Thibeaux v. Trotter

883 So. 2d 1128, 2004 WL 2181417
CourtLouisiana Court of Appeal
DecidedSeptember 29, 2004
Docket04-482
StatusPublished
Cited by25 cases

This text of 883 So. 2d 1128 (Thibeaux v. Trotter) 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
Thibeaux v. Trotter, 883 So. 2d 1128, 2004 WL 2181417 (La. Ct. App. 2004).

Opinion

883 So.2d 1128 (2004)

John Nathan THIBEAUX
v.
Chuck R. TROTTER, et al.

No. 04-482.

Court of Appeal of Louisiana, Third Circuit.

September 29, 2004.

*1129 Randal L. Menard, Lafayette, LA, for Plaintiff/Appellee, John Nathan Thibeaux.

L. Lane Roy, Dawn L. Morris, Esq., Preis, Kraft & Roy, Lafayette, LA, for Defendants/Appellants, Westport Insurance Company, Chuck R. Trotter, Schilling Distributing Company, Inc.

Court composed of JIMMIE C. PETERS, GLENN B. GREMILLION, and BILLY H. EZELL, Judges.

GREMILLION, Judge.

The defendants, Schilling Distributing Company, Inc., Chuck R. Trotter, and Westport Insurance Company (collectively referred to as Schilling), appeal a jury verdict awarding the plaintiff, John Nathan Thibeaux, damages for future lost wages/loss of earning capacity and future medical expenses. For the following reasons, we affirm.

FACTS

Thibeaux filed suit against Schilling after he was rear-ended by one of its delivery trucks on August 4, 2000. Schilling does not dispute liability. This matter proceeded to trial solely on the issue of damages. Following a jury trial, the jury awarded Thibeaux damages totaling *1130 $800,092.77. The jury award was broken down into the following categories:

GENERAL DAMAGES
Physical injury suffered           $ 75,000.00
                                    __________
Pain & Suffering, both physical
and mental                         $ 75,000.00
                                    __________
Physical impairment                $     0
                                    __________
Permanent disability, if any       $     0
                                    __________
Loss of enjoyment of life          $     0
                                    __________
SPECIAL DAMAGES
Past Lost Wages                    $ 30,000.00
                                    __________
Future Lost Wages/Loss of
Earning Capacity                   $560,000.00
                                    __________
Past Medical Expenses              $ 25,092.77
                                    __________
Future Medical Expenses            $ 35,000.00
                                    __________

In response to this verdict, Schilling filed a motion for judgment notwithstanding the verdict and, alternatively, for a new trial arguing that the jury's award for future lost wages/loss of earnings capacity was inconsistent with its finding that Thibeaux suffered no permanent disability. It further argued that the award of $35,000 in future medical expenses was purely speculative and should be reduced to the amount proven at trial, $1500. Subsequent to a hearing, the trial court denied the motion finding that the awards made by the jury were "amply supported by the evidence that was presented." This appeal by Schilling followed.

ISSUES

On appeal, Schilling reurges its JNOV arguments that the award of damages for future lost wages/loss of earning capacity was inconsistent with the finding of no permanent disability and seeks a reduction of the future medical expenses from $35,000 to $1500.

We further note that Thibeaux has raised three assignments of error in his appellate brief asking for an increase in the awards for past and future lost wages/loss of earning capacity and future medical expenses. However, since he failed to answer the appeal or appeal in his own right, as required by La.Code Civ.P. art. 2133, he waived his right to seek a modification of this judgment. See Matthews v. Consol. Cos., Inc., 95-1925 (La.12/8/95), 664 So.2d 1191. Thus, we shall not address his assignments of error.

FUTURE LOST WAGES

The jury awarded Thibeaux $560,000 in future lost wages/loss of earning capacity, but found that he suffered no monetary loss for permanent disability from the August 4, 2000 accident. Thus, Schilling argues that the jury award is inconsistent and should be reversed.

The types of damages awarded in a personal injury action consist of general and special damages. General damages, are speculative in nature and, thus, incapable of being fixed with any mathematical certainty. They include pain and suffering, physical impairment and disability, and loss of enjoyment of life. Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70. Special damages, however, may be determined with some degree of certainty and include past and future lost wages and past and future medical expenses. Id. In this instance, the jury awarded Thibeaux special damages in the absence of an award for general damages.

In Wainwright, the supreme court held that it was not, per se, error for a jury to award a plaintiff special damages (medical expenses), but not to award general damages (pain and suffering). Rather than performing a de novo review in such a situation, the supreme court held that the proper course of action is for the reviewing court to first determine whether the factfinder's "determination that the plaintiff is entitled to [special damages] but not to general damages is so inconsistent as to *1131 constitute an abuse of discretion. Only after the reviewing court determines that the factfinder has abused its much discretion can that court conduct a de novo review of the record." Id. at 76. The matter at issue differs from Wainwright in that Schilling is not contesting the jury's failure to award general damages, rather, it argues that the jury erred in awarding special damages (future lost wages/loss of earning capacity) in the face of a zero award for general damages (permanent disability).

The plaintiff bears the burden of proving entitlement to special damages by a preponderance of the evidence. Hornsby v. Bayou Jack Logging, 03-1544 (La.App. 3 Cir. 5/5/04), 872 So.2d 1244. An award of special damages is reviewed pursuant to the manifest error standard of review, unlike a general damage award which is reviewed pursuant to the abuse of discretion standard. Id. Thus, the "adequacy or inadequacy of the award should be determined by the facts or circumstances of the case under consideration." Id. at 1248. Thus, we must first determine whether the jury was manifestly erroneous in awarding Thibeaux $560,000 in future lost wages/loss of earning capacity.

After reviewing the record in its entirety, we first note that Thibeaux presented evidence that more probably than not, he has suffered permanent disability as a result of this accident. He was diagnosed as suffering from chronic pain syndrome of the lower back secondary to a ligament disruption at L5-S1 by Dr. Louis Blanda, an orthopedic surgeon. Dr. Blanda assigned Thibeaux a five percent total body disability and restricted him to light duty work. He was further diagnosed as suffering from moderate depression and chronic pain syndrome by Dr. F.T. Friedberg, a clinical psychologist. Although Schilling presented evidence that Thibeaux suffered a lower back injury in a 1984 accident, Dr. Blanda, the treating physician, reported that diagnostic testing performed at the time revealed no problems at L5-S1. While he released Thibeaux to light-duty work in 1985, after fifteen months of treatment, Dr. Blanda noted that Thibeaux was released to full unrestricted activities by Dr. Thomas Laborde, a physiatrist, on November 13, 1985. Thibeaux then worked fifteen years for his employer, Williams Gas Pipeline, as a maintenance man and equipment operator, both manual labor positions, without any complaints. Accordingly, we find that more probably than not, Thibeaux proved he suffered permanent disability as a result of the August 4, 2000 accident.

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Cite This Page — Counsel Stack

Bluebook (online)
883 So. 2d 1128, 2004 WL 2181417, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thibeaux-v-trotter-lactapp-2004.