Rosenthal v. Mid-American Indem. Co.

572 So. 2d 613, 1990 WL 202645
CourtLouisiana Court of Appeal
DecidedDecember 12, 1990
Docket89-733
StatusPublished
Cited by3 cases

This text of 572 So. 2d 613 (Rosenthal v. Mid-American Indem. 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
Rosenthal v. Mid-American Indem. Co., 572 So. 2d 613, 1990 WL 202645 (La. Ct. App. 1990).

Opinion

572 So.2d 613 (1990)

Raymond ROSENTHAL, et al., Plaintiffs-Appellees-Appellants,
v.
MID-AMERICAN INDEMNITY CO., et al., Defendants-Appellants-Appellees.

No. 89-733.

Court of Appeal of Louisiana, Third Circuit.

December 12, 1990.

Neblett, Beard & Arsenault, Jeffery Riggs, Alexandria, for plaintiffs-appellees-appellants.

Woodley, Williams, Fenet, Palmer & Norman, Alfred Boudreaux, Lake Charles, for defendants-appellants-appellees.

*614 Joe Kutch, Pineville, for defendants-appellees-appellants.

Stafford, Stewart & Potter, Mark A. Watson, Alexandria, for defendants-appellees.

Before GUIDRY, FORET and KING, JJ.

GUIDRY, Judge.

This suit arises as a result of an automobile accident which occurred on January 19, 1988. Plaintiffs, Raymond Rosenthal and Carol Wilson, filed this suit naming as defendants Robert Smith; Mid-American Indemnity Company (hereafter Mid-American), insurer of the vehicle owned by Ellen Thomas and being driven by Robert Smith; Champion Insurance Company (hereafter Champion), liability insurer of Robert Smith[1]; and, Viking Insurance Company. Prior to trial, Viking was dismissed on motion of plaintiffs.

At trial, the liability of Mid-American, as primary insurer, and Champion, as secondary insurer, was stipulated. The vehicle driven by Robert Smith, was insured by Mid-American with policy limits of $10,000.00 per person and $20,000.00 per accident. Champion afforded like coverage to Smith.

The trial court awarded damages as follows:

Raymond Rosenthal
General damages                          $ 6,500.00
Stipulated vehicular damage                2,563.00
Stipulated medical bills                   1,234.52
Car Rental (January 25—September
             16, 1988—two-thirds
             of the
             claimed amount) ............. 5,402.00
Storage    (January 19—October
             31, 1988—two-thirds
             of the
             claimed amount) ............. 1,430.00
Towing                                        65.00[2]
                                         ----------
                                         $17,194.52
Carol Wilson
General damages                          $ 9,000.00
Stipulated medical bills                   1,570.25
Lost wages (5 weeks at $450.00
  per week)                                2,250.00
                                          __________
                                         $12,820.25

Mid-American was cast in judgment for its policy limits of $20,000.00 and Champion was cast for the balance as secondary insurer. Mid-American and Champion were jointly cast for all costs. All parties appeal questioning the trial court's awards, plaintiffs urging their inadequacy and defendants urging their excessiveness.

The principles applicable to appellate review of quantum awards are well settled. As stated in Chatelain v. United States Fidelity and Guaranty Company, 495 So.2d 379 (La.App. 3rd Cir.1986), writ denied, 498 So.2d 756 (La.1986):

"... Before the appellate court can disturb a quantum award made by the trier of fact, the record must clearly reveal that the trier of fact abused its great discretion in making the award. The question to be answered on the appellate level is whether the trier of fact's award can be reasonably supported by the record, not whether a different award may have been more appropriate. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Bitoun v. Landry, 302 So.2d 278 (La.1974); Browning v. Commercial Union Ins. Co., 476 So.2d 559 (La.App. 3rd Cir.1985); Sikes v. McLean Trucking Co., 383 So.2d 111 (La. App. 3rd Cir.1980).
In reviewing an award of damages to determine whether it is inadequate or excessive, the appellate court must look at the individual circumstances of the case before it. Only after a close analysis of the facts reveals a clear abuse of discretion of the trier of fact may the award of damages be altered. Reck v. Stevens, 373 So.2d 498 (La.1979); Hefner v. B.J. McAdams, Inc., 487 SO.2d 505 (La.App. 3rd Cir.1986)."

GENERAL DAMAGE AWARD TO RAYMOND ROSENTHAL

The record reveals that Rosenthal injured his right shoulder, chest, left hand *615 and back. He suffered minor cuts to his head and left hand. He was first seen in the emergency room at Rapides General Hospital where he was treated for cuts, bruises, etc. X-rays taken revealed no fracture or other abnormality. In response to his shoulder complaints, the use of a sling was recommended. Plaintiff testified that he used the sling for approximately one month. After a few hours Rosenthal was released to go home. On January 25, 1988, some six days later, Rosenthal was first seen by Dr. Dave Rayburn, M.D., who, after examination, concluded that, as a result of the accident, Rosenthal suffered a muscle strain involving the pectoralis muscle, both at its origin and near the sternum and its insertion on the humerus. He was treated conservatively. Rosenthal was next seen by Dr. Rayburn on February 3, 1988. On this visit the doctor found that the pain in Rosenthal's shoulder had decreased but that he had developed pain in his lower back which was secondary to the shoulder injury. On this visit Dr. Rayburn referred Rosenthal to CENLA Physical Therapy where he received thirteen treatments between February and May of 1988.

The physical therapist, O'Day Lavergne, testified that he afforded Rosenthal the usual therapy indicated in such cases, moist heat, electric stimulation, exercise etc. Lavergne testified that Rosenthal was not released following his last treatment on May 9, 1988 but that he just simply quit coming.

Rosenthal was not seen again by Dr. Rayburn and, as far as the record reflects, was never again seen by a medical doctor or physical therapist for any complaints referable to any injury which he may have sustained in the accident.

At trial Rosenthal stated that he continues to suffer from back stiffness and recurring arm and shoulder pain.

As before mentioned, the trial court awarded Rosenthal $6,500.00 in general damages. Although we view the trial court's award as generous, we are unable to conclude that such award constitutes a clear abuse of the trial court's much discretion.

GENERAL DAMAGE AWARD TO CAROL WILSON

Carol Wilson, a passenger in the Rosenthal vehicle, was also injured in the accident. She received scalp lacerations and injured her hip and thigh. She was taken to the emergency room for initial treatment. X-rays taken revealed no fractures or other abnormalities. Ms. Wilson was released to return home the same day after receiving conservative treatment. She was next seen by Dr. Rayburn on January 25, 1988. Examination by Dr. Rayburn revealed large bruises on her thigh as well as down her right anterior tibial area and down on the dorsum of her foot. Dr. Rayburn referred Ms. Wilson to CENLA Physical Therapy. Dr. Rayburn next saw Ms. Wilson on February 12, 1988, which was her second and last visit. He described her condition on the occasion of that visit as follows:

"I saw her again on February the 12th, and at that time her ecchymotic areas were healing nicely. She had increased movement in her right thigh, as well as her leg. She did have some occasional numbness down in the toes, but this was—sensory was intact down there. it was subjective numbness. Her lacerations on her head had healed nicely, and she had occasional headaches, and other than that was doing quite well."

Following this visit, Ms. Wilson was advised by Dr. Rayburn that she could return to work.

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Bluebook (online)
572 So. 2d 613, 1990 WL 202645, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosenthal-v-mid-american-indem-co-lactapp-1990.