Theriot v. Allstate Ins. Co.

625 So. 2d 1337, 1993 WL 442572
CourtSupreme Court of Louisiana
DecidedOctober 28, 1993
Docket93-C-0807
StatusPublished
Cited by209 cases

This text of 625 So. 2d 1337 (Theriot v. Allstate Ins. Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Theriot v. Allstate Ins. Co., 625 So. 2d 1337, 1993 WL 442572 (La. 1993).

Opinion

625 So.2d 1337 (1993)

Mike THERIOT, Individually and on Behalf of His Minor Son, Chad Theriot
v.
ALLSTATE INSURANCE COMPANY, Timothy Monk, Kim Monk, David Fontenot and State Farm Casualty Company.

No. 93-C-0807.

Supreme Court of Louisiana.

October 28, 1993.

*1339 Michael H. Schwartzberg, Robert M. McHale, McHale, Bufkin & Dees, Lake Charles, for applicant.

Jeanne M. Sievert, James A. Blanco, Stockwell, Sievert, Vicellio, Clements & Shaddock, Lake Charles, for respondent.

ORTIQUE, Justice[1].

This suit was brought by Mike Theriot acting individually and on behalf of his minor child, Chad, to recover damages resulting from a bicycle accident which caused certain injuries to Chad's eye. The defendants are Mr. and Mrs. Timothy Monk, David Fontenot, and their respective homeowners insurers, Allstate Insurance Company and State Farm Casualty Company.

I.

On May 8, 1989, Chad Theriot, then eleven years of age, was lying on his back in Tim and Jessie Monk's yard. Jessie Monk handed Tyler Monk, a baby, to Chad. After Chad had been on the ground playing with the baby for a few minutes, Devin Scott Fontenot (hereinafter referred to as "Scotty"), eleven years of age, rode up on his bicycle. Scotty parked the bicycle by putting down the kick stand, but a few minutes later it fell. The hand brake hit Chad in the eye causing injury. Mike Theriot and Timothy Monk responded to the screams of Chad, providing first aid at the scene of the accident, and then transporting Chad to Lake Charles Memorial Hospital. Once at the hospital, Dr. Kenneth R. Harper diagnosed Chad's injury as "avulsion of the superior oblique, superior rectus and levator muscle; laceration of lid and bulbar conjunctiva." On the same day, Dr. Harper assisted by Dr. Larry Stewart performed surgery on Chad to repair the laceration. The procedure lasted 1½ to 2 hours and was done under general anesthesia. Chad was released from the hospital the following day. He missed one week from school. During that week, Chad's father would bring school work home for him to do. For one week, Chad had a bandage on his eye and was confined to bed. The bandage was eventually removed. Chad wore a patch on his right eye for approximately six weeks. Chad developed complaints of double vision and a condition known as ptosis which is the inability of the muscles to completely raise the eyelid (drooping right eyelid) which his physicians relate to the trauma sustained. The record supports without equivocation or dispute all of the above recited facts.

II.

This matter was tried by jury. Mr. and Mrs. Monk and their homeowners insurer, Allstate Insurance Company were dismissed on directed verdict. The jury returned a verdict for the plaintiff, finding Scotty Fontenot negligent and that his negligence was the cause-in-fact of the accident. The jury awarded damages as follows:

Past medical expenses                  $8,626.91 in full
                                       _________________
Future medical expenses                $-0-
                                       _________________
Past, Present and Future
mental and physical pain
and suffering, permanent
disability and disfigurement.          $20,000
                                       _________________
                                Total: $28,626.21
                                       =================

The jury rejected plaintiffs' claims for future medical expenses, including the claim for expenses related to future surgery to correct the ptosis. Plaintiffs appealed the jury's award, contending that jury abused its discretion in the low award for general damages, in failing to reward any damages for Chad's limitation and/or loss of vocational opportunities and in its failure to award anything for future medical expenses. The appellate court affirmed the trial court judgment, concluding that the jury did not abuse its discretion, finding the amount of the damages awarded by the jury was adequate.[2]

III.

We granted writ to determine whether the jury abused its discretion in its award of $20,000.00 in general damages, or in its failure to award any damages for limitation *1340 and/or loss of vocational opportunities, or in its denial of an award for future medical expenses. For the reasons expressed, we find the jury abused its discretion in awarding $20,000.00 for past, present and future mental and physical pain and suffering, permanent disability and disfigurement; in rejecting the claims for limitation and/or loss of vocational opportunities, and future medical expenses. The award of general damages in the amount of $20,000.00 is so low as to constitute a clear abuse of the jury's discretion. We further find that the jury abused its discretion in failing to award any damages for future medical expenses and in failing to make any award whatsoever for limitation and/or loss of vocational opportunities. We affirm the jury's verdict as to the negligence of young Fontenot being the sole cause of the accident and injury to Chad Theriot. We amend that portion of the trial court judgment awarding general damages and special damages for limitation and/or loss of vocational opportunities and future medical expenses, including surgery to correct the ptosis.

IV.

Our jurisprudence has consistently held that in the assessment of damages, much discretion is left to the judge or jury, and upon appellate review such awards will be disturbed only when there has been a clear abuse of that discretion, Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1977). And, "[i]t is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review be considered either excessive or insufficient," Reck v. Stevens, 373 So.2d 498, 501 (La.1979). Appellate courts review the evidence in the light which most favorably supports the judgment to determine whether the trier of fact was clearly wrong in its conclusions. Arceneaux v. Dominque, 365 So.2d 1330 (La.1978). Before an appellate court can disturb the quantum of an award, the record must clearly reveal that the jury abused its discretion. In order to make this determination, the reviewing court looks first to the individual circumstances of the injured plaintiff. Only after analysis of the facts and circumstances peculiar to the particular case and plaintiff may an appellate court conclude that the award is inadequate. See Reck v. Stevens, supra; Cariere v. State Farm Insurance Co., 467 So.2d 867 (La.App.2d Cir. 1985).

Prior awards under similar circumstances serve only as a general guide. If the appellate court determines that an abuse of discretion has been committed, it is then appropriate to resort to a review of prior awards, to determine the appropriate modification of the award. In such review, the test is whether the present award is greatly disproportionate to the mass of past awards for truly similar injuries. See Reck v. Stevens, supra; Wactor v. Pickens Lumber Co., 505 So.2d 815 (La.App.2d Cir.1987), writ denied, 508 So.2d 827 (La.1987). In instances where the appellate court is compelled to modify awards, the award will only be disturbed to the extent of lowering or raising an award to the highest or lowest point which is reasonably within the discretion afforded the trial court. American Motorist Insurance Company Inc. v. American Rent-All, Inc., 579 So.2d 429 (La.1991); Scott v. Hospital Service District No. 1 of the Parish of St. Charles, 496 So.2d 270 (La.1986); Carollo v. Wilson, 353 So.2d 249 (La.1977); Coco v.

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Bluebook (online)
625 So. 2d 1337, 1993 WL 442572, Counsel Stack Legal Research, https://law.counselstack.com/opinion/theriot-v-allstate-ins-co-la-1993.