Nowell v. State Farm Mut. Auto. Ins. Co.

576 So. 2d 77, 1991 La. App. LEXIS 344, 1991 WL 25803
CourtLouisiana Court of Appeal
DecidedFebruary 27, 1991
Docket22186-CA
StatusPublished
Cited by8 cases

This text of 576 So. 2d 77 (Nowell v. State Farm Mut. Auto. Ins. 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
Nowell v. State Farm Mut. Auto. Ins. Co., 576 So. 2d 77, 1991 La. App. LEXIS 344, 1991 WL 25803 (La. Ct. App. 1991).

Opinion

576 So.2d 77 (1991)

Carl Edward NOWELL, Jr., et ux., Plaintiffs-Appellants,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al., Defendants-Appellees.

No. 22186-CA.

Court of Appeal of Louisiana, Second Circuit.

February 27, 1991.
Rehearing Denied March 28, 1991.
Writ Denied May 31, 1991.

*78 Troy E. Bain and Walker, Tooke, Perlman, Lyons and Greer by Laurie W. Lyons, Shreveport, for plaintiffs-appellants.

Lunn, Irion, Johnson, Salley & Carlisle by Marshall R. Pearce, Shreveport, for defendants-appellees Carl Nowell, III and State Farm Ins.

Bodenheimer, Jones, Klotz & Simmons by Frank H. Thaxton, III and Mary L. Coon Blackley, Shreveport, for defendants-appellees Cuestas, Inc. and Guaranty Nat. Ins. Co.

Before MARVIN, C.J., and NORRIS and BROWN, JJ.

*79 MARVIN, Chief Judge.

In a wrongful death and survival action arising out of a one-car accident, the mother and father of the decedent, their 25-year-old son, appeal a judgment based on a jury verdict. Appellants seek to increase the amounts awarded them and to reduce the allocation of 30 percent of the fault to the decedent.

The decedent, Mark Nowell, was a passenger in the car owned and being driven by his older brother, Carl Nowell. In answer to interrogatories, the jury also allocated 45 percent of the fault to Carl Nowell, who earlier had consumed some beer and who was speeding when he lost control of his car, and 25 percent of the fault to the ambulance company that negligently handled the critically injured decedent at the accident scene.

In addition to medical and funeral expenses, the judgment awarded the parents $10,000 for the decedent's conscious pain and suffering and general damages of $20,000 to the father and $40,000 to the mother of decedent. Appellants also complain of the manner in which the trial court fixed and assessed costs.

We amend the judgment to increase the wrongful death awards to each parent and re-allocate fault solely between defendants.

FACTS

The decedent, Mark Nowell, lived in the family residence of his older brother, Carl Nowell III, in Longview, Texas, where Carl had helped Mark find gainful employment. On the morning of May 31, 1982, Carl drove his wife and children and Mark to Coushatta to attend a gathering of Carl's wife's family. There both Carl and Mark drank one or more beers during the afternoon. An argument between Carl and his wife caused Carl to leave his wife and children at the gathering and to drive back to Longview, about a two-hour drive. Mark accompanied him. Neither drank anything on the trip to Longview.

After arriving in Longview around 8:00 p.m., Carl and Mark parted for three or four hours. Carl drank "a couple of beers" while being tattooed in a Longview establishment before he returned home about midnight. There he drank a beer in Mark's presence and discussed with Mark his having left his wife and children in Coushatta. He persuaded Mark to again accompany him and the two of them left from Longview for Coushatta, where Carl intended to "make up" with his wife, about 1:00 a.m. June 1.

While on La. Hwy. 1 almost nine miles south of the city limits of Shreveport, Carl apparently swerved his car on the highway and lost control at about 2:45 a.m. The time and distance from Longview does not indicate that Carl had been speeding during the return trip toward Coushatta. The state trooper who investigated the accident estimated that Carl's car was traveling at a high speed, perhaps 90 mph, when it veered off and back onto the paved highway and then into a cotton field where it rolled over several times before coming to a stop. Carl's wrecked automobile was found some 585 feet away from the point where it left the paved highway. Mark was propelled from the car which rolled over him, crushing and seriously injuring him. Carl was also thrown from the car. His injuries, less serious than Mark's, limited his memory of the accident to only a vague and general recall of his swerving and losing control of his car.

The state trooper arrived at the scene at 3:18 a.m. and immediately radioed for an ambulance. Responding to the trooper's radio call, two attendants in an ambulance of the defendant ambulance company arrived from Shreveport at the scene at 3:36 a.m., within 18 minutes of the trooper's call. The ambulance attendants used critical time arguing with each other about the best way to move and handle Carl and Mark, because one of the two backboards routinely stored in the ambulance had not been returned to the ambulance from a Shreveport hospital where they had made an earlier delivery. Eventually and while awaiting the arrival of a second ambulance with additional backboards, the one backboard was used to support Mark who was then placed on the bench in the ambulance. Mark, unfortunately, was not strapped or *80 otherwise secured to the bench even though he had been "combative," waving his extremities while the attendants treated and moved him. When he was left alone and unsecured on the bench Mark fell face down on the floor of the ambulance and began coughing up blood, a symptom he had not before demonstrated. The attendants returned him to the bench, strapping and securing him on this occasion.

As the second ambulance arrived, the ambulance containing Mark departed the scene at 4:44 a.m. Mark's ambulance arrived at the Schumpert hospital emergency room at 5:40 a.m., more than two hours after its arrival at the accident scene. Mark went into cardiac arrest at 6:10 a.m. and was pronounced dead at 7:01 a.m. on June 1, 1982.

Mark's injuries included a fractured leg, seven fractured ribs, one of which was dislocated, and lung punctures. Dr. George McCormick, a forensic pathologist who later was elected Caddo Parish coroner, opined that Mark's death was caused by the loss of blood from two major lung punctures. While Dr. McCormick agreed that Mark may have had minor or slight lung punctures before he fell from the ambulance bench, he opined that the minor punctures caused very little or no loss of blood. He concluded that the blood loss was produced from one or more of the broken ribs causing the major punctures when Mark rolled off the ambulance bench and fell to the floor.

FAULT OF DEFENDANTS

We have no difficulty concluding that the jury correctly found both defendants at fault. The record supports the conclusion that Carl had been drinking and was driving too fast and lost control of his automobile. The record also supports the conclusion that the ambulance attendants did not exercise reasonable care because the second backboard was not in the ambulance, they wasted critical time at the scene and otherwise improperly administered treatment, and they did not secure Mark to the bench on the first occasion.

The jury could have accepted the testimony of Dr. McCormick that the neglect of the ambulance attendants substantially contributed to the cause of Mark's death. This record supports the conclusion that they neglected to timely and properly treat, secure, and transport Mark and that this combined neglect was a substantial cause of Mark's death.

The defendant ambulance company was a successive tortfeasor to Carl Nowell. Garrett v. Safeco Ins. Co., 433 So.2d 209 (La.App. 2d Cir.1983). Each tortfeasor, however, is solidarily liable to the injured or deceased victim. Weber v. Charity Hosp. of Louisiana, 475 So.2d 1047 (La. 1985); Maxwell v. Soileau, 561 So.2d 1378 (La.App. 2d Cir.1990), writ denied.

MARK'S FAULT

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Bluebook (online)
576 So. 2d 77, 1991 La. App. LEXIS 344, 1991 WL 25803, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nowell-v-state-farm-mut-auto-ins-co-lactapp-1991.