Victor Rachal v. Justin P. Brouillette

• Court: Louisiana Court of Appeal
• Decided: March 13, 2013
• Docket: CA-0012-0794
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

12-794

VICTOR RACHAL

VERSUS

JUSTIN P. BROUILLETTE, ET AL.

********** APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 233,446 HONORABLE HARRY FRED RANDOW, DISTRICT JUDGE

**********

ULYSSES GENE THIBODEAUX CHIEF JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, John D. Saunders, Jimmie C. Peters, Marc T. Amy, Elizabeth A. Pickett, Billy H. Ezell, J. David Painter, James T. Genovese, Shannon J. Gremillion, Phyllis M. Keaty, and John E. Conery, Judges.

Amy, J., concurs in part, dissents in part, and assigns reasons.

Genovese, J., concurs in part, dissents in part, and assigns reasons.

Gremillion, J., concurs in part and dissents in part for the reasons provided by Judge Amy.

Conery, J., dissents and assigns written reasons.

AFFIRMED AND AFFIRMED AS AMENDED.

Larry Alan Stewart Stafford, Stewart & Potter P. O. Box 1711 Alexandria, LA 71309 Telephone: (318) 487-4910 COUNSEL FOR: Defendant/Appellant - Justin P. Brouillette Wilbert Joseph Saucier, Jr. Wilbert J. Saucier, Jr., Inc. 2220 Shreveport Highway Pineville, LA 71360 Telephone: (318) 473-4146 COUNSEL FOR: Plaintiff/Appellee - Victor Rachal

Rodney James Littlefield 2125 St. Charles Avenue New Orleans, LA 70130 Telephone: (504) 522-7260 COUNSEL FOR: Plaintiffs/Appellees - John Dumars, et al. THIBODEAUX, Chief Judge.

Plaintiff, Victor Rachal, filed this suit on behalf of his minor son,

Nicholas, against Justin Brouillette and State Farm Mutual Automobile Insurance

Company for the wrongful death of Nicholas’s mother, Joann Isaac. Mr.

Brouillette, driving a large sports utility vehicle, crashed into Ms. Isaac and her

two daughters as they walked along a highway in Alexandria, Louisiana. All three

individuals were killed. Defendants admitted liability before trial, leaving only the

issue of damages for the jury. The jury awarded Nicholas $2,800,000 in

compensatory and $100,000 in exemplary damages. Defendants appeal the

amount of compensatory damages, and Plaintiff appeals the amount of exemplary

damages. For the following reasons, we affirm the compensatory damages and

increase the exemplary damages to $500,000.

I.

ISSUES

We will consider:

(1) whether the verdict form submitted to the jury is duplicative;

(2) whether the jury awarded an excessive amount of general damages;

(3) whether the jury erroneously awarded damages for loss of financial support;

(4) whether the jury erroneously found that Mr. Brouillette caused the accident while under the influence of a controlled dangerous substance; and

(5) whether the jury awarded an insufficient amount of exemplary damages. II.

FACTS AND PROCEDURAL HISTORY

Mr. Brouillette was driving erratically at a high speed when he

inexplicably left the highway and headed toward the right-hand shoulder. He

immediately struck Ms. Isaac and her two minor daughters as they walked side-by-

side on the shoulder near the grass. Mr. Brouillette continued driving past the

shoulder, with Ms. Isaac and one of her daughters still on the hood of his car, until

he struck one culvert, flew in the air, and crashed into a second culvert. Ms. Isaac

and her two daughters were killed. 1 Authorities discovered marijuana and

hydrocodone in Mr. Brouillette’s system immediately after the accident. He was

driving at ninety-one miles per hour when he hit the victims.

Mr. Brouillette was convicted of three counts of vehicular homicide

and sentenced to five years in prison for each count.2 After Mr. Rachal sued on

behalf of Nicholas, State Farm and Mr. Brouillette admitted liability before the

jury trial started, leaving only the issue of damages for the jury’s consideration.

After a three-day trial, the jury awarded Nicholas $2,500,000 in general damages,

$300,000 in loss of financial support damages, and $100,000 in exemplary

damages for his mother’s wrongful death. Defendants appeal the judgment and

assert the following four issues: (1) the jury verdict form is duplicative; (2) the

award of general damages is excessive; (3) the jury erroneously awarded Plaintiff

damages for loss of financial support; and (4) the jury erroneously determined that

1 The causes of action stemming from the deaths of Ms. Isaac’s daughters have been settled and are not at issue in this appeal. 2 One of Mr. Brouillette’s five-year sentences was suspended and the other two were ordered to run concurrently. Mr. Brouillette will, therefore, serve five years in prison for this crime; he is scheduled to be released in September 2013.

2 Mr. Brouillette was impaired during the accident and that his impairment caused

the accident. Mr. Rachal appeals the amount of exemplary damages as

insufficient.

III.

LAW AND DISCUSSION

Standard of Review

A jury’s award of damages is a finding of fact. We review the award

for abuse of discretion. Ryan v. Zurich Am. Ins. Co., 07-2312 (La. 7/1/08), 988

So.2d 214. The discretion vested in the trier of fact is so great that a court of

appeal should rarely disturb an award of damages. In fact, “[i]t is only when the

award is, in either direction, beyond that which a reasonable trier of fact could

assess for the effects of the particular injury to the particular plaintiff under the

particular circumstances that the appellate court should increase or reduce the

award.” Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert

denied, 510 U.S. 1114 (1994). We will not set aside the award absent manifest

error or unless it is clearly wrong. Ryan, 988 So.2d 214. Further, the trial court’s

decision to separate the elements of the general damage award on the jury verdict

form was also a finding of fact, as was the jury’s decision to award punitive

damages. Id. These factual findings are also subject to the manifest error standard

of review.

3 Discussion

Jury Verdict Form

State Farm and Mr. Brouillette argue that the trial court erred by

submitting a verdict form to the jury that separated the elements of the general

damage award. Specifically, the jury verdict form contained a separate line for

mental anguish, grief, and anxiety, to which the jury awarded Nicholas $1,000,000

and a separate line for loss of love and affection, to which the jury also awarded

him $1,000,000. Defendants assert that these two elements are duplicative. We

disagree.

Louisiana Civil Code Article 2315 mandates that “a tortfeasor must

compensate a tort victim for all of the damages occasioned by his act.”

Compensatory damages are divided into special damages and general damages.3

General damages include physical and mental pain and suffering, inconvenience,

loss of gratification, and other losses of lifestyle that cannot be definitively

measured with money. McGee v. A C And S, Inc., 05-1036 (La. 7/10/06), 933

So.2d 770. These damages are “routinely dissected” on jury verdict forms. Id. at

774. As long as the damage elements are conceptually distinct from one another,

the trial court has discretion to separate them on the verdict form. Id. A prior

panel of this court addressed this issue and determined that loss of love and

affection and mental anguish, grief, and anxiety are not conceptually different and

should not be separated on the jury verdict form. Hardy v. Augustine, 10-946

(La.App. 3 Cir. 2/2/11), 55 So.3d 1019. That court held that grief is the expression

3 No special damages are at issue in this appeal.

4 of the loss of love and affection that the plaintiff experiences, not a distinct element

of damage. We disagree.

Mental anguish, grief, and anxiety, on one hand, and loss of love and

affection, on the other hand, are independent concepts. Mental anguish and grief

refers to the “pain, discomfort, inconvenience, anguish, and emotional trauma” that

accompany the injury. McGee, 933 So.2d at 775. In this case, it refers to the

initial shock, anxiety, and distress that a ten-year old experiences as a result of the

loss of a parent. Loss of love and affection, on the other hand, goes beyond the

initial grief and emotional trauma. These damages compensate Nicholas for the

enduring and irreversible loss of his mother. While grief and anguish will wane

over time, Nicholas will always feel the absence of the traditional characteristics of

the mother-son relationship. Put another way, grief is the presence of an emotion

as a result of a loved one’s death. Loss of love and affection, however, is the

absence of an experience; specifically, the absence of a love previously bestowed.4

These two categories are distinct and separate injuries that Nicholas experienced

and will continue to experience as a result of his mother’s premature and wrongful

death. We affirm the trial court’s decision to separate them on the jury verdict

form.

The decision to separate the categories must still be evidentiary-based

and is contingent upon adequate and sufficient proof that both damages are

appropriate. Further, as always, the makeup of the jury verdict form is within the

4 To illustrate this, consider the effect of a mother’s death on two individuals: a one-year old toddler and a ten-year old adolescent. The toddler may be too young to experience the mental anguish and grief attendant such a drastic loss; he will, however, experience the absence of his mother’s love and affection throughout his lifetime. The adolescent, on the other hand, will experience both emotions to a great degree. The ability to distinguish the two elements in different circumstances demonstrates their differences.

5 trial court’s discretion. Finally, Hardy v. Augustine is overruled to the extent that it

deviates from our opinion today.

Defendants also argue that loss of society, service, and consortium,

which was a separate line on the verdict form, is duplicative of loss of love and

affection and mental anguish and grief. We find no merit in this argument. The

factors of a loss of consortium claim include: (1) loss of society and

companionship; (2) loss of support and family income; and (3) loss of performance

of material services, including educational and household help for children.

Kilpatrick v. Alliance Cas. and Reinsurance Co., 95-17 (La.App. 3 Cir. 7/5/95),

663 So.2d 62, writ denied, 95-2018 (La. 11/17/95), 664 So.2d 406. These factors

are noticeably different from the elements of loss of love and affection and mental

anguish and grief. Further, Louisiana courts regularly allow the jury to award a

separate amount for loss of service, society, and consortium. See, e.g. Brossett v.

Howard, 08-535 (La.App. 3 Cir. 12/10/08), 998 So.2d 916, writ denied, 09-77 (La.

3/6/09), 3 So.3d 492. We affirm the trial court’s decision to separate these

categories on the jury verdict form.

General Damage Award Review

Defendants assert that the award of $2,500,000 in general damages

was excessive. We disagree. We will review the damage award for abuse of

discretion.5 Only if no reasonable trier of fact could award Nicholas $2,500,000

will we disturb the award. Youn, 623 So.2d 1257.

5 Defendants contend that because the jury verdict form was duplicative, it was also misleading and, therefore, we must review the damage award de novo. We find the verdict form was not duplicative; therefore, the appropriate standard is abuse of discretion.

6 Nicholas enjoyed a close, loving relationship with his mother.

Although his parents were separated and Nicholas lived primarily with his father,

he spent most weekends with his mother. Ms. Isaac and Mr. Rachal went to great

lengths to ensure their son was in the best environment for him considering his

struggles with Attention Deficit Hyperactivity Disorder (ADHD). 6 This

thoughtfulness and attention shows Ms. Isaac was extremely involved in her son’s

life. Defendants try to minimize the effects of Ms. Isaac’s death on Nicholas;

however, the evidence suggests that Nicholas has endured severe physical and

mental trauma as a result of this tragedy. Following his mother’s death, Nicholas

suffered from hallucinations and suicidal thoughts and gained an extraordinary

amount of weight. Nicholas’s father described how Nicholas has left school on

more than one occasion to visit his mother’s grave and cry. The jury was

apparently convinced that Ms. Isaac’s death had a profound effect on Nicholas.

This finding is not clearly wrong; therefore, the jury did not abuse its discretion by

awarding $2,500,000 in general damages.

Loss of Financial Support

Defendants contend that the jury erroneously awarded Nicholas loss

of financial support damages. We find no merit in this contention. The factors

considered for an award of loss of financial support include the decedent’s present

earnings; age and life expectancy; the minor’s age at the time of decedent’s death;

the decedent’s work life expectancy; the possibility of a decrease or increase in 6 Nicholas was diagnosed with ADHD before his mother’s death and had frequent troubles in school before and after the accident. Defendants use these behavioral issues to question how much grief Nicholas actually experienced as a result of his mother’s death. We find Nicholas’s ADHD irrelevant to his entitlement to damages. This superficial linkage is a non sequitur. Further, Defendants’ contention that Nicholas’s condition somehow diminishes the love, affection, and attention his mother showed him or the grief he experiences as a result of her loss is unseemly.

7 earnings with age; and any other factors relevant to the premature demise of the

decedent. Nigreville v. Federated Rural Elec. Ins. Co., 93-1202 (La.App. 3 Cir.

7/13/94), 642 So.2d 216, writ denied, 94-2803 (La.1995), 649 So.2d 384.

Although Ms. Isaac’s income of $14,322 the year she died was not dramatically

high, it steadily increased each year, suggesting she would have continued to strive

to improve her financial situation had she lived. Ms. Isaac clothed Nicholas, fed

him, and took care of him. Defendant argues that because Mr. Rachal did not

present testimony regarding exactly how much money Ms. Isaac contributed to

raising her son, we should presume she did not contribute anything. Common

sense, however, dictates that since Ms. Isaac and Mr. Rachal maintained joint

custody of Nicholas, Ms. Isaac financially contributed to her son’s upbringing.

Further, the jury evidently believed that Ms. Isaac would have provided for her son

until she reached the limits of her work life expectancy, some thirty years in the

future. Although $300,000 may be on the higher end of the scale, it was not

abusively high.

Exemplary Damages: Impairment

Defendants assert that the jury should not have awarded exemplary

damages because the evidence was insufficient to establish Mr. Brouillette was

impaired such that his impairment caused the accident. We find this argument

meritless. Exemplary damages may be awarded upon proof that: (1) defendant

was intoxicated or had ingested a sufficient quantity of a controlled dangerous

substance to make him lose control of his mental or physical faculties; (2) the

intoxication was a cause-in-fact of the accident; and (3) the injuries were caused by

a wanton and reckless disregard for the rights and safety of others. La.Civ.Code

8 art. 2315.4; Brossett, 998 So.2d 916. Mr. Brouillette’s own admission and the

testimony presented at trial indicate that he was impaired when the accident

occurred and his impairment caused the accident. Moreover, the circumstances

surrounding the accident signify that he had a wanton and reckless disregard for

the safety of others.

First, Mr. Brouillette pleaded guilty to three counts of vehicular

homicide in violation of La.R.S. 14:32.1. This plea required Mr. Brouillette to

admit that he was under the influence of a controlled dangerous substance and that

this was a cause-in-fact of the accident. Mr. Brouillette admits, therefore, that he

was impaired and that his impairment caused the accident.

Second, Dr. William George, a pharmacologist and toxicologist,

examined the results of a blood test Mr. Brouillette submitted to immediately after

the accident. Dr. George testified that Mr. Brouillette had ingested marijuana

within six to twelve hours before his blood was drawn. The doctor also found

hydrocodone in Mr. Brouillette’s system. He further testified that the level of

marijuana and hydrocodone in Mr. Brouillette’s blood was sufficient to produce

the effects of decreased reaction time, sedation, inattention, blurred peripheral

vision, and drowsiness. Dr. George unequivocally stated that the amount of both

drugs found in his system was enough to make Mr. Brouillette lose control of his

mental and physical faculties.

The facts of this case demonstrate that Mr. Brouillette was not in

control of his mental or physical faculties and that he had a wanton and reckless

disregard for Ms. Isaac’s and her children’s safety. Mr. Brouillette was traveling at

ninety-one miles per hour when he hit Ms. Isaac and her two daughters and the

evidence suggested he sped up after he hit them, instead of slowing down. Further,

9 Mr. Brouillette carried two of the victims on the hood of his car for 134 feet until

finally crashing into a culvert. Before hitting the victims, Mr. Brouillette was

swerving in and out of traffic and driving erratically. This accident was not the

product of someone in control of his actions. 7 We find the jury properly

determined Mr. Brouillette’s impaired state caused the accident.

Exemplary Damages: Amount

Plaintiff argues that the award of exemplary damages, $100,000, was

unreasonably low. We agree and increase the award to $500,000. The purpose of

exemplary damages is to punish the defendant and deter future similar behavior.

These damages are regarded as a fine or penalty for the protection of the public

interest. Mosing v. Domas, 02-12 (La. 10/15/02), 830 So.2d 967. The following

factors are considered in determining whether the award is too high or low: (1) the

nature and extent of the harm to the plaintiff; (2) the wealth or financial situation of

the defendant; (3) the character of the conduct involved; (4) the extent to which

such conduct offends a sense of justice and propriety; and (5) the amount necessary

to deter similar conduct in the future. Id. The amount of exemplary damages is

the result of a fact-intensive inquiry into the case. These awards should only be

disturbed if the damages are such that “all mankind at first blush would find [them]

outrageous.” Id. at 972 (quoting Honda Motor Co., Ltd. v. Oberg, 512 U.S. 415,

421-22 (1994)).

The circumstances of this case illustrate the need to increase the

exemplary damages. Ms. Isaac is not merely injured, she is deceased; therefore,

7 In fact, Officer Dean White, the highest in command of the accident investigation, testified at trial that the “unnecessary deaths . . . were caused by the reckless and inattentive driving of Justin Brouillette without regard for the safety of others.”

10 the injury to this plaintiff is great. Defendants suggest that because Mr. Brouillette

had only “a small amount” of drugs in his system, his behavior was not as

reprehensible as Mr. Rachal asserts. This “small amount” of drugs was apparently

enough to cause Mr. Brouillette to drive erratically at a high speed, kill three

people, and not remember any of it. 8 We find this behavior sufficiently

reprehensible.

Defendants also argue that Mr. Brouillette’s ten years in prison is

punishment enough to deter this conduct in the future. The court notes, however,

that Mr. Brouillette will actually spend only five years in prison since two of his

five-year sentences were ordered to run concurrently (the other five year sentence

was suspended). Five years in prison for killing three people is not as punitive as

Defendants contend. Mr. Brouillette was previously convicted of driving while

intoxicated, and he was in another car accident prior to this one. Moreover, he

showed very little remorse at trial by consistently denying that he ingested

marijuana or hydrocodone, despite scientific evidence of the drugs in his system.

Mr. Brouillette clearly has no regard for the safety of others while he is driving a

vehicle and continually refuses to obey the law. As further evidence of Mr.

Brouillette’s disregard for the law, he was disciplined for possessing synthetic

marijuana while in prison. Likewise, on a separate occasion a month later, he

admitted to using marijuana and an opiate substance when ordered to undergo a

random drug test. We cannot emphasize enough the need to deter this conduct.

Defendants suggest that we should refrain from increasing the award

of exemplary damages because Mr. Brouillette will never be able to pay such a

8 Mr. Brouillette claimed at trial that he did not remember the accident.

11 high award. The defendant’s financial situation, however, is only one factor to

consider and is not dispositive.9

We find the jury abused its discretion by awarding an unreasonably

low amount of exemplary damages. Accordingly, we have determined that

$500,000 is an amount sufficient to punish Mr. Brouillette’s behavior and protect

the public interest.

V.

CONCLUSION

For the reasons above, we affirm the award of general damages and

increase the award of exemplary damages. Costs of this appeal are assigned to

Defendants, Justin Brouillette and State Farm Mutual Automobile Insurance

Company.

9 We also note that in the context of exemplary damages the defendant’s financial situation is pertinent primarily when the defendant is a large corporation, such that a small amount of damages would not deter wrongful conduct. Mosing, 830 So.2d 967. That is not the case here.

12 NUMBER 12-794

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

AMY, J, concurring in part and dissenting in part.

I respectfully dissent from the majority opinion’s conclusions regarding the

separate listings of general damages elements on the jury verdict sheet. In my

opinion, the form erroneously duplicated conceptually similar areas of recovery.

The form at issue in this case inquired, in pertinent part, as follows:

1. What amount, if any, in compensatory damages do you award on behalf of Nicholas Issac?

a. Past, present and future mental anguish, grief and anxiety due to the wrongful death and loss of his mother.

b. Past, present and future loss of the love and affection of his mother

c. Loss of society, service and consortium of his mother

d. Loss of financial support by his mother, Jo Ann Issac

(Emphasis added.)

As addressed in the majority opinion, the supreme court, in McGee v. A C

and S, Inc., 05-1036 (La. 7/10/06), 933 So.2d 770, found no error in the use of a

verdict sheet that listed “loss of enjoyment of life” as a separate element of general

damages. It noted a conceptual difference between the element of “loss of

enjoyment of life” and broad categories of general damages such as pain and

suffering, both physical and mental. However, I do not find that McGee necessarily permits the type of further

sub-division contained on the verdict sheet under review, i.e., “mental anguish,

grief, and anxiety,” “loss of love and affection” and “loss of society, service and

consortium.”

Rather, I find this court’s decision in Hardy v. Augustine, 10-946 (La.App. 3

Cir. 2/2/11), 55 So.3d 1019, writ denied, 11-0470 (La. 4/25/11), 62 So.3d 92,

squarely on point with and applicable to this case. In Hardy, the panel considered

whether the general damages element of mental pain and suffering could be further

sub-divided to list one portion of that element, “grief and anguish,” separately from

another portion of that element, “loss of love, affection, and companionship.”

Hardy rejected that further sub-division, finding that the injury, itself, is the same

for both sub-divisions. The panel determined that the former, “grief and anguish,”

is merely an expression of the latter, “loss of love, affection, and companionship.”

I adhere to that view here. Accordingly, I find that the trial court erred in

permitting “mental anguish, grief and anxiety” to be listed separately from “loss of

love and affection.”

Further, and the more pronounced problem in my opinion, is the additional

listing of “loss of society, service, and consortium.” I see no sufficient distinction

between love/affection and society/consortium, so as to permit a separate line entry

for these sub-divisions. In McGee, for example, the supreme court explained that

loss of consortium is a harm to relational interest, something that, in my opinion,

would include loss of love and affection. Additionally, jurisprudence supports the

view that a consortium claim includes, among other things, loss of love and

affection, society and companionship, services, and support. See, e.g., Willis v.

Noble Drilling, 11-598 (La.App. 5 Cir. 11/13/12), _ So.3d _ (citing Finley v. Bass,

2 478 So.2d 608 (La.App. 2 Cir. 1985)). See also Lonthier v. Northwest Ins. Co.,

497 So.2d 774 (La.App. 3 Cir. 1986) (wherein a panel of this court discussed loss

of love, companionship, and affection within the context of the element of

“society” within a consortium claim).

Finally, the potential confusion of the overlapping areas of recovery was

exacerbated by the fact that the jury was asked to make an award, not only for

“loss of society, service and consortium,” but to also make a separate award for

“loss of financial support.” As jurisprudence discusses support as an element of

consortium, I believe that these separate awards resulted in a duplicative award.

Accordingly, I find merit in the defendants’ assignment regarding the nature

of the verdict sheet and dissent from the majority opinion in this regard. Given the

patent duplication between the jury’s awards for “loss of society, service and

consortium” and “loss of financial support,” I would reverse the separate, $300,000

award for the latter.

To the extent that the remaining overall general damages award of

$2,500,000 is not an abuse of discretion, I join in the majority’s affirmation of that

overall figure. See Hardy, 55 So.2d 1019 (wherein the panel reviewed the overall

general damage award for abuse of discretion after determining that the jury

verdict sheet should not have contained separate lines for “loss of love, affection

and companionship” and for “grief and anguish.”)

As for the remaining issues, including the amendment of the abusively low

exemplary damages awarded, I join in the majority opinion.

3 STATE OF LOUISIANA

GENOVESE, J., concurs in part, dissents in part, and assigns the following

reasons.

I agree with the majority as to the jury verdict form to the extent that mental

anguish, loss of love and affection, and loss of consortium are separate items of

damage justifying a separate award for each on the jury verdict form provided

there is sufficient evidence in the record proving same. I likewise agree with the

majority as to the jury award for loss of financial support.

I disagree, however, with the majority’s affirmation of the $2,500,000.00

general damage award. The fact-finder, whether it be a judge or jury, is not at

liberty to award whatever it wants as a general damage award. There are legal

bounds and limitations (even on jury awards). As an errors court, the standard of

reviewing a general damage award is abuse of discretion. Howard v. Union

Carbide Corp., 09-2750 (La. 10/19/10), 50 So.3d 1251. If the reviewing court

finds an abuse of discretion, then the award must be increased or decreased to the

highest or lowest reasonable amount based on similar prior awards and the

evidence produced in support of the award. Id.

In the instant case, the jury awarded $2,500,000.00 in general damages for

the wrongful death of a parent. This is more than threefold the highest amount

ever awarded in this state for the wrongful death of a parent. Though I am fully cognizant and mindful of the heinous and horrific facts in this case, the law

requires that such an award at least be somewhat in line with prior awards for the

wrongful death of a parent. In my view, the jury award in this case must be

reduced.

I also disagree with the majority’s fivefold increase in the jury’s award of

punitive damages. There was no evidence in the record warranting such an

increase; nor do I find that the jury abused its discretion in awarding $100,000.00

in punitive damages.

I would affirm the trial court’s ruling relative to the jury verdict form in

providing for separate elements of damage for mental anguish, loss of love and

affection, and loss of consortium. I would also affirm the jury awards for loss of

financial support and punitive damages. Finally, I would amend the jury’s

$2,500,000.00 general damage award by reducing it to $1,600,000.00, representing

$500,000.00 for mental anguish, $800,000.00 for loss of love and affection, and

$300,000.00 for loss of consortium. NUMBER 12-794

JUSTIN P. BROUILLETTE, ET AL

CONERY, J. concurs in part, dissents in part, and assigns written reasons.

PROCEDURAL POSTURE

Sitting en banc, the majority voted to uphold a Jury Verdict Form that

separated general damages into three parts and affirmed a record general damage

award of $2,500.000.00 on behalf of a then ten-year-old boy for the wrongful death

of his mother. Two members of the court dissented in part and concurred in part,

finding the jury verdict form was improper, but the error did not lead to an

excessive verdict. The majority and concurring opinions affirmed the jury’s award

for loss of support as well as the jury’s decision to award punitive damages but

voted to increase the punitive damage award from $100,000.00 to $500,000.00.

Another member of the court concurred with the majority, finding the Jury Verdict

Form proper, but dissented on the issue of general damages, finding the total jury

award excessive. That judge concurred with the majority on the jury’s decision to

award punitive damages and agreed with the amount set by the jury.

For the reasons which follow, I respectfully dissent from the affirmation of

the general damage award and the award for loss of support. I join the dissenting

opinion holding that the separation of general damages on the Jury Verdict Form

was error. I concur in the decision to affirm the jury’s finding that punitive damages were due, but dissent from the increase in punitive damages.

ISSUES AND DISCUSSION

There are four assignments of error for us to review.

Assignment of Error Number 1- Jury Verdict Form

I join the concurring opinion and would adopt the rationale of Hardy v.

Augustine, 10-946 (La.App. 3 Cir. 2/2/11), 55 So.3d 1019, writ denied, 11-0470

(La. 4/25/11), 62 So.3d 92.

Assignment of Error Number 2- Excessive Verdict

The jury awarded $2,500,000.00 in general damages. The standard used in

reviewing a general damage award is abuse of discretion. I disagree with the

majority and concurring opinions and find that the jury award is an abuse of

discretion. The jury awarded damages as follows:

1. What amount, if any, in compensatory damages do you award on behalf of Nicholas Isaac?

a. Past, present and future mental anguish, grief and anxiety due to the wrongful death and loss of his mother $1,000,000.00 b. Past, present and future loss of the love and affection of his mother $1,000,000.00 c. Loss of society, service and consortium of his mother $ 500,000.00 d. Loss of financial support by his mother, JoAnn Isaac $ 300,000.00 e. Funeral expenses for his mother, Jo Ann Isaac $ 18,819.901

Finding that the jury abused its discretion, the award must be reduced to the

highest amount based on similar prior awards and the evidence produced at trial.

Howard v. Union Carbide Corp., 09-2750 (La. 10/19/10), 50 So.3d 1251.

1 The funeral expenses were stipulated to be $10,819.90, and that amount was corrected in the Final Judgment. There was no appeal from the award for funeral expenses.

2 The highest award ever affirmed by a Louisiana appellate court for the

wrongful death of a parent brought on behalf of a minor child was $750,000.00.

Raymond v. Gov’t Employees Ins. Co., 09-1327 (La.App. 3 Cir. 6/2/10), 40 So.3d

1179, writ denied, 10-1569 (La. 10/8/10), 46 So.3d 1268. The jury award in this

case is three and one-third times higher. The child in this case, Nicholas, was only

ten years old and was living with his father at the time of his mother’s death. The

child in the Raymond case had an intact family and had an especially close and

loving relationship with his parents.

The record in this case on the issue of general damages is scant. Quite

simply, the evidence does not support such a high award. I would reverse the

jury’s $2,500,000.00 general damage award and, using the abuse of discretion

standard, would award $750,000.00, the highest award that can be affirmed as set

by this court in Raymond. See also Brossett v. Howard, 08-535 (La.App. 3 Cir.

12/10/08), 998 So.2d 916, writ denied, 09-0077 (La. 3/6/09), 3 So.3d 492

($500,000.00 for a nine-month-old daughter who lost her father when an

intoxicated motorist drove across the highway striking his vehicle); Estate of

Frances v. City of Rayne, 08-359 (La.App. 3 Cir. 10/03/07), 966 So.2d 1105, writ

denied, 07-2119 (La. 2/15/08), 976 So.2d 176 ($650,000.00 to ten-year-old son

whose father was killed as a result of a shooting involving a low-speed police

pursuit—the father was the primary caregiver and the death of his father was

devastating to the child).

Assignment of Error Number Three- Loss of Support

The evidence at trial was almost totally lacking as to any type of support the

mother provided to Nicholas. In order to be compensated for this item of damages,

3 this court has held there must be proof of “prior actual support.” Newsom v. State,

Dept. of Trans. and Dev., 93-815, p. 10 (La.App. 3 Cir. 3/30/94), 640 So.2d 374,

381, writ denied, 641 So.2d 207 (La.1994).

The evidence showed that at the time of her death, Ms. Isaac was making

about $15,000.00 per year. She had to support herself and two teenage daughters

on that income. There was very little money, if any, available to send for Nicholas’

support, and there was no evidence that Ms. Isaac sent any amount whatever to

Victor Rachal, Nicholas’ father.

There was some testimony in the record from the grandmother that Ms. Isaac

“dressed her children well and took good care of them.” However, that testimony

falls far short of proving actual financial support. Though it is part of the parental

obligation to clothe, feed, and shelter one’s child, there was no evidence as to how

much Ms. Isaac spent on clothing, food, and shelter for Nicholas.2 The burden of

proof is on the plaintiff to prove each element of damages by a reasonable

preponderance of the evidence. At best, the evidence showed that Ms. Isaac

bought some clothes and furnished some food and shelter for Nicholas on the

weekends he was with her.

Based on circumstantial evidence, Ms. Isaac clothed, housed, and fed

Nicholas about 100 days per year, counting most weekends and some split

summers and holidays. At a generous estimated expense of $100.00 per day, she

would have spent $10,000.00 per year. Loss of support through age eighteen, i.e.,

for ten years during the remainder of Nicholas’ minority, would then total

$100,000.00. I would award $100,000.00 for loss of support, being the highest

award supported by the record. See Nigreville v. Federated Rural Elec. Ins. Co.,

2 La.Civ.Code art. 227

4 93-1202, (La.App. 3 Cir. 10/11/94), 642 So.2d 216, writ denied, 94-2803 (La.

1/27/95), 649 So.2d 384.

Assignment of Error Number 4- Impairment and Punitive Damages

Defendant alleges the jury erred in finding that Justin Brouillette was

impaired at the time he lost control of the vehicle he was driving, and that his

impairment was a cause in fact of the death of Ms. Isaac.

I agree with the majority and concurring opinions on this issue and would

affirm the jury’s finding that Mr. Brouillette was clearly impaired by illegal drugs

at the time he struck Ms. Isaac, and his impairment was a substantial factor in

causing her death.

Plaintiff answered the appeal and claimed as an assignment of error that the

$100,000.00 awarded by the jury for punitive damages was an abuse of discretion

and erroneously low.

There are no Louisiana appellate cases increasing a trial court’s punitive

damage award. Defendant in this case was convicted of three counts of vehicular

homicide, and on two of the counts he was sentenced to five years at hard labor to

run concurrently. His expected parole release date, according to the record, is

2013. Because of lack of means, it is highly unlikely that Mr. Brouillette will ever

be able to pay the award made by the jury. Inability to pay is a substantial factor

for the jury to consider in making an award of punitive damages. Grefer v. Alpha

Technical, 02-1237 (La.App. 4 Cir. 08/08/07), 965 So.2d 511, writ denied, 07-

1800 (La. 11/16/07), 967 So.2d 523. The $100,000.00 awarded in this case was

well within the jury’s discretion.

For all of these reasons, I would reverse the record $2,500,000.00 Judgment

5 of the trial court for general damages and, using the abuse of discretion standard,

award $750,000.00 in compensatory general damages, the highest award supported

by the evidence and the case law. I join the dissenting opinion on the issue of

duplication of damages on the Jury Verdict Form and would follow the Hardy

rationale. I find the $300,000.00 award for loss of support to be an abuse of

discretion and would award $100,000.00 for loss of support. I would maintain the

$100,000.00 punitive damage award set by the jury.