Neal v. Wascom

218 So. 3d 129, 2016 La.App. 1 Cir. 1230, 2017 La. App. LEXIS 640
CourtLouisiana Court of Appeal
DecidedApril 12, 2017
Docket2016 CA 1230
StatusPublished

This text of 218 So. 3d 129 (Neal v. Wascom) 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
Neal v. Wascom, 218 So. 3d 129, 2016 La.App. 1 Cir. 1230, 2017 La. App. LEXIS 640 (La. Ct. App. 2017).

Opinion

CALLOWAY, J.

|2In this personal injury case, the defendants challenge the general damages awarded by the trial court to the plaintiff following a bench trial.

FACTS AND PROCEDURAL HISTORY

This case involves a traffic accident that occurred on December 9, 2013, when the Ford F-250, operated by the defendant, Justin Wascom, Jr., owned by his employer, Clean Water Opportunities, Inc, (“Clean Water”),2 and insured by Hallmark Specialty Insurance Company (“Hallmark Insurance”), rear-ended the Jeep Liberty owned and operated by the plaintiff, Ev-ette Neal.3 Mr. Wascom was driving the Ford F-250 eastbound on Interstate 12 in [131]*131Livingston Parish when he rear-ended Ms. Neal’s Jeep, causing her vehicle to hit the side concrete wall, leave the roadway, flip over, hit a tree, and come to rest in a canal.

Ms. Neal filed the instant suit against Mr. Wascom, Clean Water, and Hallmark Insurance, seeking damages for injuries to her neck, back, head, shoulders, legs, chest, sternoclavicular (“SC”) joint, collarbone, hands, and fingers allegedly sustained as a result of the automobile accident. A bench trial was conducted on March 15, 2016, on the issue of damages.4 At trial, the parties stipulated to liability and insurance coverage, that Ms. Neal’s medical expenses totaled $27,834.00, and that her lost wages totaled $4,576.00. Following trial, the trial court signed a final judgment on April 1, 2016, in favor of Ms. Neal and against Mr. Wascom and Hallmark Insurance in solido, awarding Ms. Neal: $700,000.00 in general damages; $27,800.34 in past medical expenses; $21,000.00 in future medicals for SC injections; $5,600.00 in future medicals for acromioclavicular (“AC”)5 injections; $426.79 for certified medical records and bills; $4,576.00 in lost wages; legal interest from the date of judicial demand until paid; all Rcosts of the proceedings; a $5,000.00 expert witness fee; and dismissed all of Ms. Neal’s claims against Clean Water, with prejudice.

Mr. Wascom and Hallmark Insurance now appeal, assigning error to the amount of general damages awarded to the plaintiff.

LAW AND DISCUSSION

The defendants argue the trial court abused its discretion in awarding Ms. Neal $700,000.00 for a partially dislocated SC joint, a strained shoulder, a strained neck, and a strained back. The defendants assert the accident merely aggravated Ms. Neal’s preexisting neck and shoulder injuries, that she only missed one month of work, and that she now has full range of motion in her shoulder and arm.

“General damages” involve mental or physical pain or suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle that cannot be measured definitively in terms of money. Boudreaux v. Farmer, 604 So.2d 641, 654 (La. App. 1 Cir.), writs denied, 605 So.2d 1373, 1374 (La. 1992). The primary objective of general damages is to restore the party in as near a fashion as possible to the state he was in at the time immediately preceding injury. Daigle v. U.S. Fidelity and Guar. Ins. Co., 94-0304 (La.App. 1 Cir. 5/5/95), 655 So.2d 431, 437.

Vast discretion is accorded the trier of fact in fixing general damage awards. La. C.C. art. 2324.1; Hollenbeck v. Oceaneering Int., Inc., 96-0377 (La.App. 1 Cir. 11/8/96), 685 So.2d 163, 172, writ denied, 97-0493 (La. 4/4/97), 692 So.2d 421. The discretion vested in the trier of fact is “great,” even vast, so that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La. 1993), cert. denied 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). The role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award but, rather, to [132]*132review the exercise of discretion by the trier of fact. Wainwright v. Fontenot, 2000-0492 (La. 10/17/00), 774 So.2d 70, 74. Before an appellate court can disturb the quantum of an award, the record must clearly reveal that the trier of fact abused its discretion. In order to make this determination, the reviewing court looks first to the individual circumstances of the injured plaintiff. Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La. 1993). Reasonable persons frequently disagree about the measure of general damages in a particular case. Youn, 623 So.2d at 1261. 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. Youn, 623 S.o.2d at 1261.

The nature, relative severity, and bodily extent of injuries are qualitative factors that must first be considered by the trier of fact in awarding general damages. The duration of a plaintiffs injury symptoms and the duration of treatment are relevant quantitative factors that must also be taken into account. See Gillmer v. Parish Sterling Stuckey, 2009-0901 (La. App. 1 Cir. 12/23/09), 30 So.3d 782, 788; Thibodeaux v. USAA Cas. Ins. Co., 93-2238 (La.App. 1 Cir. 11/10/94), 647 So.2d 351, 3571 Only after analysis of the facts and circumstances peculiar to the particular case and plaintiff may an appellate court conclude that the award is inadequate or excessive. See Theriot, 625 So.2d at 1340. And, it is only after such a threshold determination of an abuse of discretion is made that the appellate court should examine prior awards for similar injuries to modify, the award within the range of reasonable discretion. See Reck v. Stevens, 373 So.2d 498, 500-01 (La. 1979); Coco v. Winston Indus., Inc., 341 So.2d 332, 335-36 (La. 1976).

The record establishes that Ms. Neal was forty-seven years old at the time of the accident. Ms. Neal had been involved in one motor vehicle accident prior to the December 2013 accident, which occurred on March 2, 2005, in which she suffered injuries to her neck; however, she made no Claims for bodily injury or property damage as a result of that accident.

Ms. Neal’s medical records were introduced at trial. Prior to the December 9, 2013 accident, Ms. Neal treated with Lallie Kemp Regional Medical Center. Following the accident at issue herein, Ms. Neal treated with Our Lady of the Lake Regional Medical Center in Baton Rouge, Louisiana, the Baton Rouge Clinic, Dr. F. Allen Johnston at the Louisiana Ortho-paedic and Spine Institute, and Advanced Therapy Solutions.

Immediately following the accident, Ms. Neal was transported by ambulance to the emergency room at Our Lady of the Lake Regional Medical Center. The notes from the emergency room indicate that Ms. Neal presented with left shoulder pain, a laceration to her left scalp, blunt trauma to her left shoulder, and moderate bleeding. The emergency room physician diagnosed Ms. Neal with a head, injury, scalp laceration, head contusion, and contusion of the left shoulder. Ms. Neal received five staples in her scalp to close the wound. The physician instructed Ms. Neal to schedule a follow up visit with the clinic in two to three days but immediately to return to the emergency room if her symptoms worsened.

Dr. Johnston,6 the plaintiff, and her mother, Ms. Cook, testified at trial. Dr. Johnston testified that he first saw Ms. [133]

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218 So. 3d 129, 2016 La.App. 1 Cir. 1230, 2017 La. App. LEXIS 640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neal-v-wascom-lactapp-2017.