Worsham v. Hanover Insurance Co.

378 So. 2d 1060, 1979 La. App. LEXIS 3404
CourtLouisiana Court of Appeal
DecidedDecember 3, 1979
DocketNo. 14003
StatusPublished
Cited by1 cases

This text of 378 So. 2d 1060 (Worsham v. Hanover Insurance Co.) 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
Worsham v. Hanover Insurance Co., 378 So. 2d 1060, 1979 La. App. LEXIS 3404 (La. Ct. App. 1979).

Opinion

JONES, Judge.

Defendant, Hanover Insurance Company, appeals a general damage award in favor of plaintiff, Margie Worsham, in the amount of $10,000. The sole issue on appeal is the quantum awarded to Mrs. Worsham. We reduce the general damages award to the sum of $6,500 and as amended, affirm.

On September 11, 1977 Mrs. Worsham was injured in a three-car collision. She had stopped her vehicle at an intersection and was signalling for a left turn. Another vehicle, driven by a Mr. Banks, stopped behind Mrs. Worsham as she waited an opportunity to turn. Defendant, Mance-field Eatman, traveling behind Banks, failed to stop and hit the Banks vehicle, which in turn caused the Banks vehicle to strike Mrs. Worsham’s car. In this manner plaintiff was injured.

The trial court held that plaintiff proved general damages of $10,000, property damages of $684.17, and medical expenses of (1) orthopedic charges for examination— $90.00; (2) family physician charge — $8.00; and (3) charges for the services of a chiropractor — $287.00.

Defendant contends the trial court abused its discretion when it awarded plaintiff $10,000 for general damage. Defendant seeks to have the general damage award reduced to between $2,000 and $4,500. Defendant argues that Mrs. Wor-sham suffered acute pain for only three months and displayed no objective symptoms of injury six months after the accident. Defendant emphasized the amount of the medical specials ($385.00, only $98.00 of which went to medical doctors) demonstrates the non-severity of plaintiff’s injury and the excessiveness of the trial court’s award. Defendant contends the fact that plaintiff only saw medical doctors on two occasions, plus the fact she neither missed a day of work nor took any pain medication shows the abuse of discretion in the trial court’s award and mandates an appellate reduction of this award.

In the assessment of general damages: “. . . much discretion must be left to the [trial] judge . . .” LSA-C.C. art. 1934(3).

This code article was construed in Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (La.963), where the supreme court delineated the issue before the appellate court to be:

“. . . whether the judge . has abused its discretion ... in fixing the award . . . ” Gaspard at' 158.

Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), elaborated on the procedure to be used by the appellate courts. Coco re-emphasized that before an appellate court can change an award made by a trial court, the record must clearly reveal that the trier of fact abused his discretion in making the award. Reck v. Stevens, 373 So.2d 498 (La.1979), reasserted the holding in Coco that an abuse of the trial court’s much discretion must first be found before the appellate court can inquire into what change in the award may be made. Reck also reiterates any change that must be made is done by raising the amount to the lowest figure which the trial court could have assessed in the exercise of his discretion (in the case of an increase) or by lowering the amount to the highest figure which the trial court could have awarded (in the case of a decrease):

“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 (citations omitted) or insufficient.” Reck at 501. (emphasis ours).

The role of prior awards in previous cases in the initial determination of whether there is an abuse of discretion is limited by Reck as follows:

“The prior awards may serve as an aid in this determination [i. e., the initial determination of excessiveness or insufficien[1062]*1062cy] 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 . . Reck at 501.

Reck pointed out that after an abuse of discretion is determined prior awards then may be used as follows:

“. . . Only after such determination of abuse has been reached, is a resort to prior awards appropriate under Coco for purposes of then determining what could be an appropriate award for the present case.” Reck at 501.

Mrs. Worsham complained of no injury at the time of the accident. However, about an hour after the accident she realized she could not grip the wheel with her right hand. The next day, September 12, 1977, she began to have severe pain in her neck and shoulders. She then went to see a chiropractor. The chiropractor testified plaintiff was suffering from cervical, lumbar, and shoulder pain. He observed muscle spasms in Mrs. Worsham’s neck and shoulder, and expressed the opinion these problems were direct results of the accident. He opined the lumbar pain was not related to the accident. The chiropractor saw Mrs. Worsham at weekly intervals until December 22, 1977, and thereafter once every two weeks until July 26, 1978, when treatment was discontinued on a regular basis. He testified he saw plaintiff on October 31, 1978 and her symptoms were acute. He also saw plaintiff on January 17th and 30th, 1979. He testified his examination of Mrs. Worsham revealed objective symptoms for about three months following the accident, and advised her not to do heavy housework or lift heavy objects for a period of several months. He testified he treated plaintiff’s neck and shoulder by adjustment of her spine, though he did not make it clear what these adjustments consisted of. Under cross-examination he opined the adjustments used to treat plaintiff’s injuries were also effective in the treatment of diabetes and kidney ailments.

Plaintiff went to Dr. Richard Hanna, a general practitioner, on August 5, 1978. Dr. Hanna sent her to Dr. W. S. Bundrick, an orthopedic surgeon. Dr. Hanna did not treat plaintiff, though he examined her neck and found:

“There was a little tenderness there. I didn’t write it down.”

Dr. Bundrick saw plaintiff on August 8, 1978. After examining plaintiff, Dr. Bun-drick’s opinion was that plaintiff had a chronic and intermittent cervical myoliga-mentous strain which he could relate to the car accident of September 1977. Plaintiff also had tendonitis in her right elbow, but Dr. Bundrick did not relate this injury to the accident. There is no evidence that plaintiff ever complained to her chiropractor about her right elbow nor that she mentioned it to Dr. Hanna. She made no complaint of lumbar discomfort to Dr. Bundrick or Dr. Hanna. Dr. Bundrick placed her on muscle relaxants and she was told of exercises to do to help her neck. He stated there was a possibility the cervical strain might recur, but if Mrs. Worsham exercised her neck the way she was told, the chances of recurrence of neck symptoms would be lessened. At the time of Dr. Bundrick’s examination there were no muscle spasms, though he found tenderness in the muscles of plaintiff’s neck. The neurological examination was normal, indicating no nerve root irritation or disc involvement.

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378 So. 2d 1060, 1979 La. App. LEXIS 3404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/worsham-v-hanover-insurance-co-lactapp-1979.