Angeron v. MartinAngeron v. Martin
This is an appeal by the defendants, James H. Martin (the tortfeasor), Gulf Inland Contractors (Martin‘s employer and owner of the vehicle being driven by Martin), and United States Fire Insurance Company (Gulf Inlаnd‘s liability insurer), of a judgment which awarded the plaintiff, Lorraine Angeron, $99,799.98 in general and special damages and $50,000 in punitive damages, awarded on the basis that Martin‘s intoxication at the time of the accident was a cause in fact of рlaintiff‘s injuries. After a thorough review of the record, we amend the trial court‘s judgment in the following particulars, and otherwise, affirm.
General Damages
Defendants argue that the trial court erred in awarding $90,000 in general damages because such award was based, in рart, on “a distinct possibility” that plaintiff would require future surgery. Defendants argue that “a distinct possibility” of future surgery is insufficient to support an award of damages, and therefore, the trial court committed manifest error. Defendants’ argument is faulty in several respects.
First, we note that future medical expenses are special damages. See Mistich v. Pipelines, Inc., 609 So.2d 921, 938 (La. App. 4th Cir.1992), writ denied, 613 So.2d 996 (La.1993), cert. denied, Brown & Root. Inc. v. Mistich, ___ U.S. ___, 113 S.Ct. 3020, 125 L.Ed.2d 709 (1993). Our review of the record reveals that the trial court did not award special damages for the expense of anticipаted future surgery; the special damage award consists of the plaintiff‘s property damage and loss, including car rental, towing and storage, as well as medical expenses. In awarding general damages, the trial court stated:
As general damages for her injuries, taking into account a distinct possibility that she will require a cervical fusion in the future should her pain become sufficiently severe, the Court will award her general damages in the amount of $90,000.
We do not agree with dеfendants’ contention that the trial court erroneously awarded damages for a distinct possibility of future
There is no mechanical rule for determining general damages and the facts and circumstances of each case must control. Boudreaux v. Farmer, 604 So.2d 641, 654 (La.App. 1st Cir.), writs denied, 605 So.2d 1373 and 1374 (1992). The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact. Only after such a determination of an abuse of discretion is a resort to prior awards appropriate. Youn v. Maritime Overseas Corp. 623 So.2d 1257, 1260 (La.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). We have thoroughly reviewed the record and do not find an abuse of discretion in the trial court‘s assessment of general damages in this case.
Exemplary Damages
The trial court found that defendant Martin‘s intoxication while operating a motor vehicle was a cause in fact of plaintiff‘s resulting injuries and awarded $50,000 in exemplary damages. Defendants assign error to this award contending that it was based on the introduction of inadmissible, irrelevant evidence and is, otherwise, unsupported by the record. We disagree on both counts.
Exemplary damages are available pursuant to
In addition to general and special damages, exemplary damages may be awarded upon proof that the injuries on which the action is based were caused by a wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication while operating a motor vehicle was а cause in fact of the resulting injuries.
In Minvielle v. Lewis, 610 So.2d 942, 946 (La.App. 1st Cir.1992), we stated the required elements for recovery under this statute as follows:
First, the defendant was intoxicated or had a sufficient quantity of intoxicants to make him lose normal control of his mental and physical facilities. Secondly, the drinking was a cause-in-fact of the accident. Thirdly, the injuries were caused by wanton and reckless disregard for the rights and safety of others.
Whether the elements requisite to recovery under
Defendants also contend that the exemplary awаrd damage is flawed because it was based on the testimony of Wanda Whitney, which, defendants contend, is irrelevant and inadmissible. As stated above, even without the testimony of Ms. Whitney, the record supports the trial court‘s finding. Furthermore, we find that Ms. Whitney‘s testimony was both, relevant and admissible. Ms. Whitney‘s testimony concerned an automobile accident she had in 1989 with the defendant, Martin. In the accident with Ms. Whitney, an intoxicated Martin rear-ended Ms. Whitney‘s vehicle at the identical location as thе accident in the instant case. Ms. Whitney testified regarding her injuries and the trial court took judicial notice of Martin‘s “no contest” plea to the charge of DWI in the Whitney accident, a second offense DWI which formed the predicаte for the third offense DWI in the instant accident.
Pursuant to
Finally, we find no abuse of discretion in the amount ($50,000) of the exеmplary damage award. The factors relevant in determining the amount of exemplary damages are: (1) the nature and extent of the harm to the plaintiff; (2) the wealth or financial situation of the defendant; (3) the character of the conduct involved; and (4) the extent to which such conduct offends a sense of justice and propriety. Jordan v. Intercontinental Bulktank Corp., 621 So.2d 1141, 1157 (La.App. 1st Cir.), writs denied, 623 So.2d 1335, 1336 (1993), cert. denied, ___ U.S. ___, 114 S.Ct. 926, 127 L.Ed.2d 219 (1994). In the instant case, plaintiff suffered serious injury, the total loss of her vehicle and other related expenses. Defendant‘s insurer, U.S. Fire, is ultimаtely responsible for the damage award up to the policy limits. The conduct involved is of great concern; Martin, with specific knowledge of the very real threat posed to the public by his drinking and driving, knowingly and repeatedly exposed the public to the perils and risks of his operation of a motor vehicle while he was under the influence of alcohol. Under these circumstances, the award for exemplary damages of $50,000 is well within the trial court‘s discretion аnd supported by the record.
Special Damages
Lastly, defendants contend the special damage award is excessive. Specifically, defendants assert the trial court erred in awarding $1,741.94 for car rental expenses for two months. Damages for thе rental of another vehicle are recoverable for a reasonable length of time. Meshell v. Insurance Company of North America, 416 So.2d 1383, 1388 (La.App. 3rd Cir.1982). The jurisprudence indicates that two months is a reasonable period of time. See Brown v. Morgan, 449 So.2d 606, 610 (La.App. 1st Cir.1984); Reynaud v. Leonard, 430 So.2d 314, 317 (La.App. 3rd Cir.1983). The trial court correctly determined that the replacement cost
Defendants also assert the trial court erred in awarding $650.00 for towing and storage of plaintiff‘s vehicle from March 22, 1991 to June 3, 1991. A bill for $648.00 was admitted into evidence. Defendants argue that they are only obligated for storage fees before plaintiff was notified her vehicle had been declared a total lоss. However, the record reveals that there were ongoing negotiations throughout which plaintiff asserted defendants’ obligation to repair her vehicle. The trial court did not abuse its discretion in finding storage fees awardable.
Finally, dеfendants argue the trial court erred in awarding $5,125.00 for property damage to plaintiff‘s vehicle. Defendants argue the award should only be $3,974.00, pursuant to plaintiff‘s insurer‘s subrogation claim. Because of the difference between the award and the subrogation claim, defendants claim the judgment awards plaintiff $1,151.00 to which she is not entitled.
It is well settled that when an automobile is a total loss the owner is entitled to recover the market value of the vehicle before the accident less its salvage value, if any. Brown v. Morgan, 449 So.2d at 608. The record established that plaintiff‘s vehicle was valued at $5,325.00 and the salvage value was $1,245.00. Although plaintiff received $5,125.00 from her insurer, this amount represented the vehicle‘s value less plaintiff‘s deductible. Plaintiff is entitled to recover the difference between the market value and the salvage value, or $4,080.00. The judgment of the trial court is amended accordingly.
For the foregoing reasons, the trial court judgment is amended, and as amended, affirmed.
AMENDED, AFFIRMED AS AMENDED.
LeBLANC, J., affirms in part and dissents in part and assigns reasons.
LeBLANC, Judge, dissents in part.
I concur in part and dissent in part. I dissent from that portion of the majority opinion awarding plaintiff $90,000.00 in general damages, believing that to be excessive.
I concur with the majority opinion in all other respects.