Lewis v. Progressive Paloverde Insurance Co.

125 So. 3d 581, 13 La.App. 3 Cir. 617, 2013 WL 5928202, 2013 La. App. LEXIS 2303
CourtLouisiana Court of Appeal
DecidedNovember 6, 2013
DocketNo. 13-617
StatusPublished
Cited by3 cases

This text of 125 So. 3d 581 (Lewis v. Progressive Paloverde Insurance 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
Lewis v. Progressive Paloverde Insurance Co., 125 So. 3d 581, 13 La.App. 3 Cir. 617, 2013 WL 5928202, 2013 La. App. LEXIS 2303 (La. Ct. App. 2013).

Opinion

JOHN D. SAUNDERS, Judge.

11 Defendants appeal a trial court judgment in favor of Plaintiffs, Eternity Lewis and Martha Lewis, in which the trial court found Defendants liable for damages arising out of a motor vehicle accident and awarded Plaintiffs $15,000 for general damages and $2,304.01 for medical specials. The trial court awarded Martha Lewis $2,000 for loss of consortium. We affirm as amended, reducing the award of general damages from $15,000 to $7,500.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Eternity Lewis, and Defendant, Kassie Jacobs, were involved in a motor vehicle accident in a grocery store parking lot on September 6, 2011. Both drivers were backing out of adjacent parking spots with their vehicles back-to-back. Eternity testified that when Ms. Jacobs’s car came into contact with her car, her car was stopped. She testified that her head hit the steering wheel while her shoulder and right knee hit the dashboard. She had no passengers in her car. On September 13, 2011, she visited Dr. Robert K. Rush, M.D., who diagnosed her with cervical strain, lumbar strain, right shoulder trauma, right sacroiliac strain, and right knee trauma. She underwent treatment consisting of medication and physical therapy. Dr. Rush testified at trial that on October 12, 2011, Eternity “had experienced resolution of her neck, back, and knee pain, no headaches, completed the course of therapy, [and] was released from physical therapy.” Dr. Rush also testified it was possible that she would have future “flare ups” after this resolution, but Eternity has not sought treatment since. Eternity testified that prior to the accident she had no problems with her right knee, shoulder, or headaches. Her medical bills totaled $2,304.01.

At the time of the accident, Eternity was seventeen years old; at the time of the trial court’s judgment she was eighteen. Eternity’s mother, Martha Lewis, filed |2suit on Eternity’s behalf against Ms. Jacobs, Ms. Jacobs’s liability insurer Progressive Paloverde Insurance Company (hereinafter “Progressive”), and the Lewis family’s underinsured/uninsured motorist insurer United Services Automobile Association (hereinafter “USAA”).

Martha also asserted her own loss of consortium claim against all Defendants. Martha testified at trial that she is being treated for cancer and that she depends on all three of her children for household help. She testified that Eternity performed cleaning tasks around the house every other night. She further testified that after the accident, Eternity could not vacuum because it caused back pain and that two months passed before Eternity could get back to her regular routine of chores.

After a bench trial on September 21, 2012, the trial court found Ms. Jacobs was solely at fault for the accident. The court awarded Plaintiffs $15,000 in general damages, $2,304.01 in medical specials, and $2,000 for loss of consortium. The Progressive policy’s limit is $15,000 per person/$30,000 per occurrence, and the USAA policy would activate once the Progressive policy’s limit had - been reached. The USAA’s policy’s limit is also $15,000/$30, 000. All Defendants appeal the judgment.

[583]*583ASSIGNMENTS OF ERROR

On appeal, Defendant USAA asserts the following assignments of error:

1. The general damage award of $15,000 for soft tissue injuries that completely resolved within 36 days of the accident was excessive and not supported by the evidence.
2. The loss of consortium award of $2,000 to the plaintiff mother was not supported by the evidence and should be reversed in toto.
3. The trial court’s judgment incorrectly made the damage awards jointly to the mother and daughter plaintiffs.

Defendants, Kassie Jacobs and Progressive, assert the following assignments |3of error:

1. The thirty six (36) days of symptoms which improved over the course of the thirty six (36) days for a soft tissue injury does not support a general damage award of $15,000.
2. A loss of Consortium Award of $2,000 to the mother of the plaintiff when the plaintiff had less than thirty six (36) days of symptoms is not supported by the evidence.
3. The trial court judgment is erroneously worded and needs to segregate the claims of both plaintiffs.

LAW AND ANALYSIS

General Damages

General damages “may not be fixed with pecuniary exactitude; instead, they ‘involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or life-style which cannot be definitely measured in monetary terms.’ ” Duncan v. Kansas City S. Ry. Co., 00-66 (La.10/30/00), 773 So.2d 670, 682 (quoting Keeth v. Dep’t of Pub. Safety & Transp., 618 So.2d 1154, 1160 (La.App. 2 Cir.1993)).

This court has summarized the standard of review for an award of general damages as follows:

The discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. 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 reduce the award.
Only after an abuse of discretion is disclosed by an articulated analysis of the facts is an examination of prior awards in similar cases proper; an abusively low award is raised to the lowest amount the trier of fact could have reasonably awarded, while an abusively high award is reduced to the highest amount the trier of fact could have reasonably awarded. The proper procedure for examining whether an award is excessive is to determine whether the amount can be supported under the interpretation of the evidence, most favorable to the plaintiff, which reasonably could have been made by the trier of fact.
LBefore a trial court’s award of damages can be questioned as inadequate or excessive, the reviewing court must look first, not to prior awards, but to the individual circumstances of the instant case. A damage award should not be disturbed by the reviewing court absent a showing of a clear abuse of discretion.

Plaissance v. McDonald, 03-1043, p. 4 (La.App. 3 Cir. 2/4/04), 865 So.2d 1004, 1008, writ denied, 04-585 (La.4/23/04), 870 So.2d 305 (quoting Hunt v. Long, 33,395, pp. 4-5 [584]*584(La.App. 2 Cir. 6/21/00), 763 So.2d 811, 815-16 (citations omitted)); see also La. Civ.Code art. 2324.1.

Defendants challenge the award of $15,000 in general damages, arguing the evidence cannot support this amount and that it is therefore excessive. We agree. With all evidence interpreted in Eternity’s favor, it is clear from the record that Eternity experienced only slight inconvenience and pain and suffering for which physical therapy was a fast and effective remedy. She was unable to do chores in order to assist her mother and bore the inconvenience of physical therapy. She experienced enough physical pain to warrant pain medication although her symptoms ceased completely in just over one month.

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125 So. 3d 581, 13 La.App. 3 Cir. 617, 2013 WL 5928202, 2013 La. App. LEXIS 2303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-progressive-paloverde-insurance-co-lactapp-2013.