McDowell v. Diggs

264 So. 3d 489
CourtLouisiana Court of Appeal
DecidedOctober 3, 2018
Docket2017 CA 0755; 2017 CW 0595
StatusPublished

This text of 264 So. 3d 489 (McDowell v. Diggs) 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
McDowell v. Diggs, 264 So. 3d 489 (La. Ct. App. 2018).

Opinion

HOLDRIDGE, J.

In this personal injury action, plaintiff, Steven McDowell, challenges the jury's allocation of 50% fault to him, the amount of the jury's past medical expense award, the jury's failure to award future medical expenses, and the jury's failure to award general damages after entering an award for past medical expenses. In this appeal and by way of supervisory writs, plaintiff challenges the trial court's denial of his motion for a new trial. For the reasons that follow, we affirm the fault allocation, the award of past medical expenses, and the denial of an award for future medical expenses. We find legal error in the jury's failure to award general damages, and upon conducting a de novo review of the record, we enter an award for general damages. Having corrected the jury's legal error in failing to award general damages, we affirm the denial of the motion for a new trial and deny the application for supervisory writs challenging that ruling.

FACTUAL AND PROCEDURAL BACKGROUND

On the morning of June 5, 2013, at approximately 6:00 a.m., Mr. McDowell was driving a 1994 GMC Sierra truck westbound on Hooper Road toward its intersection with Joor Road in East Baton Rouge Parish. Mr. McDowell's vehicle was travelling in the left lane of the two-lane highway, while Russell Diggs, Sr. was driving his 2000 Dodge 6000 truck westbound on Hooper in the outside, or right lane. The accident occurred near the end of a merge area where Hooper becomes a one-lane street for westbound traffic and vehicles in the right lane must merge into the left lane. As Mr. Diggs attempted to merge onto the main travel lane occupied by Mr. McDowell's vehicle, the left rear of Mr. Diggs' truck was struck by the right front of Mr. McDowell's truck.

On March 28, 2014, Mr. McDowell filed this lawsuit seeking damages against Mr. Diggs, his liability insurer, United Services Automobile Association (sometimes collectively referred to as "USAA"), and Liberty Mutual Insurance Company, Mr. McDowell's underinsured motorist carrier. Mr. McDowell sought to recover damages for past, present, and future physical pain and suffering, mental anguish, loss of enjoyment of life, and medical expenses. USAA disputed liability and the nature and the extent of damages allegedly suffered by Mr. McDowell as a result of the collision, maintaining that Mr. McDowell had pre-existing medical conditions which were not caused or aggravated by the accident.

The case was tried before a 12-person jury. Following the conclusion of the trial, *493during which medical evidence was presented by both sides, the jury rendered a verdict finding that Mr. Diggs and Mr. McDowell were negligent in causing the June 5, 2013 collision. The jury allocated 50% fault to Mr. Diggs and 50% fault to Mr. McDowell. The jury then found that Mr. McDowell proved by a preponderance of the evidence that he sustained injuries as a result of the collision. When asked to itemize damages, the jury entered a single award of $8,000.00 for past medical expenses. The jury entered $0.00 in each of the blanks on the jury verdict form for future medical expenses, past pain and suffering, future pain and suffering, loss of enjoyment of life, and mental anguish/emotional distress. The jury verdict was unanimous. On December 15, 2016, the trial court signed a final judgment in accordance with the jury verdict.

Mr. McDowell filed a motion for a new trial, contending that it was legal error for the jury to award special damages without awarding damages for pain and suffering. Mr. McDowell also claimed that the medical expense award was excessively low. The trial court denied the motion for new trial.

Mr. McDowell filed an application for supervisory writs challenging the trial court's denial of his motion for a new trial. The writ application was referred to this panel. McDowell v. Diggs, 2017-0595 (La. App. 1 Cir. 7/24/17) (unpublished writ action). Mr. McDowell also appealed the December 15, 2016 judgment. In this appeal, Mr. McDowell contests: (1) the jury's allocation of 50% fault to him; (2) the jury's failure to award him the full amount of past medical expenses he incurred and its failure to award future medical expenses; (3) the jury's award of past medical expenses without an award of general damages; and (4) the trial court's failure to grant his motion for a new trial after the jury committed legal error by awarding special damages without accompanying general damages.

FAULT ALLOCATION

In his first assignment of error, Mr. McDowell contends that the jury committed manifest error in allocating 50% fault to him, insisting that the record contains no evidence that he was negligent in causing the collision. He asserts that Louisiana law places a greater burden on Mr. Diggs, as the motorist changing lanes, to demonstrate that he changed lanes only after determining that it was safe to do so, and that Mr. Diggs breached his duty to determine that it was safe to merge into Mr. McDowell's lane of travel. Mr. McDowell maintains that his knowledge of Mr. Diggs' presence in the left lane does not sufficiently establish his fault in this matter; he urges that aside from Mr. Diggs' pure assumption that he sped up before Mr. Diggs merged into the left lane, the record contains no evidence of negligence on his part. He argues that Mr. Diggs' speculation alone does not require affirmance of the jury's allocation of fault, and asks this court to reverse that allocation and amend the judgment to more accurately reflect the evidence contained in the record.

A determination of negligence or fault is a factual determination. In order to reverse a factual determination by the trier of fact, this court must find that a reasonable basis does not exist for the finding and that the record establishes that the finding is clearly erroneous. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La. 1993). When factual findings are based on credibility determinations the manifest error standard of review demands great deference to the trier of fact's findings.

*494Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous. Id.

The allocation of comparative fault is also a factual determination; therefore, the trier of fact's fault allocation is owed deference by this court. Harris v. Delta Development Partnership, 2007-2418 (La. App. 1 Cir. 8/21/08), 994 So.2d 69, 74. In determining percentages of fault, the trier of fact must consider both the nature of the conduct of each party at fault and the causal relation between the conduct and the damages claimed. Watson v. State Farm Fire and Casualty Insurance Co., 469 So.2d 967, 974 (La. 1985).

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Bluebook (online)
264 So. 3d 489, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdowell-v-diggs-lactapp-2018.