Sloan v. Mouton

82 So. 3d 364, 2011 WL 6058103
CourtLouisiana Court of Appeal
DecidedDecember 7, 2011
DocketNo. 11-804
StatusPublished
Cited by2 cases

This text of 82 So. 3d 364 (Sloan v. Mouton) 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
Sloan v. Mouton, 82 So. 3d 364, 2011 WL 6058103 (La. Ct. App. 2011).

Opinion

THIBODEAUX, Chief Judge.

_JjThe plaintiff, CeCe Sloan, sustained injuries when her vehicle was struck by the vehicle of an underinsured driver. The defendant, Shelter Mutual Insurance Company, appeals from disputed elements in the jury verdict and the judgment awarding damages to the plaintiff. Ms. Sloan answered the defendant’s appeal and assigns various errors in the jury verdict and the judgment. For the following reasons, we amend in part and affirm the judgment of the trial court.

I.
ISSUES
We must decide:
(1) whether the trial court manifestly erred in granting additur and increasing the plaintiffs general damages by $70,000.00;
(2) whether the trial court manifestly erred in finding that the defendant had accepted the additur and waived its option for a new trial on damages;
(3) whether the trial court manifestly erred in finding that the accident caused the injuries to the plaintiffs shoulders and thumbs;
(4) whether the trial court manifestly erred in denying the plaintiffs motions in limine based upon the defendant’s ex parte communications with the plaintiffs physicians;
[368]*368(5) whether the jury manifestly erred in its award of only $1,600.00 in future medical expenses; and,
(6) whether the jury manifestly erred in its award of $11,000.00 for past lost wages and zero for future lost wages.

II.

FACTS AND PROCEDURAL HISTORY

CeCe Sloan, age fifty-five at the time of trial, was injured in a motor vehicle accident in April of 2007, when the driver of another vehicle ran a stop |2sign, striking her vehicle and causing her to spin around and crash into a telephone pole. She sustained injuries to her head, chest, shoulders, arms, thighs, knees, and hands, including deep tissue bruising, the development of large cysts in her breasts, torn ligaments in her hands, and severe carpal metacarpal joint laxity in her thumbs. Her injuries required surgery to both hands with the placement of screws and pins into the joints. Ms. Sloan had nightmares after the crash and suffered anxiety, depression, sleeplessness, and nervousness.

The tortfeasor, Renee Mouton, and her insurer, U.S. Agencies Casualty Insurance Company, stipulated to liability, and Ms. Sloan settled with them for their policy limits of $10,000.00. Ms. Sloan received $5,000.00 in medical pay and $15,000.00 in tender from her uninsured-underinsured motorist (UM) carrier, Shelter Mutual Insurance Company. She proceeded to trial against Shelter for the remainder of her damages. The jury found that the accident had caused Ms. Sloan’s injuries and awarded her $120,450.00 in total damages. The jury’s award was comprised of:

$ 47,850.00 Past medical expenses
$⅞ ⅜ 1,600.00 Future medical expenses
$ 11,000.00 Past lost wages
■ -0- Loss of future earning capacity
$ 20,000.00 Past and future physical pain and suffering
$ 10,000.00 Past and future mental pain and suffering
-0- Loss of enjoyment of life $ 30,000.00 Permanent disability_
$120,450.00 Total damages

Ms. Sloan filed a motion for additur. The trial judge granted an additur of $70,000.00, increasing the award for physical pain and suffering by $30,000.00 (from $20,000.00 to $50,000.00); increasing the award for mental pain and suffering by $25,000.00 (from $10,000.00 to $35,000.00); and adding $15,000.00 for loss of enjoyment of life. The additur resulted in the following awards:

$ 47,850.00 Past medical expenses
1,600.00 Future medical expenses
11,000,00 Past lost wages
-0- Loss of future earning capacity
$ 50,000.00 Past and future physical pain and suffering
$ 35,000.00 Past and future mental pain and suffering
$ 15,000.00 Loss of enjoyment of life
$ 30,000.00 Permanent disability_
$190,450.00 Total damages

Shelter appealed, assigning three errors in the trial court’s judgment: (1) the jury’s finding of causation; (2) the judge’s finding of waiver by Shelter of its right to a new trial; and, (3) the judge’s additur in the amount of $70,000.00.

Ms. Sloan answered the appeal, assigning errors of her own in the trial court’s judgment: (1) the judge’s failure to exclude testimony following ex parte communications between Shelter and two physicians; (2) the jury’s failure to award a reasonable amount for past lost wages and future loss of earning capacity; and, (3) the jury’s failure to award a proper amount for future medical expenses.

We amend the award of future medical expenses by increasing it from $1,600.00 to $10,000.00. We affirm all other awards for the reasons set forth below.

[369]*369m.

STANDARD OF REVIEW

An appellate court may not set aside a trial court’s findings of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A two tiered test must be applied in order to reverse the findings of the trial court:

a. the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
b. the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

Mart v. Hill, 505 So.2d 1120 (La.1987).

IV.

LAW AND DISCUSSION

Causation

Shelter contends that the jury erred in finding that the injuries to Ms. Sloan’s hands and shoulders were caused by the motor vehicle accident. Shelter concedes that the evidence on causation was conflicting. It, nonetheless, argues that the credible evidence was that Ms. Sloan’s shoulder bursitis and thumbs laxity conditions were not related to the accident. This argument has no merit. To overturn a jury finding, there must be no factual basis in the record to support the jury’s determination. Fleming v. Acadian Geophysical Services, Inc., 02-264 (La.App. 3 Cir. 10/02/02), 827 So.2d 623, unit denied, 02-2717 (La.1/10/03), 834 So.2d 440.

Here, three physicians testified that Ms. Sloan’s shoulder and hand injuries were causally related to the vehicular accident on April 6, 2007. Dr. Mitchell Dugas, Dr. Peter Vizzy, and Dr. Darrell Henderson, who performed the bilateral reconstructive hand surgeries, all positively testified regarding causation as to Ms. Sloan’s injuries. Shelter argues that Dr. Dugas, Ms. Sloan’s internist who treated her from April to November after the accident, did not record any complaints regarding her hands and shoulders, indicating that these problems were not related to the accident. Dr.

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Bluebook (online)
82 So. 3d 364, 2011 WL 6058103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sloan-v-mouton-lactapp-2011.