Valentine v. Wells

540 So. 2d 344, 1988 WL 141447
CourtLouisiana Court of Appeal
DecidedDecember 20, 1988
DocketCA 87 1382
StatusPublished
Cited by9 cases

This text of 540 So. 2d 344 (Valentine v. Wells) 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
Valentine v. Wells, 540 So. 2d 344, 1988 WL 141447 (La. Ct. App. 1988).

Opinion

540 So.2d 344 (1988)

Calvin L. VALENTINE, and his wife, Diana B. Valentine
v.
Anthony L. WELLS, Hobbs Construction & Development, Inc., and Aetna Casualty & Surety Company.

No. CA 87 1382.

Court of Appeal of Louisiana, First Circuit.

December 20, 1988.
Rehearing Denied April 19, 1989.
Writ Denied June 16, 1989.

William D. Hunter, Hunter & Plattsmier, Morgan City, for plaintiffs.

Frank M. Coates, Jr., Taylor, Porter, Brooks and Phillips, Baton Rouge, for South Carolina Ins. Co., excess carrier for defendants Anthony Wells & Hobbs Constr.

Before CARTER, LANIER and LeBLANC, JJ.

LANIER, Judge.

This is a suit for damages in tort arising out of an automobile accident in which the front of a following vehicle struck the rear of a preceding vehicle. The plaintiffs are husband and wife and were in the preceding vehicle. The defendants are the corporate owner of the following vehicle, the owner's employee who was driving the following vehicle, and the primary insurer of the vehicle. The defendants stipulated liability, and the case went to trial by jury on quantum. The jury rendered lump sum awards of $1,000,000 in favor of the plaintiff-husband and $110,000 in favor of the plaintiff-wife. The trial court rendered judgment in accordance with the jury's verdicts and denied motions for judgment notwithstanding the verdicts and new trial. The defendants took this suspensive appeal. The excess insurer of the owner of the following vehicle and its driver took a devolutive appeal.[1] While this appeal was pending, the primary insurer settled with the plaintiffs and was released. The plaintiffs reserved their rights against all other parties to this appeal, subject to a credit for the amount paid by the primary insurer.[2] The plaintiffs answered the appeals seeking increases in their awards.

*345 FACTS

On April 24, 1985, at approximately 9:10 a.m., Calvin L. Valentine was operating his 1969 GMC pickup truck in a southerly direction on First Street in the city of Morgan City, St. Mary Parish, Louisiana. Mr. Valentine's wife, Diana B. Valentine, was riding as a guest passenger in this vehicle. At the same time and place, Anthony L. Wells was operating a 1979 Chevrolet dump truck owned by Hobbs Construction & Development, Inc. (Hobbs) in a southerly direction on First Street, and the front of this vehicle struck the rear of the Valentine vehicle. The Valentine vehicle was knocked into a parked car and struck by the truck again. Wells was an employee of Hobbs and was acting in the course and scope of his employment. Aetna Casualty & Surety Company (Aetna) was the primary insurer of Hobbs and Wells. South Carolina Insurance Company (South Carolina) is the excess insurer of Hobbs and Wells.

QUANTUM

Appellants assert the judgments in favor of Mr. and Mrs. Valentine are "grossly disproportionate and excessive" and should be reduced. The Valentines contend the judgments are inadequate and should be increased.

The jury rendered a lump sum award for damages of $1,000,000 for Calvin and $110,000 for Diana. The proper standard for appellate review of a trial court's award of damages is set forth in Reck v. Stevens, 373 So.2d 498, 501 (La.1979), as follows:

Before a trial court award may be questioned as inadequate or excessive, the reviewing court must look first, not to prior awards, but to the individual circumstances of the present case. Only after analysis of the facts and circumstances peculiar to this case and this individual may a reviewing court determine that the award is excessive.
Thus, the initial inquiry must always be directed at whether the trier court's award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact's "much discretion," La.Civ.C. art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive, ... or insufficient,.... Only after such determination of abuse has been reached, is a resort to prior awards appropriate under Coco for purposes of then determining what would be an appropriate award for the present case.
In the initial determination of excessiveness or insufficiency, an examination of prior awards has a limited function—if indeed the facts and circumstances of the prior awards are closely similar to the present. The prior awards may serve as an aid in this determination only where, on an articulated basis, the present award is shown to be greatly disproportionate to past awards (not selected past awards, but the mass of them) for (truly) "similar" injuries, see Coco [v. Winston Industries, Inc.,] at 341 So.2d [332], 334 [(La.1976)].
However, absent an initial determination that the trial court's very great discretion in the award of general damages has been abused under the facts of this case, the reviewing court should not disturb the trier's award. [Citations omitted.] [Footnote omitted.]

Neither special verdicts nor interrogatories were used in the trial court to itemize the elements of damage. A lump sum judgment of damages is normally presumed to award all items of damage *346 claimed, and the appellant's burden of proving that the fact finder abused its much discretion is more difficult than usual because the intention to award a specific amount for any particular item is not readily ascertainable. Each case must be determined on its own facts and circumstances, and we must examine each element of damage claimed to determine if there was an abuse of discretion. See Dunaway v. Rester Refrigeration Service, Inc., 428 So.2d 1064 (La.App. 1st Cir.), writ denied, 433 So.2d 1056 (La.1983).

Accordingly, we must examine the record to determine whether the jury abused its discretion in its quantum awards. If we find an abuse of discretion, the award must be reduced to the maximum amount or increased to the minimum amount which was reasonably within the discretion of the trial court.

Mr. Valentine's Damages

Mr. Valentine sought recovery for the following elements of damages: (1) medical expenses; (2) loss of income and impairment to earning capacity; (3) injury to his head, back and spine; (4) pain, suffering, mental anguish, distress and emotional upset; and (5) loss of consortium.

After the accident, Mr. Valentine was taken to Lakewood Hospital in Morgan City where he was treated by Dr. Verne Thibodeaux. After two or three days, he requested to be discharged from the hospital because his wife was also in the hospital and his children were at home. Following his release from the hospital, his back started bothering him, so he sought treatment from Dr. Thibodeaux. He was readmitted into Lakewood Hospital where he stayed for seven days and was put into traction for lumbar sprain. After this hospital stay, his back did not get any better, so he was put into the hospital a third time for approximately ten days.

Mr. Valentine testified his back never got any better. He had a burning sensation in his low back and numbness down his legs. He could not bend, walk, sit or stand for very long without pain. He plans to see Dr. Kenneth Vogel and let him perform a rhizotomy. However, he was told by Dr. Vogel that this procedure would only relieve about 40% of his pain.

Mr. Valentine testified that before the accident he was in good health and worked as a machinist at E.J.

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Cite This Page — Counsel Stack

Bluebook (online)
540 So. 2d 344, 1988 WL 141447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/valentine-v-wells-lactapp-1988.