were due to depreciation and the reinvestment of revenue into improvements in the tugboat, including new engines, extra parts, and basically rebuilding the boat.

With respect to the claim for penalties and attorney’s fees, the plaintiffs offered copies of the settlement drafts with the liability insurer together with three letters from plaintiffs’ counsel to Allstate’s counsel dated September 30, 2011, December 22, 2011, and May 30, 2012, respectively. The first letter relied upon the police report and Vickie’s deposition, medical records, and medical expenses as satisfactory proof of her loss in excess of the available liability insurance; however, the letter did not articulate or otherwise attempt to substantiate any claim for lost earnings.1 The second and third letters provided updated medical records and invoices but again made no attempt to quantify or substantiate a claim for lost earnings, except for a brief mention in the third letter that Vickie “will likely have permanent medium to light duty restrictions” according to a re[211]*211port from Dr. Thomas.

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Cite This Page — Counsel Stack

Bluebook (online)
148 So. 3d 205, 2013 La.App. 1 Cir. 2187, 2014 WL 3671789, 2014 La. App. LEXIS 1515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lemoine-v-mike-munna-llc-lactapp-2014.