Sabillon v. Max Specialty Insurance Co.

137 So. 3d 707, 2013 La.App. 4 Cir. 0513, 2014 WL 1028576, 2014 La. App. LEXIS 641
CourtLouisiana Court of Appeal
DecidedMarch 12, 2014
DocketNo. 2013-CA-0513
StatusPublished
Cited by4 cases

This text of 137 So. 3d 707 (Sabillon v. Max Specialty Insurance 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
Sabillon v. Max Specialty Insurance Co., 137 So. 3d 707, 2013 La.App. 4 Cir. 0513, 2014 WL 1028576, 2014 La. App. LEXIS 641 (La. Ct. App. 2014).

Opinion

JOY COSSICH LOBRANO, Judge.

| defendants, Dupuy Storage and Forwarding Corporation and Dupuy Storage and Forwarding L.L.C., appeal two trial court judgments: (1) the October 29, 2012 judgment in favor of plaintiff, Danilo Sabil-lon, in the amount of $4,661,333.00, plus judicial interest and costs to be taxed by the trial court from the date of judicial demand until paid, and (2) the January 2, 2013 judgment denying defendants’ motion for new trial, motion for judgment notwithstanding the verdict and, alternatively, motion for remittitur of the damages award.1 For reasons that follow, we affirm.

On February 3, 2010, the plaintiff, an independent commercial truck driver who was in the business of transporting loads of cargo, arrived with a delivery of cargo at a warehouse owned by Dupuy Storage and Forwarding L.L.C. (hereinafter preferred to as “Dupuy.”)2 An employee of Dupuy used a forklift to. unload the cargo transported by plaintiff. During the unloading process, the load fell off the forklift and struck a piece of lumber, which became airborne and struck plaintiff in the head, causing severe injuries. Plaintiff was 46 years old at the time of the accident. Plaintiff filed suit against Dupuy and its insurer, Max Specialty Insurance Company, alleging that plaintiffs injuries were caused solely by the negligence of Dupuy and its employee(s).

Following trial, a jury found Dupuy solely at fault for plaintiffs injuries, and awarded plaintiff the following damages, totaling $4,661,333.00:

(1) Physical injury, pain and suffering (past and future) — $1,303,333.00
(2) Mental anguish, pain and suffering (past and future) — $996,667.00
(3) Permanent disability, if any— $670,833.00
(4) Loss of enjoyment of life (past and future) — $862,500.00
(5) Medical expenses (past and future) — $128,000.00
[710]*710(6) Past lost wages and future loss of earnings/loss of earning capacity— $700,000.00

The trial court adopted the jury verdict, and rendered judgment in favor of plaintiff and against Dupuy and Max Specialty Insurance Company, in the amount of $4,661,333.00, plus judicial interest and costs to be taxed by the court from the date of judicial demand until paid. Dupuy and Max Specialty Insurance Company subsequently filed motions for new trial and for judgment notwithstanding the l3verdict to reduce the damages award, and alternatively, for remittitur of the damages award. The trial court denied those motions, and this appeal followed.

On appeal, Dupuy raises two assignments of error:

(1)The jury manifestly erred in its award of $700,000.00 in past lost wages and future loss of earnings/loss of earning capacity; and
(2)The jury manifestly erred in its award of $3,833,333.00 in general damages.

Dupuy did not appeal the finding that it was 100% at fault for this accident. With regard to the award of $700,000.00 for past lost wages and future loss of earnings/loss of earning capacity, Dupuy argues that the plaintiff is not now, nor is he likely to be in the future, permanently and totally disabled. According to Dupuy, the evidence at trial established that plaintiff returned to work driving a truck a few weeks after the accident, and is able to work in gainful employment at wages equal to or above those he was earning at the time of the accident. Plaintiff responds that the jury did not manifestly err in awarding $700,000.00 in economic damages in light of the medical evidence of plaintiffs ongoing decline and the testimony of experts whom Dupuy stipulated were qualified.

Elizabeth Bauer, who was accepted as an expert in vocational rehabilitation, testified on behalf of plaintiff. She testified that she interviewed plaintiff and did a comprehensive review of the medical records relating to plaintiff, including the reports of two neuropsychologists. After reviewing this information and evaluating plaintiff, Ms. Bauer concluded that plaintiffs skills are specific to driving 18-wheel trucks, and are not transferrable to other types of work. Given |4her additional opinion that plaintiff has no transferrable skills, Ms. Bauer’s opinion is that plaintiff is unemployable. Ms. Bauer noted that plaintiffs 2011 income of $56,123.00 closely coincides with the annual earning rate of $57,100.00 that her research showed could be earned by Louisiana truck drivers. According to Ms. Bauer, plaintiff would have continued to earn that amount but for his injuries sustained in the accident.

Dr. Shael Wolfson, an expert forensic economist who testified on behalf of plaintiff, stated that plaintiff sustained $4,690.00 in lost wages. Dr. Wolfson further testified that assuming the earnings figures stated by Elizabeth Bauer, plaintiffs loss of earning capacity would be $520,967.00 if he worked to the age of 60, or $1,012,028.00 if calculated from the time of trial until the age of 67 when plaintiff would be eligible to receive Social Security benefits.

Dr. Larry Stokes, who was accepted as an expert in the field of vocational rehabilitation, testified on behalf of Dupuy. He stated that he interviewed plaintiff, and reviewed accident and medical records and depositions relating to plaintiff. His opinion is that plaintiff has some transferrable skills, most of which involve driving. Dr. Stokes testified that plaintiff could drive a pickup truck, car or van, and perform sedentary to light duty work, such as being an escort driver, a delivery driver or courier. [711]*711He also stated that plaintiff could probably perform some jobs that do not involve driving, such as assembly work and janitorial work. Dr. Stokes’ opinion is that plaintiff did not sustain a loss of earning capacity as a result |sof the accident, and can continue to earn wages similar to those earned prior to. the accident.

Kenneth Boudreaux, the expert economist testifying on behalf of Dupuy, testified that given Dr. Stokes’ opinion regarding plaintiff’s employability, plaintiff does not have any loss of earning capacity. However, when asked to use Ms. Bauer’s calculation that plaintiff could earn $57,100.00 per year, Mr. Boudreaux testified that if plaintiff cannot work at all, his present value future lost earnings would total $672,600.00 if plaintiff worked until the age of 60.

Dupuy also points to the testimony of plaintiffs neurologist, Dr. Morteza Shams-nia, who stated that plaintiff can no longer drive an 18-wheel truck, but could drive a car or a pickup truck. But Dr. Shamsnia also said that he is not a vocational rehabilitation expert, and would not make any assessment as to whether or not plaintiffs skills as a driver of an 18-wheel truck were transferrable to other types of employment.

“The jury’s determination of the amount, if any, of an award of damages, including lost earning capacity, is a finding of fact.” Ryan v. Zurich American Ins. Go., 07-2312, p. 7 (La.7/1/08), 988 So.2d 214, 219. “Credibility determinations, including evaluating expert witness testimony, are for the trier of fact.” Jones v. Harris, 04-0965, p. 15 (La.App. 4 Cir. 2/2/05), 896 So.2d 237, 246 (citing Sportsman Store of Lake Charles, Inc. v. Sonitrol Security Systems of Calcasieu, Inc., 99-0201, p. 6 (La.10/19/99), 748 So.2d 417, 421).

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137 So. 3d 707, 2013 La.App. 4 Cir. 0513, 2014 WL 1028576, 2014 La. App. LEXIS 641, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sabillon-v-max-specialty-insurance-co-lactapp-2014.