Wendel v. Travelers Insurance Co.Wendel v. Travelers Insurance Co.
Lead Opinion
[, This is а personal injury action arising out of a rear-end motor vehicle accident. Plaintiffs, Kevin Wendel and wife Vickie Wendel, individually and on behalf of their minor children, brought this action against the rear-ending motorist, Terrell Gilbert, Travelers Insurance Company, and Wing-foot Commercial Tire Systems, LLC. Summary judgment was granted in favor of plaintiff on the issue of liability -and a jury trial was commenced solely as to damages. For the following reasons, we affirm the jury verdict.
FACTS AND PROCEDURAL HISTORY
On February 4, 2009, plaintiff, Kevin Wendel, was injured when a vehicle driven by defendant, Terrell Gilbert, rear-ended his automobile. Shortly after the accident, plaintiff began experiencing neck and back pain. Within a few days of the accident, plaintiff sought the medical attention of a chiropractor, Dr. Bill Batherson. Dr. Batherson recommended that plaintiff set up an appointment with his office, Spine Care Clinic, if the injuries continued. Plaintiff called Dr. Batherson’s office on the tenth day to reserve the next available appointment as he was still experiencing pain. It was ultimately established that plaintiff had a herniated disc in his neck, which required a surgical fusion, and low back disc |2injuries, which required epidural injections. Plaintiffs surgicаl procedures were unsuccessful and plaintiff was diagnosed with “chronic regional pain syndrome,” which is incurable.
On. September 14, 2009, plaintiff filed suit naming as defendants Terrell Gilbert, Travelers Insurance Company, and Wing-foot Commercial Tire System, LLC. On May 31, 2011, summary judgment was granted in favor of plaintiff on the issue of liability. The case proceeded to trial in June, 2013 solely as to damages, during which time defendants moved for a directed verdict on plaintiffs wife’s and children’s claims for loss of consortium. The trial judge granted the motion on behalf of plaintiffs wife but denied the motion on behalf of his children, leaving that issue for the jury to decide.
Following a six-day trial, the jury returned a verdict in favor of plaintiff. The following awards were rendered:
A.KEVIN WENDEL
1) Past medical expenses $175,540.43
2) Future medical and rehabilitation expenses $1,986,317.00
3) Past, present, and future physical pain and suffering $350,000.00
4) Past, present, and future mental anguish $150,000.00
5) Loss of enjoyment of life $50,000.00
6) Past lost wages $190,161.00
7) Future loss of earning capacity $931,000.00
8) Loss of personal services $40,000.00
TOTAL $3,873,018.43
B. LAINE WENDEL 1) Loss of consortium $50,000.00
C. CHLOE WENDEL 1) Loss of consortium $50,000.00
On June 28, 2013, the trial court entered a judgment reflecting the jury’s verdict. Defendants subsequently filed Motions for Judgment Notwithstanding the Verdict (JNOV) and/or New Trial. The trial court denied these motions and this appeal followed.
|sDISCUSSION
On appeal, defendants assign two errors: (1) the trial court erred in denying defendants’ motion for directed verdict on plaintiffs daughters’ claims for loss of consortium; and (2) the trial court’s awards for past lost wages аnd future loss of earning capacity, future medical and rehabilitation expenses, and general damages are erroneously excessive and should be reduced.
Plaintiff alleges the trial court erred in a number of ways in his brief.
Whether the trial court erred in its rulings regarding the issues raised in plaintiffs brief, but not in his answer to appeal, are not properly raised issues on appeal. Miller v. S. Baptist Hosp., 2000-1352, p. 20 (La.App. 4 Cir. 11/21/01),
Motions for Directed Verdict
The trial court’s standard when ruling on a directed verdict is whether “after considering the evidence in the light most favorable to the party opposed to the 14motion, [the trial court] finds that it points so strongly and overwhelmingly in favor of the moving party that reasonable minds could not arrive at a contrary verdict on that issue.” Simon v. American
The standard of review for the appellate court is “not whether a plaintiff proved his case by a preponderance of the evidence, but rather ... upon reviewing the evidence submitted, the court could conсlude that reasonable persons could not have reached a verdict in favor of the plaintiff.” Id. (citing Davis v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, 2003-2219, pp. 7-8 (La.App. 4 Cir. 11/17/04),
Loss of consortium in regards to a parent-child relationship involves a loss pertaining to aid, assistance, companionship, affection, society, or service. Tadlock v. Taylor, 2002-0712, p. 13 (La.App. 4 Cir. 9/24/03),
In ruling on defendants’ motions for directed verdict, the trial court stated:
The court is going to grant the directed verdict as it relates to Vickie Wendel. However, it is going to deny the directed verdict as it pertains to Laine Wendel [and] Chloe Wendel. The Court does not find that there was any evidence that was presented which would support a loss of consortium claim for Viсkie Wendel. However, the claim of the children, as it relates to loss of society, loss of ability ... to care for the children is clearly something that is a question of fact, and there has been sufficient evidence presented for that.
Plaintiff testified, as did his mother and sister, regarding the impact his injuries and subsequent depression had on his relationship with his daughters. Plaintiff testified that because of his chrоnic physical pain, he interacts with them much less and they now only live with him part-time because he is unable to tend to them like before. Viewing the evidence in the light most favorable to plaintiff, we are convinced that there is sufficient evidence to conclude that plaintiff proved a prima facie case for his daughters’ loss of consortium claims. Accordingly, these claims were properly before the jury and the trial court did not err in its denial of defendants’ motion for directed verdict.
On the contrary, there was no testimony regarding the impact plaintiffs injuries had on his marriage. Plaintiffs wife never testified and plaintiff acknowledged that their marriage was having problems
General Damages
An appellate court may not overturn an award of general damages unless the trial court abused its broad discretion in making the award. Munch v. Backer, 2010-1544, p. 8 (La.App. 4 Cir. 3/23/11),
Here, the trial court heard testimony from plaintiffs interventional spine and pain management physician, Dr. Thompson, concerning his injuries, health |7prognosis, and this accident’s effect on plaintiffs well-being. Plaintiffs neurosurgeon, Dr. Vogel, also testified to the rarity of plaintiffs disease. Further, the triаl court heard testimony from plaintiff himself, which was corroborated by his mother’s testimony, about his continuing pain and how the accident has impaired his life. After a thorough review of the record, we do not find the trial court abused its vast discretion in its award of damages.
Special Damages
The trier of fact is entitled to wide discretion in assessing the appropriate amount of special damages, which is then givеn great deference on review. Menard v. Lafayette Ins. Co., 2009-1869, pp. 13-14 (La.3/16/10),
An appellate court, in reviewing a jury’s factual conclusions with regard to special damages, must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court’s conclusion, and the finding must be clearly wrong. This test requires a reviewing court to do more than simply review the record for some evidence, which supports or controverts the trial court’s findings. The court must review the entire record to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. The issue to be resolved on review is not whether the jury was right or wrong, but whether the jury’s fact finding сonclusion was a reasonable one.
Id., 2009-1869, pp. 14-15,
A. Past Lost Wages and Future Loss of Earning Capacity
A claim for lost wages need not be proven with mathematical certainty; it only requires such proof which reasonably establishes plaintiffs claim, which includes plaintiffs own reasonable testimony. Todd v. Delta Queen Steamboat Co., 2007-1518, pp. 4-5 (La.App. 4 Cir. 8/6/08),
In the present case, plaintiff suffered injuries to his neck and back from the accident at issue. As a result of these injuries, plaintiff underwent a surgical fusion and has received numerous epidural steroid injections. Dr. Vogel, the neurosurgeon who performed the surgeries, diagnosed plaintiff with “chronic regional pain syndrome” after plaintiffs surgeries were deemed unsuccessful as he continued to endure persistent pain.
With regard to loss of incomе, plaintiff testified that his sister has always filed his taxes since she maintained the records for their family business, Old World Builders. Although plaintiff testified he has never personally filed his tax returns, plaintiff affirmed he earned approximately $80,000.00 annually working for Old World Builders.
Both plaintiff and defendant provided testimony from their economists to estimate plaintiffs past and future lost wages. Dr. Shael Wolfson, plaintiffs | ineconomist, determined plaintiffs work-life to be approximately 18.77 years from the date of trial. Dr. Wolfson concluded, based on an annual income of $79,771.00, plaintiffs рast lost wages were $352,992.00 and future loss of earnings were $1,300,064.00. Kenneth Boudreaux, defendants’ economist, found plaintiffs- work-life to be approximately 21.37 years from the date of trial. Mr. Boudreaux issued two reports, one in January, 2012 and the other in March, 2012. Mr. Boudreaux’s initial report calculated the figures using an annual salary of $79,771.00 with a disclaimer that he thought it was “unusual” that plaintiffs salary was so high and noted his fоur year delay in filing. Mr. Boudreaux’s subsequent report used an annual salary of $17,900.00, the maximum salary one can make without-legally filing taxes. Regardless of which report the jury endorsed in ' calculating its award, defendants argue on appeal that plaintiffs pre-accident salary was $29,337.23, maintaining the absolute highest value for past lost wages would be $128,203.70 and $626,936.61 for future lost wages.
The jury’s award of past lost wages for 4.37 years, the time between the accident and trial, implies an annual salary of $43,515.00 and future loss of earning capacity award suggests an annual salary between $43,565.75-$49,600.43, subject to which expert’s work-life estimation was adopted. Such an amount for plaintiffs loss of past wages and loss of future earning capacity is well supported by the record before us. Considering all testimоny introduced by both parties, we conclude the jury’s awards for past lost wages and loss of future earning capacity are not excessive, but reasonable. We fail to find an abuse of the trial court’s much discretion in rendering these awards.
_jjjjB. Future Medical and Rehabilitation Expenses
In order for plaintiff to receive an award for future medical expenses, he must prove they are medically necessary by a preрonderance of the evidence. Menard, 2009-1869, p. 13,
Future medical .expenses need not be established with mathematical certainty although a plaintiff must prove that it is more probable than not that expenses will be incurred ... Although a plaintiff is not required to prove the exact value of the necessary expenses, sоme evidence to support the award must be contained in the record ... If the fact finder can determine from past medical expenses or other evidence a minimal amount that reasonable minds could agree upon, then the award is proper.
2009-1233, p. 15 (La.App. 4 Cir. 4/14/10),
Applying this standard, we find the record demonstrates the existence of a reasonable factual basis for the trial court’s award for future medical and rehabilitation expenses. The jury heard plaintiffs testimony that he continues to have severe neck and back pain. Dr. Thompson, Mr. Roberts, and plaintiffs mother all testified that because of his constant pain, plaintiff is depressed. Dr. Thompson further testified that based on plaintiffs prognosis, he believed a cervical medial branch block, annual rhizotomy, tri-annual steroid injections, spinal court stimulator implant, bi-monthly pain management appointments, | ^psychiatric therapy, and routine prescription medications
Frivolous Appeal
Damages for a frivolous appeal will be awarded if the appeal is taken solely to delay the action, if the appellant does not seriously believe the law and argument that is being advanced, or if the appeal does not present a substantial legal question. Vincent v. Vincent, 2011-1822, p. 11 (La.App. 4 Cir. 5/30/12),
After a review of the record, we cannot conclude that defendants did not seriously believe they were entitled to relief or that the appeal was taken solely for delay or on an immaterial issue. We therefore decline plaintiffs request to award damages and attorney’s fees for a frivolous appeal.
11SDECREE
For the foregoing reasons, this Court finds no еrror in the trial court’s rulings on defendants’ motions for directed verdict. We further find the jury’s awards were clearly supported by a reasonable factual basis in the record. Accordingly, we affirm the trial court’s judgment
AFFIRMED.
DYSART, J., concurs in part and dissents in part.
Notes
. Specifically, plaintiff argues the trial court erred in: prohibiting a permanent disability line on the jury verdict form, omitting the requested jury charge on earning capacity, allowing economist Kenneth Boudreaux to testify, admitting evidence of plaintiff's failure to file tax returns prior to the accident, and plaintiff’s daughters’ loss of consortium awards.
. Defendants argue in their brief that the general damages award of $650,000 was excessive. The $100,000 awarded to plaintiff’s children ($50,000 each) has already been addressed. The remaining value of $550,000 is attributable to: $350,000 for pain and suffering, $150,000 for mental anguish, and $50,000 for loss of enjoyment of life.
. This amount includes the "draws” that Old World Builders paid on behalf of plaintiff to third parties as well as the "management fees” given directly to plaintiff. While it is disputed whether income includes the "draw” amounts, or solely "management fees,” this amount is recognized simply for noting plaintiff’s testimony.
. Dr. Thompson testified that he believed prescription drugs are medically necеssary for the rest of plaintiff’s life, including, but not limited to these specific medications as corn-parable new medicines are frequently released: Lortab, Robaxin, Neurontin, Cymbal-ta, and Zanaflex.
Concurrence in Part
concurs in part and dissents in-part.
|,While I agree that the loss of consortium awards and the general damages award are appropriate, the record does not substantiate the past lost wages or future loss of earning capacity. It is the plaintiffs burden “of proving the time missed
Similarly, the record dоes not substantiate the sizable award for future medical and rehabilitation expenses. Our jurisprudence is well-settled that |g“[a]wards will not be made for future medical expenses which may or may not occur in' the absence of medical testimony that they are indicated and setting out their probable cost” McGraw v. Orleans Parish Sch. Bd.,