Soileau v. Smith True Value & Rental

130 So. 3d 1060, 11 La.App. 3 Cir. 1594, 2014 WL 339057, 2014 La. App. LEXIS 211
CourtLouisiana Court of Appeal
DecidedJanuary 30, 2014
DocketNo. 11-1594
StatusPublished
Cited by3 cases

This text of 130 So. 3d 1060 (Soileau v. Smith True Value & Rental) 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
Soileau v. Smith True Value & Rental, 130 So. 3d 1060, 11 La.App. 3 Cir. 1594, 2014 WL 339057, 2014 La. App. LEXIS 211 (La. Ct. App. 2014).

Opinion

GREMILLION, Judge.

|, The plaintiff, Mary Phyllis Soileau, and the defendant, Hartford Insurance Company, appealed a jury verdict in Soileau’s favor. On remand from the Louisiana Su[1063]*1063preme Court, we address the merits. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Soileau sustained serious injuries following a November 2007 accident in which a John Deere front-end loader detached from a John Deere tractor and fell onto her leg, shattering it. Soileau filed suit in April 2008, against Deere & Company (Deere), the Town of Mamou (Mamou), and Harry Smith Jr., Claire Smith, Smith’s Hardware (collectively Smith’s), and Smith’s insurer, Hartford Insurance Company (Hartford). Smith’s rented the Deere equipment to Mamou, for whom Soileau was working supervising the cleaning out of canals with the front-end loader at the time the accident occurred.

In May 2009, Soileau entered into a “high/low” agreement with Hartford in which Hartford’s liability was capped at its policy limit of $2,500,000.00 regardless of the jury’s verdict. Soileau released Smith’s of any personal obligation to Soi-leau.

Soileau settled with Deere in August 2010, and proceeded to trial against Smith’s and Hartford. A jury trial was held over five days in October 2010. On the fourth day of trial, Soileau moved in open court to dismiss the Smiths personally and their company, Smith’s Hardware. That same day, Hartford moved for a directed verdict based on its policy language that obligated it to pay only those sums that the insured becomes legally obligated to pay. The trial court denied the motion. Hartford also filed a peremptory exception of no right of action, arguing that pursuant to the Louisiana Direct Action Statute, La.R.S. 22:1269, 2dismissal of Smith’s terminated Soileau’s action against it. The trial court denied Hartford’s exception.

The jury found in favor of Soileau, apportioning Smith’s with 15% of the fault, Mamou with 15%, and Deere with 70%. It awarded damages totaling $9,429,758.81. The trial court entered judgment against Hartford casting it with 15% of the damages, equaling $1,400,000.00. Hartford was ordered to pay $1,074,463.82 (Hartford received a credit for sums it already paid pursuant to the high/low compromise agreement). The trial court further cast Hartford with 50% of Soileau’s court costs.

Hartford filed a motion for judgment notwithstanding the verdict or, alternatively, for new trial,- re-urging that once Smith’s was dismissed Soileau had no claim against it under the language of its policy and under the direct action statute. Soileau also filed a motion for judgment notwithstanding the verdict regarding fault apportionment. The trial court denied Hartford’s and Soileau’s motions. Hartford and Soileau appealed. On appeal, we found that trial court legally erred in denying Hartford’s exception of no right of action, and we dismissed Hartford rendering the remaining assignments of error moot. Soileau v. Smith True Value and Rental, 11-1594 (La.App. 3 Cir.6/20/12), 95 So.3d 1214. However, the supreme court granted Soileau’s application for a writ of certiorari and/or review and reversed our holding, finding that Soileau’s action against Hartford was maintained despite the mid-trial dismissal of its insureds. Soileau v. Smith True Value and Rental, 12-1711 (La.6/28/13),-So.3d-, 2013 WL 3305265. The supreme court remanded the case to us with the instruction that we address the remaining assignments of error.

|,.ISSUES

The remaining assignments of error that we will address are Hartford’s contentions that:

[1064]*10641. The jury’s award of $7.5 million in General Damages is unreasonable and abusively high in light of the record reviewed in its entirety.
2. The jury’s verdict awarding $7.5 mil- " lion in General Damages should be reversed because the award was tainted by an improper appeal to the jury’s prejudice against insurance companies that prevented the jury from doing justice. Plaintiffs counsel dismissed Hartford’s insureds in front of the jury and then, against the Court’s warning, elicited testimony from plaintiff that she did not want to collect any money from the insureds and that money would be recovered solely from their insurance company, Hartford. Plaintiffs counsel then improperly informed the jury that plaintiff would not be able to collect money for any fault it assessed against Deere, the settling manufacturer, thereby encouraging the jury to increase its award of damages.
3. The jury’s award of $750,000 in future medical expenses is speculative and supported neither by medical testimony of specific care that will be needed nor of the probable cost of any such future care and is contrary to the testimony of the physicians that she is not expected to have surgery in the future and is only expected to need periodic office exams and some medication.

Soileau assigned as error:

1. The trial court was erroneous in failing to instruct the jury concerning the burden of proving and apportioning fault under the Louisiana Product Liability Act; and/or the jury was erroneous in apportioning fault amongst the parties.

DAMAGES

Soileau testified regarding the' impact the accident has had on her life. She held many elected positions in the town of Mamou, including as Chief of Police and City Councilwoman. She worked as the supervisor of Parks and Recreation and was appointed Street Commissioner at the same time. Soileau described her involvement as a member of the staff of the Mamou Cajun Music Festival for over | ¿twenty years, which involved cooking and other activities for the festival. She was a Mamou Girls Softball coach for more than twenty years and a coach for Grand Mam-ou Sports. Soileau said that she was ati the ball field every day during the summer. She was further involved in numerous high school sporting activities. Her days were filled with vigorous, physical activity as part of her job and her personal activities. Soileau described waking up to find the bucket on top of her leg. Soileau was transported by ambulance to the hospital, where she remained for sixty-five days undergoing twenty-two surgeries. Her twenty-third surgery occurred just one month prior to the trial. She testified that since the accident she has not gone a day without pain. Soileau said that she takes several pain and sleeping medications daily and. experiences daily swelling in her leg.

Soileau described being homebound following surgery for a month and then going outside only when the physical therapist started coming for approximately two months. Soileau then attended outpatient physical therapy three days a week. She testified that she is in pain about 95% of the time and that she is. unable to engage in any of her former activities.

Dr. Gregory M. Savoy, a board-certified surgeon for more than thirty-seven years, was qualified as an expert in the field of surgery and vascular surgery. Dr. Savoy [1065]*1065described Soileau’s condition upon entering the emergency room: “She had severe injury to the ... right leg. She had ... a large laceration running down the medial aspect of that leg, and with the crush injury over the thigh and over the inside of the right calf. She also had ... multiple fractures of her foot.”

Dr.

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Bluebook (online)
130 So. 3d 1060, 11 La.App. 3 Cir. 1594, 2014 WL 339057, 2014 La. App. LEXIS 211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/soileau-v-smith-true-value-rental-lactapp-2014.