Montgomery v. Opelousas General Hosp.

546 So. 2d 621, 1989 La. App. LEXIS 1372, 1989 WL 71211
CourtLouisiana Court of Appeal
DecidedJune 28, 1989
Docket87-492
StatusPublished
Cited by18 cases

This text of 546 So. 2d 621 (Montgomery v. Opelousas General Hosp.) 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
Montgomery v. Opelousas General Hosp., 546 So. 2d 621, 1989 La. App. LEXIS 1372, 1989 WL 71211 (La. Ct. App. 1989).

Opinion

546 So.2d 621 (1989)

Jackie MONTGOMERY, et ux., Plaintiffs-Appellees,
v.
OPELOUSAS GENERAL HOSPITAL, et al., Defendants-Appellants.

No. 87-492.

Court of Appeal of Louisiana, Third Circuit.

June 28, 1989.

*622 Kermit A. Doucet, Lafayette, for plaintiffs-appellees.

Watson, Blanche, Wilson & Posner, Katherine Gilmore, Ambrose Ramsey, S. Alfred Adams, Baton Rouge, for defendants-appellants.

Before GUIDRY, FORET and DOUCET, JJ.

GUIDRY, Judge.

This is a medical malpractice suit instituted by Jackie Montgomery and her husband, J.L. Montgomery, against Robert Sullivan, a medical technologist, Opelousas General Hospital, and the Louisiana Association of Hospitals Trust Fund (the Louisiana Patients' Compensation Fund). In our original opinion reported at 529 So.2d 52 (La.App. 3rd Cir.1988), we reversed the judgment of the trial court and ordered plaintiffs' suit dismissed with prejudice. The Supreme Court of Louisiana granted a writ of certiorari, 532 So.2d 164 (La.1988), and in an opinion dated March 13,1989, 540 So.2d 312, reversed our judgment, reinstated the trial court's finding as to liability and remanded the matter to this court for consideration of appellants' argument that the trial court's damage award is excessive.

QUANTUM

The trial court awarded Jackie Montgomery $200,000.00 in damages and $5,000.00 in medical expenses. J.L. Montgomery was awarded $8,000.00 for loss of consortium. Appellants do not challenge the award for medical expenses but contend that the damage awa, rd to Jackie Montgomery and that to J.L. Montgomery are clearly excessive.

"Before an appellate court can disturb a quantum award, the record must clearly reveal that the trier of fact abused its discretion in making the award. An award made in the trial court may not be modified unless it is unsupported by the record. The appellate question is not whether a different award may have been more appropriate, but whether the trial court's award can be reasonably supported by the record. Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1976); Bitoun v. Landry, 302 So.2d 278 (La.1974); Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971); Black v. Ebasco Services, Inc., 411 So.2d 1159 (La.App. 1st Cir.1982); Greene v. Wright, 365 So.2d 551 (La.App. 1st Cir. 1978). Moreover, the appellate function in reviewing quantum is limited to raising inadequate awards to the lowest amount the trial court could have reasonably awarded, and lowering excessive awards to the highest amount the trial court could have reasonably awarded. Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston *623 Industries, supra; Alexander v. Leger, 423 So.2d 731 (La.App. 3d Cir. 1982); Greene v. Wright, supra. In the final analysis, the damages due in a given case must reflect the facts and circumstances of that case. Alexander v. Leger, supra; Wilkinson v. Hartford Accident & Indemnity Co., 421 So.2d 440 (La.App. 3d Cir.1982); Profit v. Linn, 346 So.2d 253 (La.App. 1st Cir. 1977).

General damages are those which may not be fixed with pecuniary exactitude; they instead involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or lifestyle which cannot be definitively measured in monetary terms. Boswell v. Martin Lumber Co., Inc., 363 So.2d 506 (La.1978); Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La. 1974)."

Morgan v. Willis-Knighton Medical Center, 456 So.2d 650 (La.App. 2d Cir.1984).

DAMAGE AWARD TO JACKIE MONTGOMERY

Inasmuch as the jury did not specify how much of the damage award was for economic loss and how much was for general damages, we will attempt to make that distinction in order to aid in our evaluation of her damage award.

At the time plaintiff suffered the injury to the median nerve of her right arm (February 17, 1984), she was employed as a school bus driver by Washington Bus, Incorporated (WBI). Mrs. Montgomery began her employment with WBI in September of 1981 and was paid at the rate of $150.00 per month. In October of 1982, her salary was raised to $200.00 per month (for nine months out of the year) and it remained at that level until she resigned. While the record is silent as to the date of her resignation, a letter from Marvin Anderson, secretary/treasurer of WBI, established that plaintiff was still employed by WBI on April 18, 1986.

At trial, Mrs. Montgomery testified that she can no longer drive a school bus. She stated that she can no longer lift heavy objects or engage in hard work as such activities cause pain in her lower right arm. Mrs. Montgomery stated that besides driving a school bus, her past work experience included working in grocery stores and similar establishments plus several years of clerical experience at Opelousas General Hospital.

Plaintiff presented two witnesses who testified that they offered Mrs. Montgomery work in grocery store type settings after her accident. Appellee claims that she turned down one of the jobs because she knew she couldn't do it and that she tried the other job for two days, but had to quit because she was physically unable to meet the demands of the position. Allegedly, either position would have paid her $4.50 to $5.00 per hour. The only evidence plaintiff presented relating to past grocery store work was a 1981 W-2 form from St. Amand's Grocery showing total wages for the year of $2,950.51.

When questioned concerning her ability to perform clerical work, Mrs. Montgomery replied that she had not applied for a clerical position, even though she was qualified and physically able to handle a clerical job. She stated that she was just not interested in a clerical position such as she previously held at Opelousas General Hospital.

"Awards for loss of 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. Robinson v. Graves, 343 So.2d 147 (La.1977); Edwards v. Sims, 294 So.2d 611 (La.App.1974); Viator v. Gilbert, 253 La. 81, 216 So.2d 821 (1968); Holmes v. Texaco, Inc., 422 So.2d 1302 (La.App. 5th Cir.1982); Black v. Ebasco Services, Inc., 411 So.2d 1159 (La.App. 1st Cir.1982); Payton v. Travelers Ins. Co., 373 So.2d 1324 (La.App. 4th Cir.1979).

A number of factors must be analyzed in determining loss of future income, including *624 the plaintiff's physical condition before and after his injury; his past work record and the consistency thereof; the amount plaintiff probably would have earned absent the injury complained of; and the probability he would have continued to earn wages over the balance of his working life. Viator v. Gilbert, supra; Payton v. Travelers Ins. Co., supra. It is well established that a loss of future income award is not merely predicated upon the difference between a plaintiffs earnings before and after a disability injury. Such an award is predicated, more strictly considered, upon the difference between a plaintiffs earning capacity before and after a disabling injury. Folse v. Fakouri, 371 So.2d 1120 (La.1979); Ward v. Louisiana & Arkansas Railway Co., 451 So.2d 597 (La.App. 2d Cir.1984); Green v. Farmers Ins. Co., 412 So.2d 1136 (La.App.

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546 So. 2d 621, 1989 La. App. LEXIS 1372, 1989 WL 71211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montgomery-v-opelousas-general-hosp-lactapp-1989.