STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 17-608
PAMELIA ELMER VILLA, ET AL.
VERSUS
GEICO CASUALTY INSURANCE CO., ET AL.
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2014-396 HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, John E. Conery, D. Kent Savoie, Van H. Kyzar, Judges.
Conery, J., concurs in part and dissents in part and assigns reasons.
REVERSED IN PART; AFFIRMED AS AMENDED. L. Paul Foreman William S. Joyner Raggio, Cappel, Chozen & Berniard 1011 Lakeshore Drive, Suite 500 Lake Charles, LA 70601 (337) 436-9481 COUNSEL FOR DEFENDANT/APPELLANT: GEICO General Insurance Company
Stephen R. Barry K.E. Libby Heinen Barry & Company, LLC 405 West Main Street Lafayette, LA 70501 (337) 237-2889 COUNSEL FOR DEFENDANT/APPELLANT: Marie Matte
Russell J. Stutes, Jr. Jody Lavergne Jeanette Dewitt-Kyle Stutes & Lavergne, L.L.C. 600 Broad Street Lake Charles, LA 70601 (337) 433-0022 COUNSEL FOR PLAINTIFF/APPELLANT: Pamelia Elmer Villa EZELL, Judge.
Pamela Villa appeals a trial court judgment awarding her damages for
injuries she sustained in an automobile accident. On appeal, she claims that the
jury’s award of damages was inadequate. She also claims that the trial court erred
in failing to take corrective action because defense counsel violated a stipulation
and argued to the jury that Defendant, Marie Matte, would have to personally pay
the judgment.
Defendants, Ms. Matte and GEICO General Insurance Company, also
appealed the trial court judgment. Ms. Matte claims the trial court erred in
allowing Ms. Villa to assert a lost wage claim and in allowing an optometrist to
testify regarding her need for surgery.
GEICO claims that the trial court erred in interpreting La.R.S. 22:1266 to
impose a burden of proving delivery of notices of cancellation for nonpayment
when proof of mailing is established and the effective date of cancellation is more
than ten days after the date of mailing.
FACTS
On December 10, 2013, Ms. Villa was injured when her vehicle was struck
by a vehicle driven by Ms. Matte, who ran a stop sign. She was transferred to
Lake Charles Memorial Hospital by ambulance. Upon admission to the emergency
room, Ms. Villa was treated by Dr. Thomas Axelrad. According to medical
testimony and records, Ms. Villa suffered a head injury, worsening of neck pain, a
displaced sternum fracture with three rib fractures, three herniated lumbar discs, a
large hematoma on her right hip, a sprain of the left knee, a sprain and cartilage
loss in the right knee, an avulsion fracture of her left ankle, and bruising and
swelling of the right ankle. Additionally, Ms. Villa claimed that the deployment of the air bag, which hit her in the face, caused the lens implant in her right eye to
shift, necessitating the need for surgery to replace the lens.
Ms. Villa was hospitalized for four days, where she was placed on a Foley
catheter and given Morphine for pain. Dr. Axelrad testified that Dilaudid was later
prescribed to Ms. Villa because her pain was so intense. Upon her release from the
hospital, Ms. Villa slept in a recliner at her house. Ms. Villa was dependent on
others to take care of her, her house, and her yard. Three months after the accident,
Ms. Villa returned to work at her family’s business, Elmer’s Radiator Shop.
Ms. Villa filed suit against Ms. Matte and GEICO on February 11, 2014. A
trial before a jury on the issue of damages was held on December 5-7, 2016. The
jury found that Ms. Villa suffered damages as a result of the accident and awarded
damages in the following amounts: 1) $32,500.00 for past and future pain and
suffering; 2) $4,000.00 for past and future mental anguish; 3) $1,000.00 for past
and future loss of enjoyment of life; 4) $45,740.00 for medical expenses; and 5)
$6,480.00 for lost wages.
On December 8, 2016, a bench trial was held on the issue of whether
GEICO provided coverage to Ms. Matte for the accident at issue. Following trial
on the issue, the trial court ruled that that even though there was sufficient
evidence that GEICO mailed notice of cancellation, GEICO failed to provide the
requisite ten-day notice as required by the law. Therefore, the policy issued by
GEICO provided coverage for this accident.
Judgment in this matter was signed on March 13, 2017. Ms. Villa, Ms.
Matte, and GEICO all appealed the judgment.
2 IMPROPER CLOSING ARGUMENT
In her first assignment of error, Ms. Villa argues that Ms. Matte’s counsel
improperly referred to a personal judgment against Ms. Matte and her inability to
pay it when the parties stipulated in open court that no one was allowed to suggest
to the jury that Ms. Matte would have to personally pay the judgment. Ms. Villa
argues that the impact of this argument was prejudicial, which the trial court failed
to correct after her counsel objected. Ms. Villa argues that this requires us to
review the jury’s award using a de novo standard. Ms. Villa cites Rodriguez v.
Taylor, 468 So.2d 1186 (La.1985), for the proposition that a defendant cannot
argue the inability to pay as an excuse to avoid full accountability in a personal
injury case.
The trial court has great discretion in regulating and controlling the opening
and closing arguments to a jury within proper bounds, and its rulings will not be
reversed unless they constitute an abuse of discretion. Melancon v. Lafayette Ins.
Co., 05-762 (La.App. 3 Cir. 3/29/06), 926 So.2d 693, writs denied, 06-974, 06-
1006 (La. 6/16/06), 929 So.2d 1291, 1293. “[I]mproper statements by counsel
must have influenced the jury and contributed to its verdict to constitute reversible
error.” Id. at 706.
Prior to trial, the parties discussed some housekeeping matters. Both
attorneys agreed that there would be no mention that there was or was not
insurance coverage. In closing argument, Ms. Matte’s counsel stated: “[W]hat was
that number he put up there, $300,000. Because they don’t want you to add it all
up. When you add it all up, that is an astronomical amount of money to ask Ms.
Matte to pay for this.” At this point, counsel for Ms. Villa objected.
3 Although this remark does not specifically refer to Ms. Matte’s ability to pay
a judgment, it comes very close. It infers that the amount of damage requested is a
lot for Ms. Matte to personally pay as opposed to being a large amount of money in
damages based on the injuries Ms. Villa received in the accident. We agree with
the trial court that this remark was not prejudicial enough at this point to admonish
the jury. The trial court did admonish counsel to watch his statements in the future.
We find no abuse of discretion in the trial court’s failure to admonish the jury.
EXPERT TESTIMONY
We will next address Ms. Matte’s argument on appeal that the trial court
erred in allowing Ms. Villa’s optometrist to testify regarding her need for cataract
revision surgery. The lens transplant surgery was performed by Dr. Charles
Thompson, an ophthalmologist. As an optometrist, Dr. Keith Menard is not
qualified to perform this surgery. Therefore, Ms. Matte argues Dr. Menard should
not have been allowed to testify in lieu of Dr. Thompson regarding Ms. Villa’s
need for lens replacement surgery as a result of the accident.
In determining whether to allow a witness to testify as an expert, the trial
court is afforded wide discretion, and its determination will not be disturbed on
appeal unless clearly wrong. Marshall v. Boydston, 09-1137 (La.App. 3 Cir.
3/17/10), 33 So.3d 438, writ denied, 10-881 (La. 6/25/10), 38 So.3d 339. If
“scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue”, a witness “qualified as an
expert by knowledge, skill, experience, training, or education may testify [thereto]
in the form of an opinion or otherwise.” Id., at 443 (quoting La.Code Evid. art.
702). Generally, the fact that a medical doctor is not a specialist in a medical field
does not affect the admissibility of his testimony but only applies to the effect or
4 the weight be given to such testimony. Marshall, 33 So.3d 438; See also Sattler v.
Hammond, 93-1227 (La.App. 3 Cir. 5/4/94), 640 So.2d 570, writ denied, 94-1418
(La. 9/16/94), 642 So.2d 198.
Dr. Menard testified that an optometrist’s primary job is to assess the visual
and health status of a patient’s eye and manage and treat that visual health status in
whatever way is deemed necessary, including recommending procedures and
giving referrals for consults for the procedures. On cross-examination about his
qualifications, the jury heard that while Dr. Menard can make a decision that a
patient needs surgery, Dr. Menard agreed that he is not allowed to perform the type
of surgery Ms. Villa required.
After qualifying as an expert optometrist, Dr. Menard explained to the jury
that he first started treating Ms. Villa in April 2011. Her history indicated that she
had a cataract exchange intraocular lens implant in her right eye in 2009. The lens
implant did not attach well and stay centered. As a result, she developed some
chronic inflammation. Dr. Menard testified that he had control of the situation
with eye drops so that Ms. Villa had little-to-no inflammation or problems with
pressure. He last saw her in July 2013 before the December 2013 accident.
After the accident, Dr. Menard next saw Ms. Villa in July 2014. At that time,
Ms. Villa had the same problem in her right eye, just a more escalated version of it;
more inflammation, more light sensitivity, and more pressure problems. Dr.
Menard testified that even with very aggressive treatment, it was impossible to get
the same level of control he had before. Dr. Menard also observed fresh bleeding
in the eye causing him to opine that something new had happened and the lens had
shifted even further. It was his opinion that Ms. Villa’s new issues were caused by
the facial trauma she experienced in the accident after the air bag deployed. At
5 that point, Ms. Villa’s situation began to look like it might become more of a
surgical case.
Dr. Thompson performed the surgery on Ms. Villa in June 2015 to replace
the lens implant. Dr. Thompson did not perform the original surgery. Dr. Menard
explained that Dr. Thompson removed the lens implant and sewed in a new lens
implant. Dr. Menard testified that the surgery was successful.
Dr. Menard’s testimony assisted the jury under the circumstances of this
case. He was Ms. Villa’s treating optometrist for many years before the accident
and knew the circumstances surrounding her eye issues before and after the
accident. Dr. Menard was in the truly unique position of knowing Ms. Villa’s eye
condition before the accident and the changes that occurred after the accident,
necessitating the need for the new lens implant. Under the circumstances of this
case, we do not find that the trial court abused its wide discretion in allowing Dr.
Menard to testify regarding Ms. Villa’s need for surgery caused by the accident.
MEDICAL EXPENSES
Ms. Villa claims the jury erred in failing to award her all of her past medical
expenses. Ms. Villa submitted medical bills totaling $47,509.55. The jury
awarded $45,740.00 in past medical expenses.
A plaintiff’s allegations that medical expenses were incurred as the result of
an accident, which is supported by medical bills are sufficient to support the
inclusion of that item in the judgment “unless there is sufficient contradictory
evidence or reasonable suspicion that the bill is unrelated to the accident.” Barras
v. Progressive Sec. Ins. Co., 14-898, p. 4 (La.App. 3 Cir. 2/11/15), 157 So.3d 1185,
1189, writ denied, 15-512 (La. 6/1/15), 171 So.3d 261 (quoting Gradnigo v.
Louisiana Farm Bureau, 08-1198, pp.15-16 (La.App. 3 Cir. 3/4/09), 6 So.3d 367,
6 377). Failure “to award the full amount of medical expenses incurred as a result of
the accident and proven by a preponderance of the evidence is an error by the trier
of fact.” Id.
None of the medical bills represent the difference of $1,769.55 between the
amount of medical bills introduced into evidence and the amount awarded by the
jury. At trial, the Defendants disputed that the accident caused the need for
surgery to replace the lens in Ms. Villa’s eye. The Defendants argued that Ms.
Villa was already having problems with the lens placed in her eye before the
accident and the surgery was inevitable. The total cost for this surgery was
$2,340.00.
Obviously, the jury determined that the lens replacement surgery was at least
partially necessitated by the accident because it did not reduce the award for
medical expenses by the total cost of the surgery. We further note that the
Defendants do not contest on appeal Ms. Villa’s claim that she is entitled to an
award for all past medical expenses. Therefore, we find it was error for the jury
not to include an award for all past medical expenses and we will amend the
judgment accordingly.
GENERAL DAMAGES
Ms. Villa also argues that the general damages awarded to her should be
increased to reflect the serious and lifelong consequences of her injuries. Ms. Villa
claims that, given the serious and lasting nature of her injuries, an award of
$260,000.00 is reasonable for her general damages, as opposed to $37,500.00
($32,500.00 for past and future pain and suffering, $4,000.00 for past and future
mental anguish, and $1,000.00 for past and future loss of enjoyment of life)
awarded by the jury.
7 “In the assessment of damages in cases of offenses, quasi offenses, and quasi
contracts, much discretion must be left to the judge or jury.” La.Civ.Code art.
2324.1. The supreme court recently granted writs to determine an appellate court’s
adjustment of damage awards in Thibodeaux v. Donnell, 16-570, p. 6 (La. 1/20/17),
219 So.3d 274, 278, wherein it restated the Coco Rule found in Coco v. Winston v.
Industries, Inc., 341 So.2d 332, 335 (La. 1976) (citations omitted) (alteration in
original):
[B]efore a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.
We find that the jury abused its discretion in awarding Ms. Villa only
$37,500.00 in general damages. Ms. Villa testified that she remembers a man
knocking on her window at the scene of the accident but doesn’t remember
anything after that until she got in her room at the hospital. Ms. Villa’s injuries
due to this accident were numerous, and some were very serious. She suffered
injuries all over her body including a head injury, worsening of neck pain, a
displaced sternum fracture, with three rib fractures, three herniated lumbar discs, a
large hematoma on her right hip, a sprain of the left knee, sprain and cartilage loss
in the right knee, an avulsion fracture of her left ankle, and bruising and swelling
of the right ankle. Eventually, Ms. Villa required eye surgery to replace the
displaced lens in her right eye.
8 In addition to her physical injuries, Ms. Villa suffered mental anguish, loss
of enjoyment of life, and pain and suffering after the accident, some of which she
still suffers from today. When Ms. Villa was initially admitted to the hospital, she
was confined to a bed in a room full of roaches. She could not move due to
extreme pain and the fact that she was on a catheter. Ms. Villa was moved to a
new room after two days. She was released from the hospital after four days and
slept in a recliner at her house for about two months. Ms. Villa did not return to
work for three months. She could not drive for nearly four months because she
had to wear a boot for her fractured ankle. Her family had to help her with
personal grooming, house and yard work.
While Ms. Villa testified that she can now do most of the things that she
could do prior to the accident, she still has some residual issues. Ms. Villa’s chest
still bothered her when she turned a certain way while she slept. Her right knee
occasionally bothers her. Her left ankle also still gives her problems.
Ms. Villa admitted that she suffered with neck pain prior to the accident but
only on the left side. After the accident, she began to suffer with right-sided
symptoms in addition to worsening of her neck pain. The herniated lumbar discs
were new issues caused by the accident. She was also involved in two additional
car accidents but suffered no injuries in those accidents.
Based on the record, we find that the jury’s award for $32,500.00 for past
and future pain and suffering is abusively low. Once an appellate court determines
that the trier of fact abused its discretion in its award of general damages, it may
examine prior awards for purposes of determining the highest or lowest point of an
award that could reasonably be granted. Youn v. Maritime Overseas Corp., 623
So.2d 1257 (La.1993), cert denied, 510 U.S. 1114, 114 S.Ct. 1059 (1994).
9 After reviewing prior awards in similar cases, we find that $250,000.00 is
the lowest reasonable award that the jury could have awarded for Ms. Villa’s
numerous and serious injuries, which for the most part were completely healed by
the time of trial three years later. Dowden v. Mid State Sand & Gravel Co., Inc.,
95-231 (La.App. 3 Cir. 11/2/95), 664 So.2d 643, writ denied, 95-2864 (La. 2/2/96),
666 So.2d 1099 ($100,000.00 in general damages awarded for abrasions, a
laceration to the chin, a bruise over the left anterior chest wall, a deep laceration to
the central part of the right knee, and comminuted fracture of the right hip-joint
socket which required an open reduction internal fixation, including the use of a
plate and screws); Pannell v. Encompass Ins. Co., 06-1601 (La.App. 3 Cir. 5/2/07),
956 So.2d 152 ($90,000.00 in general damages for soft tissue injuries to neck and
shoulder with aggravation of a pre-existing low back condition); Kerrigan v.
Imperial Fire and Cas. Ins. Co., 99-603, 99-604 (La.App. 3 Cir. 11/3/99), 748
So.2d 67, writ denied, 99-3410 (La. 2/4/00), 754 So.2d 236 ($175,000.00 in
general damages for cervical strain, one herniated lumbar disc which required
future surgery, concussion, severe laceration to forehead, contusions and abrasions
to the knees, strain of right shoulder, fracture of left fibula near the knee); Cox v.
Shelter Ins. Co., 09-958 (La.App. 3 Cir. 4/7/10), 34 So.3d 398, writ denied, 10-
1041 (La. 9/17/10), 45 So.3d 1044 ($250,000.00 in general damages for protruding
thoracic disc causing ongoing daily problems lifting children, pain when sitting or
standing, and severe headaches); Hebert v. Veterans Veterinary Hosp., Inc., 96-779
(La.App. 5 Cir. 4/9/97), 694 So.2d 993 ($165,000.00 in general damages for
trimalleolar fracture of three bones comprising ankle requiring two surgeries, in a
wheelchair and had to use crutches and a walker during rehabilitation, required
10 nonsurgical medical care for the rest of life, and could no longer help in family
business or do normal household chores).
PAST LOST WAGES
On appeal, Ms. Matte argues that Ms. Villa did not lose wages as a result of
the accident and she should not have been allowed to assert a lost wage claim. Ms.
Villa claims that the collateral source rule prevents Ms. Matte from using her
employment benefits as a discount.
The collateral source rule is a doctrine of common law origin, jurisprudentially imported into the law of this state. Basically, the rule provides that “a tortfeasor may not benefit, and an injured plaintiff’s tort recovery may not be reduced, because of monies received by the plaintiff from sources independent of the tortfeasor’s procuration or contribution.” Under the collateral source rule, payments received from an independent source are not deducted from the award the aggrieved party would otherwise receive from the wrongdoer. As a result, the tortfeasor is not allowed to benefits from the victim’s foresight in purchasing insurance and other benefits.
Bellard v. Am. Cent. Ins. Co., 07-1335, 07-1399, p. 18 (La. 4/18/08), 980 So.2d
654, 667-68 (citations omitted) (footnote omitted); See also Royer v. State Dep’t of
Transp. & Dev., 16-534 (La.App. 3 Cir. 1/11/17), 210 So.3d 910, writ denied, 17-
288 (La. 4/24/17), 221 So.3d 69.
At the time of the accident, Ms. Villa was working at Elmer’s Radiator Shop,
which was owned by her parents. She worked there since graduating from high
school in 1979. Her duties included handling accounts receivable, payables,
payroll, customer service, and other miscellaneous duties. Ms. Villa’s mother,
Lollion Elmer, testified that in the past her daughter only missed some work for
some surgeries but otherwise did not miss much work before this accident. Ms.
Elmer testified that there was no set vacation or sick leave time at the shop but Ms.
Villa could not just take unlimited time off and continue receiving her wages. As a
11 small family business, all employees were paid when they had to take time off for
sick leave.
In Bozeman v. State, 03-1016 (La. 7/2/04), 879 So.2d 692, the supreme court
cited the fourth circuit’s case of Bryant v. New Orleans Pub. Serv. Inc., 406 So.2d
767 (La.App. 4 Cir. 1981), judgment affirmed, 414 So.2d 322 (La.1982), and
recognized that the collateral source rule did apply, not only where the plaintiff
directly purchased insurance against which the plaintiff recovered, but also where
the plaintiff received benefits from gratuitous sources such as Medicaid payments.
More recently, in Royer v. State Dep’t of Transp. & Dev., 210 So.3d at 910,
this court, in addressing whether the collateral source rule applied to the payment
of workers’ compensation benefits from an employer to an employee for damages
sustained in a vehicle accident caused by the Louisiana Department of
Transportation and Development, held:
If the primary goal of the collateral source rule is tort deterrence, the collateral source rule applies to a tortfeasor, even if consideration, in the form of policy payments, is non-existent, as will always be the case when a workers’ compensation carrier is the collateral source. We find that the overriding policy of tort deterrence outweighs the concern of double recovery.
We first observe that Ms. Villa did not receive a “windfall,” as she earned
the ability to take off work and receive compensation for time off due to her long-
time employment with Elmer’s. As testified to by Ms. Elmer, this was a benefit
provided to all employees when it was needed but it was not an indefinite benefit.
Furthermore, even if we were to consider that Ms. Villa did not earn the
ability to take off time with compensation, we agree with the court’s reasoning in
Lee v. Cook, 482 So.2d 760, 763 (La.App. 5 Cir.), writ denied, 484 So.2d 137
12 (La.1986) (citing Wallace v. Pan American Fire & Cas. Co., 352 So.2d 1048
(La.App. 3 Cir. 1977)):
[U]nder the collateral source rule in an action in tort by an injured employee against a third-party tort-feasor, where the tort- feasor is established and the employer does not intervene for reimbursement of compensation benefits paid, the plaintiff is entitled to recover the full amount of damages sustained by him without deduction of the amounts he has received from his employer as compensation benefits.
Elmer’s Radiator Shop made no claim for reimbursement of wages paid to Ms.
Villa when she was off work due to the accident.
For these reasons, we find that the trial court was correct in applying the
collateral source rule. Ms. Villa is entitled to recover damages for past loss wages.
INSURANCE COVERAGE
In its appeal, GEICO states that the trial court correctly found that sufficient
evidence existed to prove that notice of cancellation for nonpayment of premium
was mailed on July 25, 2013. However, GEICO claims that the trial court erred in
concluding that La.R.S. 22:1266 imposes a burden of proving delivery of notices
of cancellation for nonpayment when proof of mailing is established.
At the bench trial on the issue of insurance coverage, the following
testimony and evidence were introduced. Kim Jones, a coverage underwriter with
GEICO, testified that the policy was originally issued to Mr. Jeyrl Clack for a 2007
Chevy. The account was set up for the premium to be paid by an electronic funds
transfer. Mrs. Clack was added in December 2011. Her 2007 Chevy was added in
July 2012.
In August 2012, the account number was changed for the automatic drafts
and it came back from the bank as an invalid account number. GEICO sent out
bills, and payment was made in September by a check for a partial amount. The
13 rest of the amount was paid online a couple of weeks later. That payment was also
returned for an invalid account number. The Clacks then reenrolled in electronic
funds transfer, which then proceeded smoothly.
The 2010 Chevy that was involved in the accident, and driven by Ms. Matte,
was added to the policy in February 2013. Ms. Matte is Mrs. Clack’s mother. On
July 15, 2013, Mrs. Clack went online and removed the two 2007 Chevy vehicles.
At the same time, the account number for the electronic funds transfer was
changed. GEICO sent a letter to the Clacks informing them that account
information was changed. GEICO tried to extract payment on July 21, 2013, but it
was returned for invalid account number.
On July 25, 2013, GEICO sent a “NOTICE OF CANCELLATION FOR
NONPAYMENT OF PREMIUM” letter to the Clacks informing them that it
needed payment by August 5 or the policy was canceled. No premium was
received, so on August 9, 2013, GEICO mailed the Clacks a “BALANCE DUE
ON CANCELED POLICY” letter informing them that they owed $87.06 for
“earned premium.” On August 30, 2013, another letter was mailed to the Clacks
informing that the policy canceled on August 5, 2013, and they still had an account
balance of $87.06. An additional letter was mailed to the Clacks on September 20,
2013, advising them of the policy balance of $87.06. A “FINAL NOTICE” was
mailed to the Clacks on October 11, 2013, reminding the Clacks of the balance on
their policy and informing them that if payment was not received by October 24,
2013, the account would be referred to a collection agency.
Ms. Jones testified that GEICO received no other correspondence after the
account was turned over to a collection agency until December 10, 2013, when it
received a call to reissue the policy. Payment was made over the phone at 8:59
14 a.m. central time. The accident occurred around 8:00 a.m. The policy was then
reinstated. The new policy had effective dates of December 11, 2013 to June 11,
2014.
Mrs. Clack testified that they never received notice that the insurance was
being canceled. She further testified that she had no recollection of receiving any
correspondence from GEICO. She testified that she did not get the mail from the
mailbox because her mother, who lives in an apartment connected to the main
house, would get the mail from a joint mailbox. Her mother would go through her
mail and place the mail on a table by the door. Mrs. Clack also had a friend who
was often at the house and would get the mail and also place it on the table.
Mrs. Clack testified that she did receive the collection letter and called the
next day about it and paid to get coverage reinstated on her mother’s car. This was
her first notice that the insurance had been canceled. Mrs. Clack explained that she
only checks the daily balance in her checking account and doesn’t balance the
checkbook every month so she would not have known that the premium had not
been paid since July 21, 2013. Mrs. Clack testified that she called to reinstate the
policy the day after she received the collection letter but before she allegedly knew
about the accident.
Donna Truslow, the output manager and postal administrator for GEICO,
testified about the process that the notice of cancellation letter went through at the
Fredericksburg, Virginia facility. She explained that the facility processes, prints,
sorts, and mails customer documents. Daily files are received electronically into
the print queue. Different batches are assigned to different printers. Once a batch
is printed, it goes to the insertion stage. Intelligent, barcode-driven equipment
reads the barcodes that are on the documents and inserts them into envelopes based
15 on the barcode. It is kept in order based on the Post Office Receipt Secured (PORS)
listing, which is a proof of mailing method. The PORS listing is also printed at the
facility. The envelopes are then placed into trays, with sleeves on top to keep
everything in order. A verification process occurs to ensure that everything is kept
in order of the way that it is printed and prepared on the PORS listing.
Once the letters are in the trays, they are placed in carts which are picked up
by a transportation driver. The driver signs a pick-up slip of how many trays are
being picked up. Ms. Truslow explained that there is no pick-up slip for this
particular notice of cancellation because they dispose of them after a certain period
of time due to storage issues.
Ms. Truslow explained that additional fees are paid to the United States
Postal Service to mail documents using the PORS process. Once all items are
verified, they are taken to the postal clerk on site in Ashland, Virginia for
acceptance and to make sure that everything is in order as on the PORS listing. Ms.
Truslow explained that a pick-up slip is not necessary because the postal clerk has
accepted that particular notice of cancellation by stamping the postal PORS list
indicating acceptance. The letters are then handed over to Pitney Bowes who pre-
sorts the documents according to zip code while the documents are still in the
postal service’s custody. The items are then placed for delivery. Ms. Truslow
explained that the date on the letter and the date of mailing must be the same or the
post office will not accept it if it is a PORS document.
Louisiana Revised Statutes 22:1266(D)(1) (emphasis added) provides for
notice of cancellation of insurance for nonpayment of premium as follows, in
pertinent part:
16 No notice of cancellation of a policy to which Subsection B or C of this Section applies shall be effective unless mailed by certified mail or delivered by the insurer to the named insured at least thirty days prior to the effective date of cancellation; however, when cancellation is for nonpayment of premium at least ten days notice of cancellation accompanied by the reason shall be given. In the event of nonpayment of premiums for a binder, a ten-day notice of cancellation shall be required before the cancellation shall be effective. Notice of cancellation for nonpayment of premiums shall not be required to be sent by certified mail.
In the present case, the trial court found sufficient evidence based on the
testimony and evidence that notice was properly mailed. No one has contested
this finding on appeal. In addressing the issue of delivery, the trial court
recognized that Mrs. Clack testified that she never received the notice of
cancellation in the mail. The trial court then considered the other letters sent by
GEICO after the notice of cancellation and addressed the issue of whether notice of
cancellation was properly delivered. The trial court concluded that La.R.S.
22:1266(D)(1) required notice to the insured ten days before the cancellation was
effective. The trial court determined that it was impossible for the letter to arrive
ten days before the effective cancellation day of August 5, 2013, if it was mailed
on July 25, 2013. The trial court specifically made a finding that it was impossible
for the notice of cancellation, at the time it was mailed, to have provided the
requisite ten-day notice, so that cancellation under Louisiana Law was not proper.
Therefore, the trial court found that the GEICO policy provided coverage for the
accident.
In Johnson v. Louisiana Farm Bureau Casualty Ins. Co., 11-476 (La. 5/6/11),
60 So.3d 607, the supreme court addressed the issue of whether notice of
17 nonrenewal of a homeowner’s insurance policy under La.R.S. 22:1335 1 required
that it simply be mailed to the insured at the address shown on the policy or
whether it must actually be delivered in order to be effective. The supreme court
held that:
The key is that the statute requires only mailing, not proof of receipt. Any evidence of non-delivery is relevant only as far as it is evidence of non-mailing or improper mailing, which is an issue for the fact finder to resolve.
In this case, the jury found that Farm Bureau had properly mailed the notice of nonrenewal, even after taking into consideration that the plaintiff did not receive the notice. This finding ended the jury’s fact finding duty, and the fact that the plaintiff did not receive the notice was otherwise irrelevant. Farm Bureau did all that it was required to do under La.R.S. 22:1335 in order to give notice of nonrenewal of the homeowner’s insurance policy. Johnson, 60 So.3d at 608-09 (footnote omitted).
The court in Johnson decided that non-delivery only mattered insofar as it
established non-mailing or improper mailing.
In the present case, La.R.S. 22:1266(D)(1) only requires that notice of
cancellation for nonpayment of premiums be mailed or delivered, as certified mail
is not required. There is no dispute that the trial court found that notice of
cancellation sent by GEICO was properly mailed. Therefore, whether the notice
was actually delivered does not matter.
We do find that the trial court erred in finding that the notice was not timely
mailed. Louisiana Revised Statutes 22:1266(J) (emphasis added) provides that:
“Where written notice of cancellation or nonrenewal is required and the insurer
elects to mail the notice, the running of the time period between the date of mailing
1 La.R.S. 22:1335(A) provided that: “The notice of nonrenewal shall be mailed or delivered at least thirty days before the expiration date of the policy.”
18 and the effective date of termination of coverage shall commence upon the date
of mailing.”
Ms. Villa argues that this court should not take into account La.R.S.
22:1266(J) because it was not raised by GEICO in the trial court and cannot be
raised for the first time on appeal. The issue of whether notice of cancellation was
timely was an issue in the trial court so it is not raised for the first time on appeal.
Furthermore, La.R.S. 22:1266 is at the heart of the issue concerning coverage in
this case and the trial court considered it in making its decision. Therefore, we find
that the applicability of La.R.S. 22:166(J) is properly before this court. Harrah’s
Bossier City Inv. Co., LLC v. Bridges, 09-1916 (La. 5/11/10), 41 So.3d 438.
Pursuant to La.R.S. 22:1226(J), notice was timely mailed on July 25, which
would be the start of the ten-day period. The tenth day would be August 3, which
is clearly ten days before the cancellation date of August 5.
Ms. Villa also argues that notice had to be by certified mail or delivery
because the electronic funds transfer was a negotiable instrument. Ms. Villa
claims that the order and authorization by providing the bank account information
online to instruct withdrawal by GEICO of a monthly payment is a negotiable
instrument pursuant to La.R.S. 10:3-104.
Louisiana Revised Statutes 22:1266(D)(3)(a)(i) and (ii) provide when
payment is made by “check or other negotiable instrument” and it is returned, then:
The insurer shall immediately, and in no case later than ten days after the producer or premium finance company has notified the insurer, notify the named insured, by certified mail or delivering to the name insured a written notice that the policy is canceled from the date the premium payment was due.
“To be classified as a negotiable promissory note, the entire writing must be
examined in order to determine whether the requisite formalities have been
19 fulfilled.” Bridges v. Bridges, 96-1191, p. 6 (La.App. 3 Cir. 3/12/97), 692 So.2d
1186, 1190. In the present case, the actual order and authorization were not
introduced into evidence so we cannot determine whether it was a negotiable
instrument or not. Therefore, we do not address this argument.
For the reasons set forth in this opinion, we amend the judgment to increase
the awards of medical expenses to $47,509.55 and general damages for past and
future pain and suffering to $250,000.00. We also reverse the judgment insofar as
it casts GEICO General Insurance Company in judgment for this accident. We
find that the notice of cancellation sent by GEICO General Insurance Company
was effective and there was no coverage for this accident and dismiss all of
Pamelia Villa’s claims against it. In all other respects, the judgment of the trial
court is affirmed.
Costs of this appeal are assessed to Marie Matte.
REVERSED IN PART; AFFIRMED AS AMENDED.
20 Conery, J., concurs in part and dissents in part and assigns reasons.
I agree with the majority’s opinion except for the increase in general
damages. While I do agree that the general damages for this deserving plaintiff are
very low for injuries of the magnitude sustained by her in this collision and for her
past, present and future physical and mental pain and suffering, it is difficult to
overturn the jury’s verdict considering our limited role in reviewing jury awards.
See Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee
Rocky Mountain, LLC, 14-2592 (La. 12/8/15), 193 So.3d 1110. I would further
agree that the general damages award should have been in the $250,000.00 range
based on the record in this case. However, based on the constraints placed on
appellate courts’ review of jury awards, I am constrained to accord the jury
deference to its credibility and fact-finding functions. Reluctantly, I dissent from
the majority’s decision to increase general damages. In all other respects, I concur
with the majority’s opinion.