Demarest v. Progressive American Ins. Co.Demarest v. Progressive American Ins. Co.
This litigation arises out of a two-car collision on July 4, 1986 at Causeway Boulevard, involving a 1983 Oldsmobile Cutlass owned and operated by William L. Feibleman and a 1984 Toyota Celica owned and operated by William H. Petrie. The only passenger in the Feibleman automobile was Michelle Reneé Demarest and the only passenger in the Petrie automobile was Paula J. Occhipinti. Demarest, Occhipinti, and Petrie brought separate suits against Feibleman and his automobile liability insurance carriers, Progressive American Insurance Company (Progressive), the primary insurer, and United States Fire Insurance Company (USFIC), the excess insurer, for damages allegedly resulting from the accident, including punitive or exemplary damages.
The claim of Paula J. Occhipinti was settled before the trial and her suit dismissed, therefore, her claim is not involved in this appeal. The others were consolidated for a jury trial.
On November 14, 1988, based on the jury verdict, judgment was entered in favor of Michelle Demarest for $163,667.00, computed as $127,007.00 compensatory and $40,000.00 exemplary damages, less $3,340.00 penalty assessed for failure to wear a seatbelt. On November 18, 1988, also based on the jury verdict, judgment was rendered in favor of William Petrie for $123,358.00, computed as $83,358.00 compensatory and $40,000.00 exemplary damages. The respective judgments awarded legal interest on all damages from date of judicial demand. The damages awarded together with the interest due thereon have been paid or deposited in the court except for the prejudgment interest on the exemplary damage awards. Progressive has fulfilled its obligation as the primary carrier and hence is not a party to the appeal.
Feibleman and USFIC perfected a suspensive appeal assigning as error solely the imposition of prejudgment interest on the exemplary damage awards on both judgments. Petrie perfected a devolutive appeal and urges the inadequacy of the damage award. Demarest answered Feibleman‘s and USFIC‘s appeal and also perfected a devolutive appeal, alleging inadequacy of the damage award and error in imposing a 2% penalty under
Thus, the issues for our consideration on the appeal are: (1) the adequacy of the award to Demarest, (2) the adequacy of the
FACTS RELATIVE TO ACCIDENT
On July 3, 1986, William Feibleman, Michelle Demarest and Barbara Delchamps went out celebrating, first to Southern Yacht Club, and then to the Inn of Five Happiness for a birthday party. All three consumed alcoholic beverages.
Mr. Feibleman began drinking about 5:00 P.M. on July 3, 1986 and continued to drink at the various social functions throughout the evening. On the way home, Ms. Demarest had fallen asleep on the front seat and was not wearing her seatbelt. They dropped Ms. Delchamps off at her home, then proceeded to bring Ms. Demarest home. Mr. Feibleman turned onto Causeway Boulevard, a four-lane divided highway which is a major artery in Jefferson Parish, and proceeded southbound in the northbound lane. After traveling over two overpasses, Feibleman crossed over the median and proceeded northbound in the southbound lane. He again crossed the Interstate 10 overpass and was approaching the Veterans Boulevard overpass when he struck the automobile being driven by William Petrie head-on. Petrie was entering Causeway Boulevard on the approach ramp from Veterans Boulevard and was attempting to “merge” when the collision occurred. Deputy Dennis Thornton of the Jefferson Parish Sheriff‘s office saw Feibleman‘s vehicle traveling on the wrong side of the roadway and witnessed the accident. Feibleman was arrested for driving while intoxicated and subsequently pleaded guilty as charged. The impact of the collision demolished both cars.
QUANTUM—MS. DEMAREST
The jury computed the damage award to Ms. Demarest as follows:
Past, future, mental and physical pain and suffering $ 75,000.00 Permanent disability 25,000.00 Past medical expenses 27,007.00 ___________ Total Compensatory 127,007.00 Exemplary Damages under LSA-C.C. Article 2315.41 40,000.00 ___________ Total Damages 167,007.00 Less 2% Penalty LSA-R.S. 32:295.1(E)2 3,340.00 ___________ Judgment $163,667.00
We have made a careful review of the record and note that Ms. Demarest sustained a severe ten-inch laceration to her head and a two-inch laceration to her forehead, a fractured bone in her right hand, a fractured ankle, a perforated intestine, residual scarring of the head and abdomen, and bruises to her body.
Following the accident Ms. Demarest was rushed to the emergency room (“E.R.“) at East Jefferson Hospital. There was medical testimony that soon after she arrived, her blood pressure dropped to an extremely low level causing a critical life or death situation. Although she was in great pain, she could not be given morphine or dilaudid as pain medications because it could detrimentally affect her blood pressure. Due to the low blood pressure a central venous pressure (CVP) line was placed in her neck to monitor blood volume status. This CVP line and two IV lines in her arms were used to give her blood. Because the blood pressure did not stabilize and for fear Ms. Demarest might go into shock, Dr. Barbara Valvo elected to operate on the ten-inch laceration extending from the front to the back of her head and the two-inch laceration on her forehead. Half of Ms. Demarest‘s head was shaved for the operation. After lifting the scalp off the skull, Dr. Valvo found two severed arteries which accounted for the extreme amount of blood loss and low blood pressure. After surgery, Ms. Demarest was sent to the intensive care unit (“I.C.U.“) so she could receive intensive monitoring because her condition was still critical. She needed monitoring for the drain to her head, the CVP line in her neck, the nasal gastric tube down her nose and into her stomach, as well as the catheter. Ms. Demarest recalls feeling very frightened that she might die and her mother attested to the fact that she needed constant reassurance that she would not die. She was not transferred to a regular hospital room until six days after the accident.
Ms. Demarest testified that she felt constant pain in her head from the minute she woke up. Her head felt like it had been ripped out and put back together, that it throbbed and did not feel like her head.
While her hair grew back over the next few months and currently helps camouflage the residual scar on her scalp and forehead, for about six months Ms. Demarest had to wrap her head with long sashes to hide her partially shaved head whenever she went out in public. Understandably, this was particularly upsetting to a young woman attending college. She apparently stopped wearing the head coverings around January of the year following the accident.
With regard to the injury to Ms. Demarest‘s right hand, according to the medical testimony she suffered a small non-displaced fracture at the fifth metacarpal which required a splint on her hand. Her hand especially hurt during the first few weeks while she learned to use crutches, since she put all of her weight on her hands. This resulted in some difficulty in writing for a time. In fact, after she returned to L.S.U., she continued to wear her hand cast at night after she had written with and used her right hand all day; towards the end of the day, her hand would tire.
Ms. Demarest‘s fractured left ankle required surgery to screw in place the ends of the fractured bone in her ankle. From the minute she awakened in the E.R., her ankle throbbed with pain and she could find no position which eased the pain. According to medical testimony, her foot cast was removed after two months but swelling and tenderness continued for some three
Ms. Demarest‘s abdomen was also a source of extreme pain for a long time. Before her head surgery, the doctors, fearing major internal injuries because of tenderness and extreme pain, performed a laparotomy to check for internal bleeding. Although the fluids were pink, indicating surgery was not necessary, due to repeated complaints of severe pain, exploratory surgery was performed on Ms. Demarest‘s abdomen on July 10, 1986, six days after the accident. She testified that the pain felt like something was burning a hole through her stomach. She screamed for pain medicine and she was given medication which only relieved the pain for fifteen minute intervals. This continued for eight hours prior to surgery. In the course of the surgery, the surgeon located a ruptured small intestine and repaired it. She was not discharged from the hospital until ten days following the abdominal surgery.
As a result of the abdominal surgery Ms. Demarest has a rather large residual abdominal scar running from the breastbone to the pubic bone. She explains how it still hurts sometimes (when she is tired it starts to feel like it‘s pulling). The scar imposes a severe retriction on what she can wear. She is prevented from wearing certain fashionable clothes, such as, bikinis, midriff-baring tops, etc., without displaying the scar. Further she testified that as a result of this scar she feels defective, like she is less of a woman since it is very unattractive. She feels upset about the scar because it will always be with her; she will never be able to forget the accident. Ms. Demarest testified, and her plastic surgeon confirmed, Ms. Demarest is not interested in plastic surgery because the surgery runs the risk of having the scar cheloid (thicken) and affords only limited relief.
As a result of the injuries, Ms. Demarest remained in the hospital for sixteen days, six days of which were in the intensive care unit and ten days in a regular room. After her discharge from the hospital, her mother testified Ms. Demarest was in quite a bit of pain and had difficulty moving around because of her injured ankle and hand and trying to move with the incision on her stomach. Her mother recalls she was basically house-ridden for four to six weeks after her discharge and the only thing she did was attend physical therapy sessions to get instructions on how to use her crutches.
As a result of the accident, Ms. Demarest also had to drop out of summer school at U.N.O. where she had just completed her mid-term exam. She decided, however, to return to L.S.U. for the fall semester. She arrived at L.S.U. about one week after it started. Physically, she could not be on her own. The broken hand and ankle, coupled with the stomach surgery, hindered her ability to use crutches. Friends helped her get around where her mother left off. Although she was still in pain, she did not want to miss school, so she did the best she could under the circumstances.
In support of his contentions, counsel for Ms. Demarest has ably and eloquently shown the pain, suffering, and mental anguish undergone by Ms. Demarest, particularly during the first few weeks following the accident. Additionally, we readily understand Ms. Demarest‘s concern over the disfigurement from the scalping and residual scars of the head and abdomen.
In Gagnet v. Zummo, 487 So.2d 721, 723 (5th Cir.1986) this Court stated:
“In determining whether an award of damages is inadequate or excessive we must first inquire whether the jury‘s
After reviewing the testimony and given the seriousness of the injuries, and thus the occasion for extreme mental anguish, the extreme physical pain of long duration without the ability to relieve same with the use of pain-killing chemicals, the extent and nature of the physical injuries, and the future mental anguish from the residual scars, in our view the jury committed manifest error in setting the general damage award at $75,000.00. We further find that an award of $125,000.00 would more reasonably compensate Ms. Demarest for her general damages under the particular facts and circumstances of this case and will amend the award to her accordingly. We do not feel, however, that the jury abused its discretion in deciding not to award damages for future cosmetic surgery.
The jury was instructed that after considering the nature and extent of harm to the plaintiff, the wealth or financial situation of the defendant, and the extent to which defendant‘s conduct offends a sense of justice and propriety, it was within its discretion to award exemplary damages. Since there is no absolute standard or schedule set out in the legislation, a discretionary ruling under
Here the defendant, Feibleman, had voluntarily consumed sufficient alcohol intoxicants to cause him to lose normal control of his mental and physical faculties at the time of the accident. His consumption of alcohol was a cause in fact of the accident and constituted a wanton and reckless disregard of the rights and safety of others. Clearly, therefore, exemplary damages should be awarded. Given the facts here, however, we cannot say the jury abused its discretion in concluding an award of $40,000.00 was adequate exemplary damages.
Under the provisions of
Based on the foregoing we revise and compute the award to Ms. Demarest as follows:
Past and future mental and physical pain and suffering $ 125,000.00 Permanent disability 25,000.00 Past medical expenses 27,007.00 ___________ Total $177,007.00
Less 2% for failure to mitigate pursuant to LSA-R.S. 32:295.1(E) $ 3,540.00 ___________ Total Compensatory Damages $173,467.00 Exemplary damages under LSA-C.C. Article 2315.4 40,000.00 ___________ Total Damages $213,467.00
QUANTUM—PETRIE
The jury computed the damage award to Mr. Petrie as follows:
Past and future mental and physical pain and suffering $ 60,000.00 Permanent disability 10,000.00 Past medical expenses 13,358.00 ___________ Total Compensatory Damages $ 83,358.00 Exemplary Damages under LSA-C.C. Article 2315.44 40,000.00 ___________ Total $123,358.00
Counsel for Petrie argues that the compensatory damages should be increased by $75,000.00 ($60,000.00 increase in general damages and $15,000.00 for future medicals). He also argues for exemplary damages of $100,000.00 (a $60,000.00 increase).
The same standard of review discussed under the caption “Quantum—Ms. Demarest” is applicable here.
We have made a careful review of the record and note the following: According to Dr. Courtney Russo, an orthopedic surgeon and the current treating physician, Mr. Petrie sustained a cervical sprain, lumbar sprain, a perforation and fracture of the sternum, fracture of the right second rib, a broken nose and cut lip.
Mr. Petrie was discharged from the hospital after four days and thereafter remained confined to his home for one and a half weeks. He was given muscle relaxers and pain pills to ameliorate his condition. His treatment was conservative and encompassed physical therapy, heat, a soft collar for his neck, and in-home traction. Although his injuries gradually healed, he contends he has a residual disability of his cervical spine as a result of the injuries sustained in the accident here sued on.
At trial, Mr. Petrie testified that he underwent a cervical fusion, performed by Dr. Carlos Gorbitz, a neurosurgeon, in 1985, prior to the accident here sued on. He testified the surgery was a success and relieved the problems he previously had regarding strength in his arms and hands. Then in a November 1985 car accident he re-injured his neck but, by the time of the accident here sued on, that had also cleared. Now, as a result of the July 4, 1986 accident, he claims he has recurrent cervical spine problems provoking his present neck pain and arm and hand weakness.
Mr. Petrie contends a seizure he suffered in December 1986 while undergoing tests in the hospital was a result of the accident sued on. Mr. Petrie was diagnosed as an epileptic in 1983 by Dr. Donald Richardson, a neurological surgeon, who felt this condition was congenital as Petrie had a history of childhood seizures as well as three seizures in the preceding year (1982). Additionally, no brain injury occurred as a result of this accident as Petrie remained conscious and suffered no amnesia after the accident.
At trial, the neurosurgeon who performed the 1985 cervical fusion, Dr. Gorbitz, testified that when Mr. Petrie came to him, he complained that for three years he had been suffering from neck pain and weakness and numbness in his arms. Dr. Gorbitz‘s findings in 1985 included muscle wasting in the shoulders, arms and hands, with a significantly weak right hand grip, similar to present findings. Although the extensive surgery performed in 1985 was considered a success, Mr. Petrie continued to experience a weak hand grip and weakness of the intrinsic hand and finger muscles. Mr. Petrie visited Dr. Gorbitz and, as
Mr. Petrie‘s treating physician, Dr. Russo, also testified at trial. He said he first saw Mr. Petrie in December 1985, following a November 1985 car accident. Mr. Petrie was advised to see his neck surgeon concerning all of his neck complaints, since he apparently felt neck pain immediately thereafter. Dr. Russo diagnosed a cervical strain/sprain and noted a slight weakness in Mr. Petrie‘s right hand grip as a result of the November 1985 accident. In May 1986, two months before the July 4th accident, Mr. Petrie complained to Dr. Russo that his neck was still bothering him and that he had cracking/popping in his spine and neck.
Dr. Russo saw Mr. Petrie on July 11, 1986, a few days after the subject accident. His principal complaints included his cervical spine, headaches, and pain in his shoulders. During subsequent visits, Dr. Russo noted that both hands were much weaker and he was very concerned about the continued deterioration, especially in the right hand. At this time, Dr. Russo noticed for the first time that Mr. Petrie‘s muscles were atrophying (weakening and shrinking) in his right hand. He suggested an evaluation be done to determine if surgery might halt the deterioration. When asked about future surgery, Dr. Russo opined that if Mr. Petrie‘s neurological deficit progressed, he felt surgery would be necessary.
An evaluation was done in November 1986 by Dr. Michael Carey, a neurosurgeon, who testified at trial via his deposition. Mr. Petrie gave a history to Dr. Carey, including the 1985 neck surgery and the car accident on July 4th, 1986, but failed to mention his interim November 1985 car accident. Test results evidenced a bone strut, which was previously replaced during his 1985 neck surgery, indenting the sack around the cervical spinal cord and putting pressure on it. Dr. Carey proposed surgery, as the cause of Mr. Petrie‘s muscles wasting away was due to pressure on the spinal cord which was aggravated by the July 4th accident. Because of the serious risks involved, Mr. Petrie solicited a second opinion.
Mr. Petrie saw Dr. Edward Connolly, a neurosurgeon, on December 31, 1986 for a second opinion concerning the necessity of surgery. The doctor testified at trial via his deposition. Dr. Connolly performed no tests, but instead interpreted the test results performed in December 1986 as well as the earlier January 1986 test results. Dr. Connolly opined that Mr. Petrie‘s cervical spinal cord was normal without constriction, and felt Mr. Petrie suffered a cervical sprain as a result of the July 4th accident.
Dr. Connolly admitted in his deposition that he could not tell if there was a neurological change by looking at Mr. Petrie and at his old records. Regarding further surgery, Dr. Connolly felt that unless he showed progression of his neurological findings, further surgery should not be done.
Dr. Russo continued to see Mr. Petrie up until the time of trial. Dr. Russo testified that on December 11, 1987, about one year after Dr. Connolly‘s evaluation, he found that Mr. Petrie‘s muscles were atrophying more in the upper right extremity and that his hand was much worse, much weaker. At that time, he stated the neurological findings in the right upper extremity were progressing downhill. Dr. Russo concluded that Mr. Petrie‘s problems were a direct result of the July 4th accident and that there was no way to avoid future surgery. He added that post-operative recovery would last about four to six months. He estimated the total cost at from $12,000.00 to $15,000.00.
In Wells v. Allstate Ins. Co., 510 So.2d 763, 767-768 (1st Cir.1987), the court addressed the concern of the weight to be given to the testimony of a treating versus a non-treating physician and based on a considerable line of cases concluded: “It is well settled that the testimony of the treating
As a rule, Dr. Russo‘s testimony, as the treating physician, is entitled to greater weight than Dr. Connolly‘s, since he was more familiar with Mr. Petrie‘s neurological progression.
After carefully reviewing all of the evidence under the appropriate standard and considering the treating physician‘s certainty Mr. Petrie‘s condition is deteriorating and will need future surgery, we find that the jury erred in deciding that future surgery would not be necessary and therefore failed to include an award for future surgery. Rather, the preponderance of the evidence indicates Mr. Petrie‘s neurological findings have worsened since he last saw Dr. Connolly and the probability of future surgery is virtually certain. Since Dr. Russo estimated the cost of surgery at between $12,000.00 and $15,000.00, we find an award of $15,000.00 would reasonably compensate Mr. Petrie for a future surgery and will amend the judgment in his favor accordingly. We do not feel, however, that the jury abused its discretion in awarding Mr. Petrie $83,358.00 for the remaining compensatory damages. Additionally, for the same reasons stated under the caption “Quantum—Ms. Demarest” we cannot say that the jury abused its discretion in awarding exemplary damages. Therefore, the judgment will be affirmed in all other respects.
PREJUDGMENT INTEREST ON EXEMPLARY DAMAGES
The trial judge awarded prejudgment interest on the entire damage awards. Defendants appeal from that portion of the judgment ordering them to pay prejudgment interest on the exemplary damages awarded. By doing so, they raise a res nova issue in Louisiana, i.e., whether prejudgment interest is recoverable on an award of exemplary damages. We hold that it is.
Defendants argue that pursuant to
The narrow question before us here is whether the judgment of the court below is one that the courts of Louisiana would view as “sounding in damages, ex delicto” within the intendment of
The legislature by the passage of Act 511 of 1984 enacted Civil Code Article 2315.1 to enlarge the kinds of damages recoverable to now include exemplary damages where the defendant‘s intoxication is a cause in fact of the plaintiff‘s injury. Rather than placing this amendment separate and apart, adding it to the primary tort article indicates that exemplary damages are damages “ex delicto” within the
As stated in Creech v. Aetna Casualty & Surety Company, 516 So.2d 1168, 1171 (2nd Cir.1987), “There is no doubt that the exemplary damages contemplated by
A brief review of the historical objectives of
That court points out that prior to the enactment of
When
In the case at bar, Michelle Demarest and William Petrie are tort plaintiffs who bring their suits in tort. The judgments encompassing compensatory and exemplary damages are based on defendants’ tort liability and, hence, arise ex delicto. Therefore, we find that they fall within the class of judgments that
Further, to hold that the prejudgment interest contemplated in
Defendants argue that exemplary damages are synonomous with penalties and that penalties are beyond the scope of
Additionally, Louisiana courts have previously held that legal interest is properly awarded on penalties and attorney‘s fees arising under certain statutes. For instance, in Coulton v. Levitz Furniture Corporation, 391 So.2d 80 (4th Cir.1980), the trial judge awarded a claimant legal interest from the date of judicial demand on penalties and attorney‘s fees arising in a worker‘s compensation case. Similarly, in another worker‘s compensation case, George v. Marcantel Feed Stores, Inc., 446 So.2d 345 (3rd Cir.1984), the court awarded legal interest on attorney‘s fees from date of judicial demand. In Negem v. Paul Revere Life Insurance Company, 366 So.2d 194 (2nd Cir.1978), the court held that legal interest was properly awarded on penalties and attorney‘s fees imposed under
“Although we are unable to find any jurisprudence dealing with the issue of
whether legal interest may be awarded on penalties and attorney fees imposed under La.R.S. 22:657 , our research reveals that interest has been awarded on the 12% penalty provision and attorney fees imposed underLa.R.S. 22:658 , which deals with payment of claims under policies other than life, health and accident. Baghramain v. MFA Mutual Ins. Co., 315 So.2d 849 (La.App. 3rd Cir.1975) (writ denied 320 So.2d 207, 209 (La. 1975)); Doty v. Central Mutual Ins. Co., 186 So.2d 328 (La.App. 3d Cir.1966) (writ denied 249 La. 486, 187 So.2d 451 (1966); Roberts v. Houston Fire & Casualty Co., 168 So.2d 457 (La.App. 3d Cir.1964). This statute, likeR.S. 22:657 , does not expressly provide for legal interest. Analogizing from this jurisprudence, we find the insurer should be required to pay legal interest upon the penalties and attorney fees provided for inLa.R.S. 22:657 .”
CONCLUSION
For the reasons above stated the trial court‘s judgment of November 14, 1988 in favor of Michelle Demarest is amended to award a total of $177,007.00 less 2% for failure to mitigate pursuant to
AMENDED AND, AS AMENDED, AFFIRMED.
Notes
“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 a cause in fact of the resulting injuries.”
“In any action to recover damages arising out of the ownership, common maintenance, or operation of a motor vehicle, failure to wear a safety belt in violation of this Section shall not be considered evidence of comparative negligence. Failure to wear a safety belt in violation of this Section may be admitted to mitigate damages, but only when the party offering such evidence proves that:
(1) There was a functioning safety belt available to the injured party;
(2) The injured party failed to use a safety belt;
(3) The failure to use a safety belt contributed to the party‘s injuries;
(4) The use of a safety belt would have reduced the injured party‘s damages in an amount equal to or in excess of the amount of mitigation sought. In no event shall the award of damages be reduced by more than two percent for the nonuse of a safety belt.”
“When damages are insusceptible of precise measurement, much discretion shall be left to the court for the reasonable assessment of these damages.”
“Legal interest shall attach from date of judicial demand, on all judgments, sounding in damages, `ex delicto,’ which may be rendered by any of the courts.” (Emphasis supplied).
“Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
Damages may include loss of consortium, service, and society, and shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person.”