Brandy Lynn Fecke, Stephen C. Fecke, and Karen Fecke v. the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #048
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinion handed down on the 23rd day of September, 2016, is as follows:
BY CLARK, J.:
2015-C -1806 BRANDY LYNN FECKE, STEPHEN C. FECKE, AND KAREN FECKE v. THE
C/W BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND
2015-C -1807 AGRICULTURAL AND MECHANICAL COLLEGE (Parish of E. Baton Rouge)
Accordingly, for the above reasons, the judgment of the court of
appeal is reversed insofar as it held Brandy was entitled to
legal interest on an award for future medical care and ordered
said interest had to be paid into the FMCF; affirmed insofar it
held Brandy was not entitled to recover attorney's fees and costs
from an award for future medical care prior to its placement into
the FMCF; and reversed insofar as it vacated Brandy's award for
loss of future earnings, and the trial court judgment awarding
loss of future earnings reinstated.
REVERSED IN PART; AFFIRMED IN PART; AND TRIAL COURT JUDGMENT
REINSTATED IN PART.
WEIMER, J., concurs in the result and assigns reasons.
09/23/16
SUPREME COURT OF LOUISIANA
No. 2015-C-1806
CONSOLIDATED WITH
No. 2015-C-1807
BRANDY LYNN FECKE, STEPHEN C. FECKE, AND KAREN FECKE
VERSUS
THE BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY
AND AGRICULTURAL AND MECHANICAL COLLEGE
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FIRST CIRCUIT, PARISH OF EAST BATON ROUGE
CLARK, J.
These consolidated writs arise from a personal injury suit brought pursuant
to the Louisiana Governmental Claims Act, La. Rev. Stat. 13:5101 et seq., with
specific reference to La. Rev. Stat. 13:5106 1. The plaintiffs, Brandy Lynn Fecke,
1
La. Rev. Stat. 13:5106, provides:
A. No suit against the state or a state agency or political subdivision shall be instituted in any court other
than a Louisiana state court.
B. (1) The total liability of the state and political subdivisions for all damages for personal injury to any
one person, including all claims and derivative claims, exclusive of property damages, medical care and
related benefits and loss of earnings, and loss of future earnings, as provided in this Section, shall not
exceed five hundred thousand dollars, regardless of the number of suits filed or claims made for the
personal injury to that person.
(2) The total liability of the state and political subdivisions for all damages for wrongful death of any one
person, including all claims and derivative claims, exclusive of property damages, medical care and
related benefits and loss of earnings or loss of support, and loss of future support, as provided in this
Section, shall not exceed five hundred thousand dollars, regardless of the number of suits filed or claims
made for the wrongful death of that person.
(3)(a) In any suit for personal injury against a political subdivision wherein the court, pursuant to
judgment, determines that the claimant is entitled to medical care and related benefits that may be
incurred subsequent to judgment, the court shall order that a reversionary trust be established for the
benefit of the claimant and that all medical care and related benefits incurred subsequent to judgment be
paid pursuant to the reversionary trust instrument. The reversionary trust instrument shall provide that
such medical care and related benefits be paid directly to the provider as they are incurred. Nothing in this
Paragraph shall be construed to prevent the parties from entering into a settlement or compromise at any
time whereby medical care and related benefits shall be provided, but with the requirement of establishing
a reversionary trust.
(b) Any funds remaining in a reversionary trust that is created pursuant to Subparagraph (3)(a) of this
Subsection shall revert to the political subdivision that established the trust, upon the death of the
claimant or upon the termination of the trust as provided in the trust instrument. The trustee may obtain
the services of an administrator to assist in the administration of the trust. All costs, fees, taxes, or other
charges imposed on the funds in the trust shall be paid by the trust. The trust agreement may impose such
other reasonable duties, powers, provisions, and dispute resolution clauses as may be deemed necessary
or appropriate. Disputes as to the administration of the trust can be appealed to the district court. Nothing
in this Paragraph shall preclude the political subdivision from establishing other alternative funding
mechanisms for the exclusive benefit of the claimant. The terms and conditions of the reversionary trust
instrument or other alternative funding mechanism, prior to its implementation, must be approved by the
court. The parties to the case may present recommendations to the court for the terms and conditions of
the trust instrument or other funding mechanism to be included in the order. Upon request of either party,
the court shall hold a contradictory hearing before granting a final order implementing the reversionary
trust or the alternative funding mechanism.
(c) In any suit for personal injury against the state or a state agency wherein the court pursuant to
judgment determines that the claimant is entitled to medical care and related benefits that may be incurred
subsequent to judgment, the court shall order that all medical care and related benefits incurred
subsequent to judgment be paid from the Future Medical Care Fund as provided in R.S. 39:1533.2.
Medical care and related benefits shall be paid directly to the provider as they are incurred. Nothing in
this Subparagraph shall be construed to prevent the parties from entering into a settlement or compromise
at any time whereby medical care and related benefits shall be provided but with the requirement that they
shall be paid in accordance with this Subparagraph.
C. If the state or a state agency or political subdivision is held liable for damages for personal injury or
wrongful death, the court shall determine:
(1) The amount of general damages exclusive of:
(a) Medical care.
(b) Related benefits.
(c) Loss of earnings and/or support.
(d) Loss of future earnings and/or support.
(2) The amount of medical care, related benefits and loss of earnings and/or support to date of judgment.
(3) Whether the claimant is in need of future medical care and related benefits and the amount thereof;
and
(4) Whether there will be a loss of future earnings or support, and the amounts thereof.
D. (1) “Medical care and related benefits” for the purpose of this Section means all reasonable medical,
surgical, hospitalization, physical rehabilitation, and custodial services, and includes drugs, prosthetic
devices, and other similar materials reasonably necessary in the provision of such services.
(2) “Loss of earnings” and “loss of support” for the purpose of this Section means any form of economic
loss already sustained by the claimant as a result of the injury or wrongful death which forms the basis of
the claim. “Loss of future earnings” and “loss of future support” means any form of economic loss which
the claimant will sustain after the trial as a result of the injury or death which forms the basis of the claim.
(3) “Reversionary trust” means a trust established by a political subdivision for the exclusive benefit of
the claimant to pay the medical care and related benefits as they accrue, including without limitation
reasonable and necessary amounts for all diagnosis, cure, mitigation, or treatment of any disease or
condition from which the injured person suffers as a result of the injuries, and the sequelae thereof,
sustained by the claimant on the date the injury was sustained. The trustee shall have the same fiduciary
duties as imposed upon a trustee by the Louisiana Trust Code. Nothing herein shall limit the rights of
claimants to contract with respect to attorney fees and costs.
(4) “Derivative claims” include but are not limited to claims for survival or loss of consortium.
E. The legislature finds and states:
(1) That judgments against public entities have exceeded ability to pay on current basis.
(2) That the public fisc is threatened by these judgments to the extent that the general health, safety, and
welfare of the citizenry may be threatened.
2
and her parents Stephen and Karen Fecke, and the defendant, the Board of
Supervisors of Louisiana State University and Agricultural and Mechanical
College (“LSU Board”), sought review of the court of appeal’s judgment. We
granted certiorari to interpret specific provisions within the Act including La. Rev.
Stat. 39:1533.22, and to resolve three issues: (1) whether a plaintiff is entitled to
legal interest on an award for future medical care paid directly to the health care
provider from the Future Medical Care Fund (“FMCF”); (2) whether a plaintiff is
entitled to recover attorney’s fees and costs from an award for future medical care
prior to its placement into the FMCF; and (3) whether a plaintiff who was
unemployed at the time of the injury is entitled to recover the loss of future
earnings. Fecke v. Board of Supervisors of Louisiana State University and
Agricultural and Mechanical College, 2015-1806 (La. 2/19/16), 186 So. 3d. 1177,
and 2015-1807 (La. 2/19/16), 186 So. 3d. 1175.
(3) That the limitations set forth in this Section are needed to curb the trend of governmental liability
abuses, to balance an individual's claim against the needs of the public interests and the common good of
the whole society, and to avoid overburdening Louisiana's economy and its taxpaying citizens with even
more new and/or increased taxes than are already needed for essential programs.
(4) That the purpose of this Section is not to reestablish any immunity based on the status of sovereignty
but rather to clarify the substantive content and parameters of application of such legislatively created
codal articles and laws and also to assist in the implementation of Article II of the constitution.
F. The provisions of this Section shall not apply to claims arising under R.S. 40:1299.39 et seq.
2
La. Rev. Stat. 39:1533.2 provides:
A. There is hereby established in the state treasury the “Future Medical Care Fund”, hereinafter referred
to as the “fund”. The fund shall consist of such monies transferred or appropriated to the fund for the
purposes of funding medical care and related benefits that may be incurred subsequent to judgment
rendered against the state or a state agency as provided by R.S. 13:5106 and as more specifically provided
in R.S. 13:5106(B)(3)(c). All costs or expenses of administration of the fund shall be paid from the fund.
B. The fund shall be administered by the treasurer on behalf of the office of risk management for the
benefit of claimants suing for personal injury who are entitled to medical care and related benefits that
may be incurred subsequent to judgment. Except for costs or expenses of administration, this fund shall
be used only for payment of losses associated with such claims. At the close of each fiscal year, the
treasurer shall transfer to the Future Medical Care Fund from the Self-Insurance Fund an amount equal to
the monies expended from the Future Medical Care Fund during that fiscal year. Monies in the fund shall
be invested by the state treasurer in the same manner as monies in the state general fund. Interest earned
on investment of monies in the fund shall be deposited in and credited to the fund. All unexpended and
unencumbered monies in the fund at the end of the fiscal year shall remain in the fund.
3
For the reasons set forth below, we now hold a plaintiff who is awarded
future medical care pursuant to La. Rev. Stat. 13:5106(B)(3)(c) is not entitled to
legal interest on the award and may not recover attorney’s fees or costs from the
award prior to its placement into the FMCF. We further hold a plaintiff who was
unemployed at the time of the injury may recover the loss of future earnings, as
defined in La. Rev. Stat. 13:5106(D)(2).
FACTS AND PROCEDURAL HISTORY
On December 3, 2008, Brandy, a 23-year-old, senior at LSU, went to an
indoor rock climbing facility located at the LSU Recreation Center (“Rec Center”)
to fulfill a compulsory rock climbing assignment for an Outdoor Living Skills
Activity course. Upon arrival, Brandy executed the “Rock Wall Participation
Agreement” required by LSU. After instruction and a climbing demonstration by
the Rec Center employees, Brandy successfully climbed the wall. However, while
descending, she fell from the wall, landed on her left foot and fractured the talus
bone in her ankle. As a result of the injury, Brandy underwent three surgeries and
will require additional surgery, including either a permanent ankle fusion or ankle
replacement.
The Feckes filed a petition for damages against the LSU Board. Following a
trial, the jury found the LSU Board 75% and Brandy 25% at fault, and awarded
Brandy total damages of $1,925,392.72, and Karen Fecke $50,000.00 for loss of
consortium. In accord with the jury verdict, the trial court rendered a judgment in
favor of Brandy as follows:
Past and Future Physical Pain and Suffering $ 112,500.00
Past and Future Mental Pain and Suffering $ 93,750.00
Loss of Enjoyment of Life $ 56,250.00
Permanent Scarring and Disfigurement $ 123,750.00
Past Medical Expenses $ 45,294.54
4
Future Medical Expenses $ 750,000.00
Loss of Future Earnings $ 262,500.00
TOTAL: $1,444,044.54,
plus judicial interest in the amount of 6.0% pursuant to La. Rev. Stat.
13:5112(C)3, from the date of judicial demand until paid, and for all costs of the
proceedings. The trial court judgment ordered that, after reduction for attorney’s
fees and costs, Brandy’s award for future medical expenses of $750,000.00, plus
judicial interest, be placed in the Future Medical Care Trust in accord with La.
Rev. Stat. 13:5106(B)(3)(c). The trial court judgment also awarded Karen Fecke
$37,500.00 for loss of consortium, plus legal interest and costs. Last, the trial court
judgment cast the LSU Board for all court costs, including the fees of the five
expert witnesses.
The LSU Board appealed. In a lengthy opinion, the First Circuit Court of
Appeal reversed in part, amended in part, and affirmed as amended the trial court
judgment. Fecke v. The Board of Supervisors of Louisiana State University and
Agricultural and Mechanical College, 2015-0017 (La. App. 1 Cir. 7/7/15), 180
So. 3d 326.
The court of appeal amended the judgment to make future medical care
payable out of the FMCF, instead of a reversionary trust fund. The court found
the LSU Board is a state agency as defined in La. Rev. Stat. 13:5102(A) 4 and,
3
La. Rev. Stat. 13:5112 (C), provides:
C. Legal interest on any claim for personal injury or wrongful death shall accrue at six percent per annum
from the date service is requested following judicial demand until the judgment thereon is signed by the
trial judge in accordance with Code of Civil Procedure Article 1911. Legal interest accruing subsequent to
the signing of the judgment shall be at the rate fixed by R.S. 9:3500.
4
La. Rev. State. 13:5102(A), provides:
A. As used in this Part, “state agency” means any board, commission, department, agency, special district,
authority, or other entity of the state and, as used in R.S. 13:5106, any nonpublic, nonprofit agency,
person, firm, or corporation which has qualified with the United States Internal Revenue Service for an
exemption from federal income tax under Section 501(c)(3), (4), (7), (8), (10), or (19) of the Internal
Revenue Code, and which, through contract with the state, provides services for the treatment, care,
custody, control, or supervision of persons placed or referred to such agency, person, firm, or corporation
5
thus, governed by La. Rev. Stat. 13:5106(B)(3)(c). Fecke, 2015-0017 at 10, 180
So. 3d at 337-38.
Next, the court of appeal determined Brandy is entitled to legal interest on
the award under La. Rev. Stat. 13:5112(C); however, the interest had to be paid
into the FMCF. The court noted that La. Rev. Stat. 13:5106(B)(3)(c) requires the
fund to pay a claimant’s future medicals and related benefits directly to the
provider as they are incurred, and does not provide for payment directly to the
claimant. It also cited La. Rev. Stat. 39:1533.2(B), which requires interest earned
on investment of monies in the FMCF to be deposited in and credited to the
fund. Thus, the court vacated the part of the judgment awarding legal interest on
the future medical care award directly to Brandy. Fecke, 2015-0017 at 11, 180
So. 3d at 338.
The court of appeal further determined Brandy is not entitled to recover
attorney’s fees and costs from the future medical care award prior to its placement
into the trust (i.e., the FMCF), because “medical care and related benefits,” as
defined in La. Rev. Stat. 13:5106(D)(1), does not include attorney’s fees. The
court noted the FMCF statute does not provide for a lump sum to be placed into
the fund in either Brandy’s name or on her behalf, from which attorney’s fees
and costs could be paid. Thus, the court vacated that portion of the trial court
judgment. Fecke, 2015-0017 at 12-13, 180 So. 3d at 338-39.
by any agency or department of the state in connection with programs for treatment or services involving
residential or day care for adults and children, foster care, rehabilitation, shelter, or counseling; however,
the term “state agency” shall include such nonpublic, nonprofit agency, person, firm, or corporation only
as it renders services to a person or persons on behalf of the state pursuant to a contract with the state. The
term “state agency” shall not include a nonpublic, nonprofit agency, person, firm or corporation that
commits a willful or wanton, or grossly negligent, act or omission. A nonpublic, nonprofit agency,
person, firm or corporation otherwise included under the provisions of this Subsection shall not be
deemed a “state agency” for the purpose of prohibiting trial by jury under R.S. 13:5105, and a suit against
such agency, person, firm or corporation may be tried by jury as provided by law. “State agency” does not
include any political subdivision or any agency of a political subdivision.
6
As to the loss of future earnings award, the court of appeal found the trial
judge erroneously instructed the jury on the “loss of future earnings” instead of the
“loss of future earning capacity.” The court explained the distinction; the loss of
future earnings, not the loss of future earning capacity, is excluded from the
$500,000.00 cap under La. Rev. Stat. 13:5106(B)(1). The court noted Subsection
(D)(2) of La. Rev. Stat. 13:5106 defines “loss of future earnings” as “any form
of economic loss which the claimant will sustain after the trial as a result of the
injury . . . which forms the basis of the claim.” Citing Folse v. Fakouri, 371
So. 2d 1120 (La. 1979), the court distinguished “pecuniary loss” from “loss of
earning capacity.” The court also noted the Fourth Circuit Court of Appeal, in
Cooper v. Public Belt R.R., 03-2116, p. 12 (La. App. 4 Cir. 10/6/04), 886 So. 2d
531, 5395, held the term “pecuniary loss,” as used in Folse, is synonymous with
“economic loss,” as defined in La. R.S. 13:5106(D)(2). Fecke, 2015-0017 at 29,
180 So. 3d at 349. Given that Brandy was unemployed at the time of t h e
accident, the court of appeal found the trial court erred by awarding her loss of
future earnings, and the error was prejudicial because Brandy received more than
she was entitled to under the statutory cap. The court of appeal amended the trial
court judgment accordingly. Id., 2015-0017 at 29-30, 180 So. 3d at 349-50.
Finally, the court of appeal determined that its modification of Brandy’s
damage award extinguished the loss of consortium award to Karen Fecke and, thus,
vacated that part of the trial court judgment, citing Jenkins v. State ex rel. Dept.
of Transp. & Develop., 06-1804 (La. App. 1 Cir. 8/19/08), 993 So. 2d 749,
writ denied, 08-2471 (La. 12/19/08), 996 So. 2d 1133 (“An award of general
damages in the maximum amount of $500,000.00 as allowed by statute in
actions against state agencies and/or political subdivisions of the state serves to
5
Writ denied, 04-2748 (La. 1/28/05), 893 So. 2d 75.
7
legally extinguish any derivative awards for loss of consortium, services, and
society.”). Fecke, 2015-0017 at 30, 180 So. 3d at 350.
The plaintiffs and the LSU Board applied for writs to this court. 6
LAW AND DISCUSSION
“Legislation is the solemn expression of the legislative will; thus, the
interpretation of legislation is primarily the search for the legislative intent.”
Pierce Foundations, Inc. v. JaRoy Construction, Inc., 2015-0785, p. 6 (La. 5/3/16),
190 So. 3d 298, 303 (citations omitted). When a law is clear and unambiguous and
its application does not lead to absurd consequences, the law shall be applied as
written and no further interpretation may be made in search of the legislative
intent. La. Civ. Code art. 9; La. Rev. Stat. 1:4; Succession of Boyter, 99-0761, p. 9
(La. 1/7/00), 756 So. 2d 1122, 1128-29. However, when a statute is susceptible
of more than one interpretation, the court must apply the one that achieves the
legislature’s intent and best comports with the principles of reason and justice.
Pierce Foundations, 2015-0785 at 7, 190 So. 3d at 303; Freechou v. Thomas W.
Hooley, Inc., 383 So. 2d 337 (La. 1980). “The starting point for interpretation of
any statute is the language itself.” Pierce Foundations, 2015-0785 at 7, 190 So. 3d
at 303 (citations omitted). Also, “ʻall laws pertaining to the same subject matter
must be interpreted in pari materia, or in reference to each other.’” Id., quoting
State v. Williams, 10-1514 (La. 3/15/11), 60 So. 3d 1189, 1191; La. Civ. Code art.
13.
6
The LSU Board argued in the court of appeal, and in its writ application to this court, that the
trial court had erred by excluding from evidence the Rock Climbing Wall Participation
Agreement executed by Brandy. The court of appeal found the trial court had erred by excluding
a redacted version of the agreement but that the exclusion was not prejudicial. Fecke, 2015-
0017 at 24, 180 So. 3d at 346. In granting certiorari, we declined to consider this assignment of
error. Fecke v. Board of Supervisors of Louisiana State University and Agricultural and
Mechanical College, 2015-1807 (La. 2/19/16), 186 So. 3d. 1175 (Weimer, J., would grant as to
all issues).
8
A helpful guide in ascertaining the intent of the legislature is the legislative
history of the statute and related legislation. Theriot v. Midland Risk Ins. Co., 95-
2895, p. 4 (La. 5/20/97), 694 So. 2d 184, 186. The Legislature is presumed to have
enacted a statute in light of the preceding statutes involving the same subject
matter and court decisions construing those statutes, and where the new statute is
worded differently from the preceding statute, the Legislature is presumed to have
intended to change the law. Fontenot v. Redell Vidrine Water Dist., 2002-0439,
2002-0442, 2002-0478, pp.13-14 (La. 1/14/03), 836 So. 2d 14, 24 (citing Folse v.
Folse, 98–1976 (La. 6/29/99), 738 So. 2d 1040 and New Orleans Rosenbush Claims
Service, Inc. v. City of New Orleans, 94–2223 (La. 4/10/95), 653 So. 2d 538).
The Louisiana Governmental Claims Act was adopted in 1975 pursuant to
an amendment to the Louisiana Constitution giving constitutional status to the
proscription against sovereign immunity from substantive tort liability. 7 The Act
establishes procedural rules that apply to any suit in contract or for injury to person
or property against the state, a state agency, or a political subdivision of the state.
See La. Rev. Stat. 13:5101(B). When enacted, La. Rev. Stat. 13:5106 provided the
lone limitation that “[n]o suit against the state, state agency or political subdivision
shall be instituted in any court other than a Louisiana state court.”8 In 1985, the
Legislature amended La. Rev. Stat. 13:5106 to expand the limitations on suits
against the state and political subdivisions. 9 The 1985 revision placed a limit of
$500,000.00 on general damages assessed against the state in personal injury and
wrongful death actions; provided for the recovery of medical care and related
benefits, loss of earnings and/or support, loss of future earnings or support; defined
the terms “medical care and related benefits,” “loss of earnings,” “loss of support,”
7
See 1975 La. Acts 434, §1 and Louisiana Const.1974, article XII, §10.
8
See 1975 La. Acts 434, §1.
9
See 1985 La. Acts 452.
9
“loss of future earnings” and “loss of future support”; and enunciated the
legislative findings and purposes of the statute. See La. Rev. Stat. 13:5106(B), (C),
(D) and (E).
In 1993, this Court declared La. Rev. Stat. 13:5106(B)(1) unconstitutional,
holding the $500,000.00 cap on general damages in a personal injury suit against
the State contravened the proscription against sovereign immunity from tort
liability provided for in Louisiana Const. 1974 article XII, §10(A). Chamberlain v.
State Through Dept. of Transp. and Development, 624 So. 2d 874, 881 (La. 1993).
In response, the Legislature proposed an amendment to Louisiana Const. 1974
article XII, § 10(C), to allow the legislature to “limit or provide for the extent of
liability of the state, a state agency, or a political subdivision in all cases, including
the circumstances giving rise to liability and the kinds and amounts of recoverable
damages.” 10 The amendment was approved by the voters on October 21, 1995,
and went into effect November 23, 1995, allowing a cap on general damages
against the State to be reinstated. In anticipation, the Legislature amended La.
Rev. Stat. 13:5106 “in accordance with and based upon the legislative authority
provided for in the proposed constitutional amendment to Article XII, Section 10
of the Constitution of Louisiana.” See Digest, 1995 House Bill No. 1936. The
1995 amendments to La. Rev. Stat. 13:5106(B) increased the maximum liability of
the State for general damages in wrongful death cases at $750,000.00.11
In an effort at tort reform, the Legislature in 1996 amended La. Rev. Stat.
13:5106(B) to limit general damages in suits against the state, a state agency, or
political subdivision for personal injury or wrongful death to $500,000.00.12 It also
added paragraphs (D)(3) and (4), defining “reversionary trust” and “derivative
10
See 1995 La. Acts 1328.
11
See 1995 La. Acts 828, §2.
12
See 1996 La. Acts 1st Ex. Sess., 63, §1
10
claims”, respectively. 13 In 2000, the Legislature amended and reenacted La. Rev.
Stat. 13:5106, as it related to suits against the state and state agencies, to establish
the FMCF; to provide for the payment of future medical expenses and related
benefits; and to provide for the funding and administration of the FMCF. 14, 15
In 2004, this Court held the $500,000.00 cap on damages for a wrongful
death action under La. Rev. Stat. 13:5106(B)(2) applied to each individual
plaintiff, instead of each death victim. Lockett v. State, Department of
Transportation, 2003-1767 (La. 2/25/04), 869 So. 2d 87. The Legislature
responded, amending La. R.S. 13:5106(B)(1) and (2) to limit the total liability of
the state and political subdivisions for personal injury or wrongful death of any one
person, including all claims and derivative claims, to $500,000.00 regardless of the
number of suits filed or claims made for the personal injury or wrongful death of
that person. 16 More recently, the Legislature amended La. Rev. Stat. 13:5106,
adding subsection F, to preclude the application of La. Rev. 13:5106 to claims
arising under La. Rev. Stats. 40:1299.39 17 , the Malpractice Liability for State
Services Act. 18
With the above historical framework in mind, we turn to the issues that
prompted our grant of certiorari. “Because the matter involves the interpretation of
statutory provisions and only questions of law are presented, our review is de
novo.” Pierce Foundations, 2015-0785 at 7, 190 So. 3d at 303 (citation omitted).
Judicial Interest on Award for Future Medical Expenses
At the outset, we agree with the court of appeal that the LSU Board is a state
13
See id.
14
See 2000 La. Acts 1st Ex. Sess., 20, §§ 1, 2, 4 and 5.
15
2000, 1st. Ex. Sess., 20, § 3 repealed La. R.S. 39:1533.1, relating to the Master Reversionary Trust
Fund.
16
See 2005 La. Acts 1, §1.
17
La. Rev. Stats. 40:1299.39 to 1299.39.3 were redesignated as La. Rev. Stats. 40:1237.1 to 40:1237.4 by
House Concurrent Resolution No. 84 of the 2015 Regular Session.
18
See 2010 La. Acts 301, §1.
11
agency, as defined in La. Rev. Stat. 13:5102(A), and, therefore, the Feckes’ suit is
governed by La. Rev. Stat. 13:5106(B)(3)(c) and La. Rev. Stat. 39:1533.2. See
Fecke, 2015-0017 at 9-10, 180 So. 3d at 337. Louisiana Rev. Stat. 13:5102(A) is
clear and unambiguous, and is to be applied as written. See La. Civ. Code art. 9.
The issue of whether a plaintiff is entitled to legal interest on an award of
future medical expenses paid directly to the health care provider from the FMCF
is a res nova issue in the jurisprudence. The LSU Board argues the court of
appeal erred in ordering judicial interest on the future medical care award to be
deposited in the FMCF, and maintains the State is not liable for judicial interest
on the award. In support, the LSU Board relies on La. Rev. Stats. 39:1533.2 and
13:5106(B)(3)(c), which allow only medical care and related benefits to be paid on
a claim for future medical care against the state or state agency. The LSU Board
maintains a claim for future medical care against the FMCF is no different than a
claim for future medical care against the Patient’s Compensation Fund (“PCF”)
under the Louisiana Medical Malpractice Act and should be treated the same,
citing Hall v. Brookshire Bros., Ltd., 02-2404 (La. 6/27/03), 848 So. 2d 559.
The Feckes, on the other hand, agree the court of appeal erred in directing
legal interest to be paid to the FMCF, but maintain the trial court correctly ordered
interest on future medical care to be paid directly to Brandy. They contend La.
Rev. Stat. 13:5112, which provides for the payment of judicial interest on a
personal injury award against the state, controls rather than La. Rev. Stat.
39:1533.2. In addition, the Feckes maintain the jurisprudence interpreting Medical
Malpractice Act is not applicable to the FMCF provision because the statutes are
dissimilar, noting the FMCF is funded with public monies and the PCF with
private monies.
12
In amending the part of the judgment awarding judicial interest on future
medical care, the court of appeal agreed Brandy was entitled to judicial interest
on the award, but concluded it had to be paid to the FMCF pursuant to La. Rev.
Stat. 39:1533.2. Read in isolation, La. Rev. Stat. 13:5112 tends to support the
Feckes’ contention that Brandy is entitled to legal interest on the entire personal
injury award, including the future medical care claim. See Edwards v. Daugherty,
03-2103 (La. 4/27/01), 791 So. 2d 107 (finding prejudgment judicial interest on
future medical damage award is recoverable where La. Rev. Stat. 13:4203 does not
expressly bar recovery of prejudgment interest). However, by amending the award,
the court of appeal implied the general provisions of La. Rev. Stat. 13:5112 were
modified, with respect to future medical expenses, with the enactment of La. Rev.
Stat. 39:1533.2. See Fecke, 2015-0017 at 11, 180 So. 3d at 338.
Neither La. Rev. Stat. 13:5106(B)(3)(c) nor La. Rev. Stat. 39:1533.2
specifically addresses judicial interest. Similarly, the definition of “medical care
and related benefits” in La. R.S. 13:5106(D)(1) does not include judicial interest.
Therefore, we must ascertain the legislature’s intent in enacting the relevant
provisions. Because La. Rev. Stat. 13:5106 limits damages of the State in
derogation of the general rights of tort victims, any ambiguities in the statute
should be strictly construed. See David v. Our Lady of the Lake Hospital Inc.,
2002-2675, p. 11 (La. 7/2/03), 849 So. 2d 38, 47 (interpreting La. Rev. Stat.
9:5628); Conerly v. State, 97-0871, p. 3 (La. 7/8/98), 714 So. 2d 709, 710
(interpreting La. Rev. Stat. 40:1299.39).
In 1985, when the Legislature amended La. Rev. Stat. 13:5106 to expand
the limitations on suits against the state and political subdivisions, Act 452 was
one of six separate statutory measures enacted that year to relieve the State of the
13
ordinary burdens of tort liability. 19 The intent of the Legislature is manifest in
the addition of Subsection E to the statute. The Legislature determined public
entities could no longer pay judgments on a current basis and those judgments
jeopardized the public fisc. See La. Rev. State. 13:5106(E)(1) and (2). It
amended the statute “to curb the trend of governmental liability abuses, to
balance an individual's claim against the needs of the public interests and the
common good of the whole society, and to avoid overburdening Louisiana's
economy and its taxpaying citizens with even more new and/or increased taxes
than are already needed for essential programs.” La. Rev. Stat. 13:5106(E)(3).
Nonetheless, the Legislature made clear the revision did not reestablish sovereign
immunity. See La. Rev. Stat. 13:5106(E)(3). While general damages against the
state in personal injury and wrongful death actions were capped, medical care
and related benefits, loss of earnings and/or support, and loss of future earnings
and/or support were provided for, and excluded from, the statutory cap. See La.
Rev. Stats. 13:5106(B) and (C).
The 1996 amendment to La. Rev. Stat. 13:5106 added subsection (D)(3)20
to define and provide for a “reversionary trust” as a means for the state, a state
agency or a political subdivision to pay the medical care and related benefits, as
they accrue, of a particular claimant. However, in 2000, the Legislature amended
the statute to redefine “reversionary trust” making it applicable to political
19
See Lockett, 2003-1767 at 5, 869 So. 2d at 91 (citation omitted).
20
Subsection (D)(3), as originally written, provided:
(3) “Reversionary trust” means a trust established by the state, state agency, or political
subdivision for the exclusive benefit of the claimant to pay the medical care and related
benefits as they accrue, including without limitation reasonable and necessary amounts for
all diagnosis, cure, mitigation, or treatment of any disease or condition from which the
injured person suffers as a result of the injuries, and the sequelae thereof, sustained by the
claimant on the date the injury was sustained. The trustee shall have the same fiduciary
duties as imposed upon a trustee by the Louisiana Trust Code. Nothing herein shall limit the
rights of claimants to contract with respect to attorney fees and costs.
14
subdivisions only. See La. Rev. Stat. 13:5106(D)(3). Concurrently, the
Legislature established the FMCF (La. Rev. Stat. 39:1533.2) whose sole purpose
was to pay all medical care and related benefits incurred subsequent to a
judgment against the state or a state agency in a personal injury suit. See La.
Rev. Stat. 13:5106(B)(3)(c). To fund the FMCF, the state treasurer was required
to transfer ten million dollars ($10,000,000.00) from the Self-Insurance Fund21
for deposit in and credit to the FMCF. See 2000 La. Acts 1st Ex. Sess., 20, §4;
see also La. Rev. Stat. 39:1533.2. Thereafter, at the close of each fiscal year, the
treasurer is required to transfer from the Self-Insurance Fund to the FMCF an
amount equal to the monies expended from the FMCF during that fiscal year.
La. Rev. Stat. 39:1533.2(B).
The FMCF originated from House Bill No. 54, prior to its enrollment as
2000 La. Acts 1st Ex. Sess., 20, §§ 2, 4 and 5. 22 At the request of Representative
McMains, who was an author of the bill, Seth Keener, then Director of the Office
of Risk Management (“ORM”), presented and testified in favor of the bill before
the House Committee on Appropriations.23 According to Keener, the ORM was
the impetus behind the proposed bill; it saw the creation of the FMCF as a means
to protect the public fisc, by not encumbering large amounts of public funds at
any one time for a particular claimant, and to reduce the substantial
administrative costs associated with a plethora of reversionary trusts.24
The FMCF, unlike a reversionary trust, contains no funds earmarked or
21
The Self-Insurance Fund consists of all premiums paid by state agencies under the state’s risk
management program. See La. Rev. Stat. 39:1533(A).
22
See Digest, 2000 1st Ex. Sess. House Bill 54.
23
Minutes, House Committee on Appropriations, March 21, 2000, 2000 First Extraordinary
Session.
24
The Future Medical Care Fund for the Payment of Future Medical Care and Related Benefits
Resulting from Lawsuits against the State: Hearing on H.B. 54 Before the H. Comm. on
Appropriations, March 21, 2000, 2000 First Extraordinary Session (La. 2000) (statement of Seth
Keener, Director, Office of Risk Management); see also (http://house.louisiana.gov/Hse Video
Requested.aspx)
15
reserved for a particular claimant. See La. Rev. Stat. 13:5106(D)(3). Although
state funds are transferred into the FMCF, unless the legislature specifically
appropriates the funds to pay a particular judgment, e.g., Brandy’s future medical
care and related benefits, they remain public funds exempt from seizure or court
order compelling their payment for any other purpose. See La. Rev. Stat.
13:5109(B)(2); see also Cf. Newman Marchive Partnership, Inc. v. City of
Shreveport, 07-1890, pp. 7-8 (La. 4/8/08), 979 So. 2d 1262, 1268 (Money
appropriated by the City of Shreveport to the Retained Risk Fund, an account
established to pay claims and judgments against the political subdivision, was not
a specific appropriation by the city’s legislative branch to pay the claimant’s
judgment, and therefore not subject to a writ of mandamus compelling the city to
pay claimant’s judgment against it.)
After the FCMF was established, the Legislature amended La. Rev. Stat.
13:5106 in 2005 to limit the total liability of the state and political subdivisions
for personal injury or wrongful death of any one person, including all claims and
derivative claims, to $500,000.00 regardless of the number of suits filed or
claims made for the injury or death of that individual. See La. Rev. Stat.
13:5106(B)(1) and (2). Significantly, from 1985 to the most recent revision in
2010, the Legislature retained the language set forth in Subsection E as its stated
purpose and intent.
As previously mentioned, there is no jurisprudence interpreting the FMCF
statute. In Hall v Brookshire Brothers, supra, this Court examined the Medical
Malpractice Act, the statute establishing the PCF, to consider whether the PCF
owed legal interest on the entire amount awarded by the jury, prior to the
imposition of the medical malpractice cap, or, at a minimum, on the award for
16
future medical expenses. Hall, 02-2404 at 24, 848 So. 2d at 574. We concluded
that the PCF does not require payment of judicial interest on an award of future
medical damages and interest is not owed until the expenses are actually incurred,
stating:
In the context of the Medical Malpractice Act, then,
future medical expenses are to be paid when and as
incurred. LSA-R.S. 40:1299.43. With respect to the
accrual of legal interest on these expenses, we agree
with and adopt the holding of the court of appeal in
[ Lamark v. NME Hospitals, Inc., 522 So. 2d 634, 640
(La. App. 4th Cir 1988)], stating:
Section 1299.43, specifically dealing with
future medical care and related benefits,
makes no mention of interest. Nevertheless,
we do not believe that the legislature
intended for interest to be paid from the date
of demand on judgment amounts which the
statute specifies are to be paid as and when
incurred.
Interest on future medical benefits is thus payable from
the date of the filing of the complaint or the date the
expenses were incurred, whichever is later. Id. In this
case, since the $35,251.43 award for past medical
expenses, which was reduced to $29,963.72, represents
"future" medical expenses that have already been
incurred, interest is owed on this amount. However, the
$3,862,835.00 award for future medical care represents
expenses that have not yet been incurred. As such, legal
interest is not owed on this amount unless and until the
expenses are actually incurred.
Hall, 02-2404 at 28, 848 So.2d a t 576 ( footnotes omitted) .
We agree with the LSU Board that the decision in Hall is persuasive and,
therefore, adopt its reasoning in this matter. Like La. Rev. Stat. 40:1299.43 of the
Medical Malpractice Act, La. Rev. Stat. 13:5106 (D)(1) makes no mention of
interest. For the purpose of the FMCF, medical care and related benefits is defined
as “all reasonable medical, surgical, hospitalization, physical rehabilitation, and
17
custodial services, and includes drugs, prosthetic devices, and other similar
materials reasonably necessary in the provision of such services.” La. Rev. Stat.
13:5106(D)(1). Also, La. Rev. Stat. 13:5106(B)(3)(c) provides the “[m]edical care
and related benefits shall be paid directly to the provider as they are incurred.”
Under these circumstances, we find that the legislature did not intend for
interest to be paid from the date of demand on judgment amounts which the
statute specifies are to be paid to the health care provider as they are incurred.
Moreover, it would make little sense for the legislature to provide that an
award for future medical care must be paid into the FMCF, yet allow judicial
interest on that award to be paid directly to the claimant. The FMCF statute
provides that “[i]nterest earned on investment of monies in the fund shall be
deposited in and credited to the fund.” La. Rev. Stat. 39:1533.2(B). Admittedly,
this language refers to investment income rather than judicial interest;
nonetheless it suggests the legislature intended to keep all money derived from
the future medical care award in the fund. We believe our interpretation is
consistent with the overall purpose of the Act as set forth in La. Rev. Stat.
13:5106(E).
Although the Feckes argue this case is distinguishable from Hall because the
PCF is funded from private monies, we believe the purpose of the legislation
underlying each fund is quite similar. The Medical Malpractice Act, adopted in
response to the increasingly prohibitive costs of medical malpractice insurance,
sought to ensure the availability of safe and affordable health care services to the
public and to simultaneously limit the significant liability exposure of health care
providers. Hall, 02-2404 at 9-10, 848 So. 2d at 565 (citation omitted). On the
other hand, the Act, enacted in response to the increased number of judgments
against the state as a result of the proscription of sovereign immunity, sought to
18
curb governmental liability abuses, to balance an individual's claim against the
needs of the public interests and the common good of the whole society, and to
avoid overburdening Louisiana's economy and its citizens with new and/or
increased taxes. In both cases, the legislature sought to provide for the needs of the
tort victim claimant while simultaneously protecting the public’s interest, either
directly (the FMCF preserves public funds) or indirectly (the PCF limits the
liability of health care providers generally, helping make health care costs more
affordable for all).
In addition, we find no merit to the Feckes’ argument that, unlike Hall, the
instant case arises under the general tort law and, therefore, La. Rev. Stat.
13:5112(C) applies. Louisiana Const. 1974 art. XII, §10(C) provides, “the
legislature by law may limit or provide for the extent of liability of the state, a state
agency, or a political subdivision in all cases, including the circumstances giving
rise to liability and the kinds and amounts of recoverable damages.” (Emphasis
added). The Legislature exercised its constitutional authority in amending La.
Rev. 13:5106 (B)(3) to establish the FMCF, and if it had intended to allow a
claimant to recover interest on a future medical care award placed into the FMCF,
then it would have provided such, but it did not.
Attorney’s Fees and Costs
We turn now to the issue of attorney’s fees and costs. The Feckes argue
the trial court correctly held Brandy is entitled to attorney’s fees and costs from
the FMCF prior to its placement into the fund, and the court of appeal erred in
holding otherwise.
19
In Dipaola v. Municipal Police Employees’ Retirement System, 14-0037 (La.
App. 1 Cir. 9/25/14), 155 So. 3d 49 25 , the court of appeal explained “[u]nder
Louisiana law, attorney fees are not allowed except where authorized by statute or by
contract.” Id. at 4, 155 So. 3d at 52 (citations omitted). In this case, no contract or
statute authorizes attorney’s fees. Louisiana Rev. Stat. 13:5106(B)(3)(c) provides
a claimant is entitled to “medical care and related benefits that may be incurred
subsequent to judgment.” As noted in our discussion of judicial interest, neither
this statute nor the statutory definition of “medical care and related benefits”
includes attorney’s fees or costs. Moreover, in Starr v. Dept. of Transp. &
Develop., 46,226 (La. App. 2 Cir. 6/17/11), 70 So. 3d 128, the Second Circuit Court
of appeal concluded that attorney’s fees are not “medical care and related expenses”
that qualify for payment from the FMCF. Id. at 25, 70 So. 3d at 144.
In addition, a search of the statutes and jurisprudence reveals no statute that
authorizes payment of attorney’s fees for future medicals prior to payment of the
judgment into the FMCF. Louisiana Rev. Stat. 13:5112(A) 26 specifically provides
for payment of costs in a personal injury suit against the state, but does not
specifically provide for attorney’s fees. Although La. Rev. Stat. 13:5106(D)(3)
refers to attorney’s fees in the provision defining “reversionary trust,” that
“[n]othing herein shall limit the rights of claimants to contract with respect to
attorney’s fees and costs,” the Feckes’ reliance on this provision is misplaced
because it applies only to political subdivisions.
25
Writ denied, 2014-2575 (La. 2/27/15), 159 So. 3d 1071.
26
La. Rev. Stat. 13:5112 (A), provides:
A. In any suit against the state or any department, board, commission, agency, or political subdivision
thereof, the trial or appellate court, after taking into account any equitable considerations as it would
under Article 1920 or Article 2164 of the Code of Civil Procedure, as applicable, may grant in favor of
the successful party and against the state, department, board, commission, agency, or political subdivision
against which judgment is rendered, an award of such successful party's court costs under R.S. 13:4533
and other applicable law as the court deems proper but, if awarded, shall express such costs in a dollar
amount in a judgment of the trial court or decree of the appellate court.
20
We find no merit to this assignment of error.
Loss of Future Earning Capacity
The final issue that prompted our grant of certiorari concerns an award for
loss of earning capacity. Specifically, the issue is whether Brandy’s loss of future
earnings is properly an award of loss of future earnings or loss of future earning
capacity. As the court of appeal explained, the difference is significant; La. Rev.
Stat. 13:5106(B)(1) establishes a $500,000.00 cap on all damages for personal
injury, exclusive of loss of future earnings.
The Feckes argue the court of appeal erred in finding the trial court should
have instructed the jury on loss of future earning capacity. They maintain Folse
v. Fakouri, 371 So. 2d 1120 (La. 1979), relied on by the court of appeal, did
not foreclose damages for future losses extrapolated from losses already
experienced prior to trial. Rather, the Feckes maintain, a strict reading of Folse
holds that a loss of earning capacity is not implicated unless a claimant had never
profited monetarily in his or her chosen career. By contrast, LSU contends the
Feckes are attempting to change the classification of the claim from loss of future
earning capacity to loss of future earnings despite the uncontested fact that Brandy
was unemployed when injured.
La. Rev. Stat. 13:5106(D)(2) defines “loss of future earnings” as “any form
of economic loss which the claimant will sustain after the trial as a result of the
injury or death which forms the basis of the claim.” In Folse, this court
appeared to distinguish between “loss of future earnings” and “loss of future
earning capacity.” In Folse, the plaintiff filed suit against defendant, seeking
injuries arising out of a vehicle accident that occurred in the course of
plaintiff’s employment as a school bus driver. A jury rendered judgment in favor
21
of the plaintiff, but the court of appeal later amended and lowered the amount of
the damage award, including the award for loss of future earnings and future
earning capacity. This Court, in an opinion authored by Chief Justice Summers,
reversed and reinstated the trial court’s loss of future earnings and future earning
capacity award. The Folse court drew a distinction between “pecuniary loss”
and “loss of earning capacity”:
The jury was entitled to determine from these and other
factors in the record the probabilities and estimates
of plaintiff's ability to earn money. What plaintiff
earned before and after the injury does not
constitute the measure. Even if he had been
unemployed at the time of the injury he is entitled to
an award for impairment or diminution of earning
power. And while his earning capacity at the time of
the injury is relevant, it is not necessarily
determinative of his future ability to earn. Coco v.
Winston Industries, Inc., 341 So. 2d 332 (La.1976).
Damages should be estimated on the injured person's
ability to earn money, rather than what he actually
earned before the injury.
While the general rule set forth in the Civil Code is that
damages are the amount of the loss the creditor has
sustained, or of the gain of which he has been deprived,
yet there are cases in which damages may be
assessed without calculating altogether on the
pecuniary loss, or the privation of pecuniary gain to
the party. La. Civil Code art. 1934(3). While this rule
is stated in the Code to be applied where the contract
has for its object the gratification of some intellectual
enjoyment, the principle announced there may be
applied by analogy to the loss of earning capacity
where "damages may be assessed without calculating
altogether on the pecuniary loss, or the privation of
pecuniary gain to the party." It is a rule of reason and
common sense applicable to contracts and torts alike.
***
Earning capacity in itself is not necessarily
determined by actual loss; damages may be assessed
for the deprivation of what the injured plaintiff
could have earned despite the fact that he may
never have seen fit to take advantage of that
capacity. The theory is that the injury done him has
deprived him of a capacity he would have been
22
entitled to enjoy even though he never profited from
it monetarily. [Emphasis added]
Folse, 371 So. 2d at 1123-24.
The court of appeal later revisited Folse in Cooper v. Public Belt Railroad,
03- 2116 (La. App. 4 Cir. 10/6/04), 886 So. 2d 531, and reiterated the distinction
between “loss of future earnings” and “loss of future earning capacity.” More
specifically, the Cooper court found the term “pecuniary loss” as used in Folse is
synonymous with “economic loss” as employed in La. Rev. Stat. 13:5106(D)(2):
In Folse the Supreme Court found error in the appellate
court's reliance "altogether on the pecuniary loss,
without considering the contention that there was also
a loss of earning capacity . . . " Therefore, the Supreme
Court in Folse draws a distinction between a
"pecuniary loss" and "loss of earning capacity." We
find that the term "pecuniary loss" as used in Folse by
the Supreme Court is synonymous with "economic loss"
as employed in La. R.S. 13:5106 D(2). The Folse
opinion goes on to explain the rationale behind the
concept of loss of future earning capacity as opposed
to loss of future earnings:
The theory is that the injury done him has
deprived him of a capacity he would have
been entitled to enjoy even though he
never profited from it monetarily.
[Emphasis added.]
Id., 371 So.2d at 1123. By noting that proof of loss of
future earning capacity does not require proof of future
monetary loss, the Folse opinion reinforces the
conclusion of this Court that loss of future earning
capacity is not an "economic loss" within the
intendment of La. Rev. Stat. 13:5106 D(2).
Cooper, 03-2116 at 11-12, 886 So. 2d at 539.
In the instant case, the court of appeal followed Cooper and concluded that
loss of future earning capacity was not an economic loss. Thus, the court held
Brandy could not receive an award for loss of earnings or loss of future earnings
because she was unemployed at the time of the accident and could not have suffered
23
any economic loss. However, the Fourth Circuit clarified and limited its holding
in Cooper in Iles v. Ogden, 2009-0820 (La. App. 4 Cir. 2/26/10), 37 So. 3d 427.
In Iles, the court considered whether a claim for loss of the value of an
inheritance is logically included in La. R.S. 13:5106(C)(1)(d),“loss of future
support.” Iles, 2009-0820 at 25, 37 So. 3d at 444. Specifically, the court
concluded that if a claim is properly supported by the record, that is, “[i]f the
evidence is not speculative and [is] capable of mathematical calculation,” then
the loss “is a specific damage and not a general damage.” Id.
At the conclusion of trial in this case, the trial court gave the following
jury charge:
Under the loss of future earnings component of damages, the
plaintiff is entitled to recover damages for the deprivation of
what she should have earned but for the injury. Such damages
are calculated on the plaintiff's ability to earn money in her
chosen career compared to what she can now earn because of
her injury. In determining such an award, you may consider
plaintiff's physical condition and mental status before and after
this incident, her work record, her earnings in prior years, the
probability or improbability that she would have earned
similar amounts in the remainder of her work life, and similar
factors. And since, if you make an award, plaintiff would be
receiving today sums of money that otherwise she would only
receive over a number of years in the future, the law requires
that you discount or reduce it to its present value, which is
what the experts in this case have already done.
The LSU Board’s counsel objected to the jury charge. The trial court overruled the
objection, allowing the jury to consider the charge. After citing to the Fourth
Circuit's decision in Cooper, and this Court's decision in Folse, the trial court gave
the following reasons for his ruling:
But all the cases that I found seemed to make a distinction, or
even those that did not where they talked about loss of earning
capacity, talked about something for which the plaintiff might
have been qualified to do but had never sought to pursue. And
by the injury they lost the ability to pursue that capacity in the
future. The cases dealing with loss of future earnings dealt
with cases where the injured plaintiff was already in a certain
24
career or profession or job description and they could not
continue on in that same job. The evidence in this case was
that Ms. Fecke was, despite her injury, able to qualify and go
into her chosen profession of physical therapy assistant, but
because of her injury will not be able to continue in that type
of employment and must therefore seek other employment
which may or may not pay less, as indicated by the experts
who testified. So for that reason, I felt that this was more loss
of future earnings as opposed to loss of earning capacity. So
that's why I gave that charge as opposed to a future earning
capacity charge or a future earning capacity entry on the
verdict form.
Brandy testified at trial that although she was unemployed at the time of her
injury, she was just two weeks from graduating with her Bachelor of Science in
Kinesiology. Thereafter, she returned to school to obtain a certification as a
physical therapist assistant. She began working as a physical therapy assistant, but
the job entailed long hours of standing, walking and weight-bearing activity, all of
which proved difficult with her injured ankle. As a result, by the time of trial,
Brandy had already changed employment to a less demanding physical therapy
assistant position with fewer hours and less pay.
At trial, Stephanie P. Chalfin, M.S., the Feckes’ expert vocational
rehabilitation consultant and life care planner, testified with specificity regarding
Brandy’s education, work history, current earnings and future vocational prospects,
in light of her physical limitations which would affect her future earnings. Also,
Harold Asher, C.P.A., the Feckes’ expert in the projection of economic losses,
reviewed Chalfin’s report regarding future life care and calculated Brandy’s
economic outlook, including loss of future earnings. Asher testified regarding
Brandy’s income tax returns and her then current earnings as physical therapy
assistant. The expert testimony and reports of these two witnesses establish
Brandy’s future loss of earnings is pecuniary in nature, rather than speculative and
uncertain. Thus, we find the jury instruction and verdict form citing “loss of future
25
earnings” were proper and not an abuse of the trial court’s discretion. Thus, the
portion of the court of appeal judgment amending Brandy’s award for loss of
future earnings to loss of future earning capacity subject to the $500,000.00 cap is
vacated and the trial court judgment reinstated.
DECREE
Accordingly, for the above reasons, the judgment of the court of appeal is
reversed insofar as it held Brandy was entitled to legal interest on an award for
future medical care and ordered said interest had to be paid into the FMCF;
affirmed insofar it held Brandy was not entitled to recover attorney’s fees and costs
from an award for future medical care prior to its placement into the FMCF; and
reversed insofar as it vacated Brandy’s award for loss of future earnings, and the
trial court judgment awarding loss of future earnings reinstated.
REVERSED IN PART; AFFIRMED IN PART; AND TRIAL COURT
JUDGMENT REINSTATED IN PART.
26
09/23/16
SUPREME COURT OF LOUISIANA
NO. 2015-C-1806
CONSOLIDATED WITH
NO. 2015-C-1807
BRANDY LYNN FECKE, STEPHEN C. FECKE, AND KAREN FECKE
VERSUS
THE BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY
AND AGRICULTURAL AND MECHANICAL COLLEGE
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT,
PARISH OF EAST BATON ROUGE
WEIMER, J., concurs.
I agree with the majority’s ultimate disposition of the three issues raised in
these consolidated matters; however, I write separately to more fully address the issue
of Brandy’s entitlement to loss of future earnings.
In its opinion, the majority traces the jurisprudence stemming from this court’s
decision in Folse v. Fakouri, 371 So. 2d 1120, 1123-24 (La. 1979), which drew a
distinction between “pecuniary loss,” i.e., “loss of future earnings” and “loss of future
earning capacity,” to conclude that, under the evidence in this case, “Brandy’s future
loss of earnings is pecuniary in nature, rather than speculative and uncertain” and,
therefore, falls under the category of pecuniary loss or “loss of future earnings”
outlined in Folse. See Fecke v. The Board of Supervisors of Louisiana State
University and Agricultural and Mechanical College, 15-1806, 15-1807, slip op.
at 25 (La. 9/23/16). While the discussion of the jurisprudence that has evolved since
Folse is edifying, I believe that it is ultimately unnecessary, as the issue of Brandy’s
entitlement to loss of future earnings is appropriately resolved by resort to statutory
law and an examination of the definition of “loss of future earnings” found in La. R.S.
13:5106(D)(2). Quite simply, this is because, under Louisiana’s civilian tradition,
every legal analysis must begin by examining the primary sources of law, consisting
of the Constitution, codes, and statutes. Jurisprudence, even when it arises to the
level of jurisprudence constante, is a secondary source of law. Delta Chemical
Corp. v. Lynch, 07-0431, p. 13 (La.App. 4 Cir. 2/27/08), 979 So. 2d 579, 588 (citing
Alvin B. Rubin, Hazards of a Civilian Venturer in Federal Court: Travel and Travail
on the Erie Railroad, 48 La. L. Rev. 1369, 1372 (1988)).
Relevant to the case before us, the primary source of law which guides our
decision is statutory. The relevant statute, La. R.S. 13:5106(D)(2), defines “loss of
future earnings” as “any form of economic loss which the claimant will sustain after
the trial as a result of the injury or death which forms the basis of the claim.”
(Emphasis added.) The statutory phrase “any form of economic loss” indisputably
includes wages from pre-injury employment (“loss of future earnings”), but it is both
logically and semantically broader than pre-injury wages alone. To hold otherwise
would render the word “any” in the statute meaningless, a result our rules of statutory
interpretation proscribes. Moss v. State, 05-1963, p. 15 (La. 4/4/06), 925 So. 2d
1185, 1196 (“[C]ourts are bound, if possible, to give effect to all parts of a statute and
to construe no sentence, clause or word as meaningless and surplusage if a
construction giving force to, and preserving, all words can legitimately be found.”).
Clearly, as written and according to its plain language, the statutory definition
of “loss of future earnings” is broad enough to include within its ambit both forms of
economic loss distinguished in the jurisprudence – “loss of future earnings” and “loss
of future earning capacity” – so long as the loss is documented and not speculative
(hence the reference in the statutory definition to economic loss the claimant “will”
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sustain as a result of the injury). To the extent that the decision in Cooper v. Public
Belt Railroad, 03-2116 (La.App. 4 Cir. 10/6/04), 886 So. 2d 531, suggests otherwise,
I believe that decision should be overruled.
As the late Justice Albert Tate, Jr. so aptly stated:
The civilian does not regard the judicial interpretations of a statute as
becoming part of the statute, so that the statute as interpreted is the law.
He regards the statute alone as being the law, and prior decisions do not
“insulate” him ... from going directly to the statute for its meaning. In
ideal theory, the civilian judge decides cases primarily “not by reference
to other decisions, but by reference to legislative texts and within the
limits of such judicial discretion as the legislative texts grant.”
Albert Tate, Jr., Techniques of Judicial Interpretation in Louisiana, 22 La.L.Rev.
727, 744 (1962) (footnotes omitted). Following our civilian roots and drawing upon
the primary source of law governing resolution of the issue presented in this case –
the statute – I therefore agree with the majority’s conclusion that the district court’s
award for loss of future earnings should be reinstated, but I do so because that is the
result the language of the statute commands.
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