DocketNumber： No. 12-1325
Citation Numbers： 157 So. 3d 682
Judges： Conery, Cooks, Genovese, Gremillion, Pickett
Filed Date： 5/15/2013
Status： Precedential
Modified Date： 8/21/2021
Ijn this personal injury case stemming from an automobile/school bus accident, Plaintiff, Shenan Smith Purvis, appeals the trial court’s allocation of fault, awards of general damages and future medical expenses, and the assessment of costs. Defendants, the Grant Parish School Board and Jana Lashley (collectively Ms. Lash-ley), have answered the appeal, seeking a review of the trial court judgment denying their motion to supplement the record. For the following reasons, we reverse in part, affirm in part, as amended, and render. We also affirm the trial court’s judgment denying Defendants’ motion to supplement the record.
FACTS AND PROCEDURAL HISTORY
On June 14, 2005, a collision occurred in Grant Parish when a northbound school bus driven by Ms. Lashley
The issues of liability and damages were bifurcated in this matter.
| {.The issue of damages was tried, by agreement of the parties, on the submission of depositions and medical records. After this evidence was submitted to the trial court, on October 23, 2009, Ms. Lash-ley filed a motion to supplement the record praying that she be allowed to supplement the record with evidence of a post-trial criminal conviction of Ms. Purvis. On December 21, 2009, the trial court signed a judgment denying Ms. Lashley’s motion.
In its subsequent Reasons for Judgment of January 26, 2010, the trial court determined the remaining issue of damages and awarded Ms. Purvis property damages of $6,834.50, rental car expenses of $2,133.15, past medical expenses of $27,822.83, future medical expenses of $0.00, lost wages of $0.00, and general damages of $7,500.00. Costs were assessed against the parties in accordance with their respective percentages of fault. A concomitant judgment was signed on May 12, 2010.
On September 23, 2010, Ms. Purvis filed a Motion for New Trial “on the issues of liability, assessment of faulty and assessment of costs[.]” Following a hearing, the trial court signed a judgment on October 11, 2011, denying Ms. Purvis’ Motion for New Trial.
Ms. Purvis appealed the judgments of May 12, 2010 and October 11, 2011.
ASSIGNMENTS OF ERROR On appeal, Ms. Purvis presents the following assignments of error for our review:
_b?.
The district judge improperly saddled [Ms. Purvis] with 40% fault for a collision that occurred in her proper lane of travel.
II.
The district judge’s award of only $7[,]500.00 for past and future general damages was an abuse of discretion.
III.
The failure to award future medical expenses was, legally and factually, erroneous.
IV.
Under these circumstances, the assessment to [Ms. Purvis] of 40% of the costs was improper.
Considering these assignments of error, we will address the issues of fault allocation, the general damage award, future medical expenses, and the court costs assessment. Additionally, relative to Ms. Lashley’s answer to appeal, we will consider whether the trial court erred in denying her motion to supplement the record.
LAW AND DISCUSSION
Liability
Ms. Purvis asserts that the trial court erred in allocating 40% of the fault for the subject accident to her “for a collision that occurred in her proper lane of travel.” We agree.
Factual findings of a trial court are reviewed under the manifest error-clearly wrong standard of review. Fontenot v. Patterson Ins., 09-669 (La.10/20/09), 28 So.3d 259. Under this standard, “an appellate court may not disturb a [trial court’s] finding of fact unless the record establishes that a factual, reasonable basis does not exist and the finding is clearly wrong or manifestly erroneous.” Id. at 267.
Thibodeaux v. Comeaux, 11-127, p. 5 (La.App. 3 Cir. 6/15/11), 69 So.3d 674, 679.
|4On the issue of liability, the trial court set forth the following in its reasons for judgment:
The vehicles did not strike each other head on. Likely, each was attempting to drive in their respective lanes. However, due to the nature of the road (unpaved, no middle lane [sic]) at this particular spot (a bend or curve in the road) and given the large size of the school bus compared to the smaller size of [Ms. Purvis’) car, it is most likely that while driving along the road, and especially when maneuvering the curve, the left side of the school bus was encroaching over the center of the road and was partly in [Ms. Purvis’] lane.
The trial court concluded that Ms. Pur-vis’ “vehicle, while not improperly in the middle of the road so as to collide head on with [Ms. Lashley], may have been hugging the center lane [sic] just enough so that the left corner of the bus snipped into the left corner of [Ms. Purvis’] vehicle.” Therefore, “[i]t [was] the finding of [the] court that both parties were at fault in this accident.”
The testimony of the drivers regarding the moments just before the accident hap
Ms. Lashley testified that Ms. Purvis “was in the middle of the road” before the accident occurred. Ms. Lashley placed the point of impact between the two vehicles in her lane of travel. Although she denied telling Ms. Purvis, or anyone at the scene, that she was inattentive just prior to impact, Ms. Lashley testified that she did not apply her brakes before the impact occurred. Rather, in her words, she only braked “on impact.” When questioned about her failure to brake prior to impact, Ms. Lashley’s response was that Ms. Pur-vis “came around the curve so fast in the center til it was just, I mean, by the time — she had already hit me and I applied the brakes.”
IsContrary to Ms. Lashley’s testimony, Ms. Purvis testified that as she was approaching the curve, she saw Ms. Lashley “driving the school bus coming into the curve[,] and she was looking down[,] and she just kept coming over into [her] lane.” Ms. Purvis denied veering into the opposing lane of travel and explained that she “tried to get out of the way” but “couldn’t move fast enough[.]” According to her testimony, she was able to get the front passenger side of her vehicle into the grassy area near the ditch. Ms. Purvis also testified that after the accident, she was approached by Ms. Lashley, who apologized to her and said that she had been reaching for some papers before the collision.
Ms. Purvis’ testimony was echoed by her passenger, Ms. Thomisee. According to this witness, as they were going around the curve, she saw the school bus approaching, and she saw Ms. Lashley “looking down on the floor.” She explained that Ms. Lashley was “bent down” and “[s]he never looked up until after she made impact with [them].” Ms. Thomisee testified that Ms. Purvis did not veer into Ms. Lashley’s lane of travel. She also corroborated Ms. Purvis’ testimony that after the accident, Ms. Lashley approached their vehicle, apologized, and admitted that she had been looking down and not paying attention. Ms. Thomisee testified that Ms. Purvis honked the horn and attempted to get off the roadway. When the impact occurred, part of Ms. Purvis’ vehicle was off of the roadway according to this witness.
Michael Hataway, the officer who investigated the accident, concluded that based upon the debris and the skid marks made by Ms. Purvis’ vehicle, there was no doubt in his mind that the point of impact was in Ms. Purvis’ lane of travel. Officer Hata-way admitted that the narrative portion of the accident report and the diagram that he prepared contained some inconsistencies. He explained that the diagram erroneously showed that the area of damage to the bus was on the right Rfront, rather than the left front. Given the location of the debris, and the skid marks on the roadway, Officer Hataway testified that the point of impact was “in what would have been the imaginary travel lane of the [Purvis] vehicle.” Additionally, it was Officer Hataway’s testimony that, at the scene of the accident, Ms. Lashley told him that “she was looking down at her gauges[,] and when she looked up[,] the vehicle struck her.” Officer Hataway issued Ms. Lashley a citation based upon her stating to him that “she didn’t have her eyes on the roadway, she was looking at the gauges just prior to the point of impact, and that she in fact drove across the imaginary centerline.”
Mr. Dennis Groom came upon the accident scene after the collision occurred. It
Significant for purposes of a liability determination are the photographs of the vehicles after the accident, which were also considered by the trial court. These photographs show that the damage to the school bus occurred to the left front of the vehicle, and the damage to Ms. Purvis’ vehicle was on the left front fender.
Based upon the evidence, the trial court concluded that Ms. Purvis was “not improperly in the middle of the road” when the accident occurred. Rather, “the left side of the school bus was encroaching over the center of the road and was partly in [Ms. Purvis’] lane.” Nevertheless, the trial court inexplicably and incomprehen-sively, assessed Ms. Purvis with 40% of the fault for the accident. 17This finding is unsupported by the record. By all accounts, except Ms. Lashley’s, Ms. Purvis was traveling in her lane of travel and never veered into the opposing lane. She, and other witnesses, testified that Ms. Lashley was looking down and was inattentive to the roadway. Although Ms. Lashley denies this, it is consistent with her own testimony that she never applied her brakes before the impact occurred. On the other hand, Ms. Purvis honked her horn and attempted to move off the roadway. Moreover, the debris and the skid marks were clearly in Ms. Purvis’ lane of travel.
Ms. Lashley strongly argues and emphasizes credibility, i.e., Ms. Purvis’ lack thereof, in support of the trial court’s determination of liability and damages. Though her credibility is definitely a factor for consideration, credibility, as it relates to the issue of liability in this case, is not the determinative factor. The determinative factor as to liability in this case is the physical evidence and the testimony of the investigating officer, neither of which are based upon Ms. Purvis’ credibility. Moreover, independent evidence of Ms. Lash-ley’s admission that she was “looking down” and, therefore, not paying attention was likewise a factor not based on Ms. Purvis’ credibility.
Based upon the evidence in the record, we find the conclusion of the trial court that Ms. Purvis was 40% at fault for this accident to be manifestly erroneous. Accordingly, we reverse the judgment of the trial court finding Ms. Purvis to be 40% at fault and conclude that Ms. Lashley was 100% at fault in causing the accident.
General Damages
Ms. Purvis also asserts on appeal that the trial court’s $7,500.00 general damage award was abusively low. We agree.
|sThe Louisiana Supreme Court articulated the standard of review for general damage awards in Duncan v. Kansas City Southern Railway Co., 00-66 (La.10/30/00), 773 So.2d 670, cert, denied, 532 U.S. 992, 121 S.Ct. 1651, 149 L.Ed.2d 508 (2001), as follows:
General damages are those which may not be fixed with pecuniary exactitude; instead, they “involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or life-style which cannot be definitely measured in monetary terms.” Keeth v. Dept, of Pub. Safety & Transp., 618 So.2d 1154, 1160 (La.App. 2 Cir.1993). Vast discretion is accorded the trier of fact in
*688 fixing general damage awards. La. Civ.Code art. 2324.1; Hollenbeck v. Oceaneering Ink, Inc., 96-0877, p. 13 (La.App. 1 Cir. 11/8/96); 685 So.2d 163, 172. This vast discretion is such that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert, denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Thus, the role of the appellate court in reviewing general damage awards is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Youn, 623 So.2d at 1260. As we explained in Youn: Reasonable persons frequently disagree about the measure of general damages in a particular case. It 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 decrease the award.
Id. at 1261.
The initial inquiry, in reviewing an award of general damages, is whether the trier of fact abused its discretion in assessing the amount of damages. Cone v. National Emergency Serv. Inc., 99-0934 (La.10/29/99), 747 So.2d 1085,1089; Reck v. Stevens, 373 So.2d 498 (La.1979). Only after a determination that the trier of fact has abused its “much discretion” is a resort to prior awards appropriate and then only for the purpose of determining the highest or lowest point which is reasonably within that discretion. Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976).
Duncan, 773 So.2d at 682-83.
UStelly v. Zurich Am. Ins. Co., 11-1144, pp. 3-4 (LaApp. 3 Cir. 2/1/12), 83 So.3d 1225,1228.
Undisputedly, as phrased by the trial court, Ms. Purvis “was not in perfect health at the time of the incident at issue.” She had undergone a prior lumbar surgery, had fallen and injured her right shoulder and hand, had prior dental work done on the same tooth about which she complained after the accident, and had been treated for depression. Given Ms. Purvis’ medical history, Ms. Lashley contends that except for the ankle injury, “Ms. Purvis failed to prove that the underlying accident aggravated the pre-existing injuries to her teeth, her shoulder and arm, her back and/or aggravated her preexisting depression issues.” However, the medical evidence does not support this assertion.
Ms. Lashley concedes that Ms. Purvis sustained a sprained ankle as a result of this accident. According to Dr. Rush, the injury was “significante,]” caused swelling and instability, and was resolved by November 2005.
Ms. Purvis also incurred damage to two teeth for which she treated with Dr. Jones. Dr. Jones testified that one of her teeth had a “slight fracture” and was “chipped[,]” and a second tooth “had been fractured pretty severely!)]” In his opinion, Ms. Purvis needs an implant to replace her fractured tooth. Additionally, while it is true that Ms. Purvis had a capped tooth prior to the accident, there was no prior need for repair. When Dr. Jones saw Ms. Purvis just after the accident, with the exception of the fractures, her teeth were in “very good shape.”
Ms. Purvis also suffered a cervical strain as a result of the accident. Her complaints of neck pain were consistent with the muscle spasm noted by Dr. Rush. Ad
With respect to Ms. Purvis’ shoulder injury, Dr. Drez, Dr. Brunet, and Dr. Brown
The subject accident also caused a lumbar strain. According to Dr. Gunderson, this lumbar strain was superimposed on the previously operated-on lumbar spine. An MRI performed in 2007 confirmed an annular tear at L4-5 and L5-S1.
Finally, Ms. Purvis complained of depression following the accident. Although the trial court found “little evidence in the record that shows to what extent her pri- or-diagnosed depression was affected by the accident at issue[,]” this was also a consideration.
For the injuries summarized above, the trial court awarded Ms. Purvis $7,500.00 in general damages. We acknowledge that Ms. Purvis had pre-existing medical problems, and we further acknowledge that the trial court found Ms. Purvis to have a serious credibility issue. However, credi- ' bility does not and cannot negate two fractured teeth, an ankle sprain, and the aggravation of a prior neck and back injury, all of which were fully corroborated by the medical testimony. Though Ms. Purvis does have a questionable criminal history, that does lnnot negate her right to pursue and receive compensatory damages. We are unaware of any law that strips a person convicted of a crime of his/her right to pursue a tort action.
After reviewing the medical evidence and Ms. Purvis’ testimony with regard to the pain that she suffered and continues to suffer as a result of this accident, we find that the trial court’s award of $7,500.00 is abusively low. Ms. Purvis sustained an ankle sprain, two fractured teeth, a cervical strain, a lumbar strain which constituted an aggravation of a pre-existing condition, and a SLAP tear. Her complaints manifested themselves immediately following her June 14, 2005 accident and continued through the date of the trial. Considering the facts in this case, including the future medical treatment discussed below, and noting the trial court’s award of $27,822.83 in past medical expenses, we find that the lowest amount that the trial court could reasonably have awarded is $35,000.00. See Coco, 341 So.2d 332. Accordingly, we hereby amend the general damage award and increase it from $7,500.00 to $35,000.00.
Future Medical Expenses
On appeal, Ms. Purvis argues that the trial court’s “failure to award future medical expenses was, legally and factually, erroneous.” Specifically, the trial court found that Ms. Purvis failed in her burden of proving her entitlement to an award of future medical expenses for den
This court previously addressed the issue of future medical expenses in Cormier [v. Colston, 05-507 (La.App. 3 Cir. 12/30/05),] 918 So.2d 541. There, we explained:
| ipMedical expenses are a component of special damages. Thibeaux v. Trotter, 04-482 (La.App. 3 Cir. 9/29/04), 883 So.2d 1128, writ denied, 04-2692 (La.2/18/05), 896 So.2d 31. The plaintiff bears the burden of proving special damages by a preponderance of the evidence. Iwamoto v. Wilcox, 04-1592 (La.App. 3 Cir. 4/6/05), 900 So.2d 1047. In meeting her burden of proof on the issue of future medical expenses, the plaintiff must show that, more probably than not, these expenses will be incurred and must present medical testimony that they are indicated and the probable cost of these expenses. Veazey v. State Farm Mut. Auto Ins., 587 So.2d 5 (La.App. 3 Cir.1991).
Id. at 547.
Wood v. Am. Nat’l Prop. & Cas. Ins. Co., 07-1589, p. 6 (La.App. 3 Cir. 12/23/08), 1 So.3d 764, 769.
Dr. Jones was of the opinion that correcting the dental problems Ms. Purvis suffered as a result of the accident would require a tooth extraction and the implantation of a prosthetic tooth. He testified that the future dental costs would total $2,500.00. There was no contradictory evidence on the need for the dental work, nor the amount. Additionally, Ms. Purvis testified that she is still experiencing pain and that she wants to have this work performed. Accordingly, we conclude that the trial court was manifestly erroneous in concluding that Ms. Purvis failed to prove this element of future medical expenses, and we award her that amount.
The need for a surgical repair of Ms. Purvis’ shoulder as well as the amount to be incurred was likewise established by the medical evidence. According to the expert opinions of Drs. Drez, Brunet, and Brown, surgery was required to repair the SLAP tear to Ms. Purvis’ shoulder followed by three to four months of physical therapy. The total future costs for the surgery and the subsequent physical therapy would total $21,506.25. The record contains no contradictory evidence on the need for the shoulder surgery, nor the amounts. Ms. Purvis testified that she also 11swished to have this procedure done. Therefore, we conclude that the trial court was likewise manifestly erroneous in concluding that Ms. Purvis failed to prove this element of future medical expenses, and we award her that amount.
For the foregoing reasons, we reverse that portion of the judgment of the trial court awarding $0.00 future medicals and render an award in favor of Ms. Purvis for future medical expenses in the aggregate amount of $24,006.25.
Assessment of Costs
The trial court, “[a]fter taking into account equitable considerations” in accordance with La.Code Civ.P. art.1920,
The trial court’s assessment of costs was consistent with the percentages of fault it attributed to each party. “While the trial court has much discretion in assessing costs ([La.Code Civ.P.] art.1920), appellate courts are obligated to review this ruling and to assess costs which it considers equitable ([La.Code CivJP.] art. 2164 m)
Having found error in the trial court’s allocation of 40% fault to Ms. Purvis, as well as error in the trial court’s award of both general and special damages, we __|_yfurther find the trial court’s assessment of 40% of the costs to Ms. Purvis to be likewise erroneous. We, therefore, reverse the trial court’s judgment relative to the assessment of costs, and we tax all costs of court to Ms. Lashley.
Answer to Appeal
In her answer to appeal, Ms. Lashley seeks a reversal of the trial court’s denial of her motion to supplement the record with evidence of Ms. Purvis’ drug conviction which occurred post-trial, but prior to the rendition of the judgment on damages. In denying the motion, the trial court noted that “this request for supplementation of the record comes at a time when the case has been submitted for decision.” Additionally, the trial court found “that the probative value of this evidence [was] substantially outweighed by the consideration of unfair prejudice, confusion of issues, and [was] cumulative.”
We find it significant that Ms. Lashley’s motion was filed after the matter had been tried and submitted for decision. As such, the note of evidence had been closed. The motion was not made for the purpose of completing the record or for supplementing the record due to an inadvertent omission of documents. Rather, what was sought to be introduced was new evidence not available at the time of trial, akin to a motion for new trial. While a motion for new trial may be granted at the discretion of the trial court upon a finding of good cause, it is incumbent upon the mover to show, among other things, that the evidence is not cumulative in nature. See La.Code Civ.P. art.1973;
In its written reasons denying Ms. Lash-ley’s motion to supplement, the trial court reasoned that “[e]vidence of this conviction is of a category deemed | ^admissible” pursuant to La.Code Evid. art. 609(A).
DECREE
For the reasons assigned, we reverse the trial court judgment allocating 40% fault to Shenan Smith Purvis, and we assess Jana Lashley with 100% fault for the subject accident. We affirm the trial court’s award of general damages, but amend same to increase this award from $7,500.00 to $35,000.00. Additionally, we reverse that portion of the trial court judgment awarding $0.00 in future medical expenses, and we render an award of $24,006.25 for future medical expenses in favor of Shenan Smith Purvis against Jana Lashley and the |1fiGrant Parish School Board. Finally, we affirm the trial court judgment denying Jana Lashley and the Grant Parish School Board’s motion to supplement the record. Costs of the proceedings below and the costs of this appeal are assessed to Jana Lashley and the Grant Parish School Board.
REVERSED IN PART; AFFIRMED IN PART, AS AMENDED; AND RENDERED.
GREMILLION, J., dissents and adopts the trial court’s reasons for judgment.
CONERY, J., concurs in part, dissents in part, and assigns written reasons.
. At the time of the accident, Ms. Lashley was in the course and scope of her employment with the Grant Parish School Board.
. Three separate lawsuits were filed as a result of this accident, and they were consolidated by the trial court for discovery and trial. The first action was filed by Ms. Purvis against Ms. Lashley and the Grant Parish School Board, and Defendants filed a recon-ventional demand against Ms. Purvis and her liability insurer, Safeway Insurance Company (Safeway). The second lawsuit was filed by Ms. Thomisee against Ms. Lashley, the Grant Parish School Board, and Safeway. The third lawsuit, a claim for subrogation, was filed by the Louisiana Workers’ Compensation Corporation with the Office of Workers' Compensation, seeking reimbursement of the workers’ compensation benefits paid by the Grant Parish School Board to Ms. Lashley. Only the claims of Ms. Purvis and Ms. Thomi-see against Ms. Lashley and the Grant Parish School Board were ultimately tried.
.Although the October 11, 2011 judgment denying the Motion for New Trial was included in Ms. Purvis’ Motion and Order for Devol-
. Dr. Brown was Ms. Lashley’s choice for a second medical opinion on Ms. Purvis’ condition.
. This acronym stands for a superior labrum tear occurring from the anterior to the posterior of the shoulder socket.
. Louisiana Code- of Civil Procedure Article 1920 provides: "Unless the judgment provides otherwise, costs shall be paid by the party cast[.]” Further, "the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.” Id.
. Louisiana Code of Civil Procedure Article 2164 provides:
The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages, including attorney fees, for frivolous appeal or application for writs, and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.
. Louisiana Code of Civil Procedure Article 1973 provides: "A new trial may be granted
.Louisiana Code of Evidence Article 609(A) provides:
A. General civil rule. For the purpose of attacking the credibility of a witness in civil cases, no evidence of the details of the crime of which he was convicted is admissible. However, evidence of the name of the crime of which he was convicted and the date of conviction is admissible if the crime:
(1) Was punishable by death or imprisonment in excess of six months under the law
. Louisiana Code of Evidence Article 403 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.”