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05/18/88 Glenna L. Koury v. Lanier Express

May 18, 1988

BAKER AND LAWRENCE C. HENDRICKS AND JAMES C. WOODS, PLAINTIFF-APPELLANT

v.

LANIER EXPRESS, INC., ROBERT F. VERGAMINI AND HANOVER INSURANCE COMPANY, DEFENDANTS-APPELLEES 1988.LA.1775 DATE DECIDED: MAY 18, 1988

PUBLIC DOMAIN CITE: KOURY

v.

LANIER EXPRESS, INC., 87-284 (LA. APP. 3 CIR. 5/18/88); 528 SO. 2D 734 APPELLATE PANEL:



Before this court can disturb an award made by the trial court, the record must clearly reveal that the trier of fact abused its discretion in making its award. Perniciaro v. Brinch, 384 So.2d 392 (La.1980); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). Only after making such a finding can the appellate court disturb the award, then only to raise inadequate awards to the lowest amount the trial court could have reasonably awarded, or lowering excessive awards to the highest amount the trial court could have reasonably awarded. Reck v. Stevens, 373 So.2d 498 (La.1979); Coco, supra; Freeman v. Harold Dickey Transport, Inc., 467 So.2d 194 (La.App. 3 Cir. 1985).

COURT OF APPEAL OF LOUISIANA, THIRD CIRCUIT

GLENNA L. KOURY individually and on behalf of JESSICA MAE

Domengeaux and Guidry, Judges, and Reggie,* Judge Pro Tempore.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REGGIE

The main issue presented by this appeal is whether or not the trial court's damage award was inadequate.

This is a tort action instituted by plaintiff, Glenna L. Koury, against the defendants, Robert Vergamini, his employer, Lanier Express, Inc., their liability insurer, Hanover Insurance Company, seeking recovery for physical, emotional, and psychological injuries that she sustained on October 5, 1984, when the vehicle in which she was a passenger was struck in the rear by a tractor-trailer owned by Lanier Express, Inc. and being driven by Mr. Vergamini for Lanier. At trial, defendants admitted liability for the accident but did not stipulate that plaintiff's alleged medical problems were in any way related to the accident.

After presentation of the evidence and testimony, the trial court took the matter under advisement. In written reasons for judgment assigned on January 6, 1987, the trial court awarded plaintiff the sum of $ 34,387.53, which represented $ 10,000.00 for plaintiff's psychological problems including future medical expenses therefor, $ 12,000.00 for ankle injuries, $ 2,000.00 for neck and/or back injuries, $ 1,500.00 for headaches, and $ 8,887.53 for past medical expenses. A judgment to that effect was signed on January 23, 1987. Plaintiff appeals complaining of an inadequate award of damages. We affirm.

FACTS

The facts upon which this suit is based are basically undisputed. The accident occurred at 12:26 A.M. on October 4, 1984, when Lawrence C. Hendricks was driving a school bus in which his girlfriend, Glenna L. Koury, their daughter, Jessica Mae Baker, and their friend, James Woods, were passengers. The bus was struck from behind by a tractor-trailer driven by Robert F. Vergamini. The impact of the collision caused the bus to roll over and then land approximately 378 feet from the point of impact. At the time of the accident, they were enroute to Texas where Woods had led them to believe that he had a job waiting for him and that he would attempt to also get a job for Hendricks once they arrived. The bus had been converted into a motor home and was equipped with a bed, kitchen appliances, and bathroom facilities.

Just prior to the accident, plaintiff was asleep in a bed located at the rear of the bus, with the baby asleep in a bassinet on the floor next to her. Her only recollection of the accident was seeing bright lights, hearing a loud noise, and feeling that they were flying. She was knocked unconscious and did not regain true consciousness until she awoke at the University Medical Center in Lafayette. Although she could not remember her actions during the aftermath of the accident, State Trooper Bernard, who investigated the accident, recalled that plaintiff was highly upset, panicky and crying hysterically because she was worried about her child. He also recalled that plaintiff had hurt one leg and was hopping around trying to locate her daughter. He stated the child was located and placed in the ambulance with her, which helped to calm her down.

After arrival at the University Medical Center in Lafayette, it was determined that plaintiff's ankle was broken and an operation was performed and a pin inserted. Plaintiff testified that she started experiencing pain in her ankle, back, neck, elbow and right knee during her stay in the hospital. She also remembered having stitches in the upper right corner of her forehead. After three days in the hospital, plaintiff was released and returned to Slidell, Louisiana. After returning to Slidell, plaintiff sought medical treatment from several medical providers for physical and emotional problems that manifested themselves shortly after the accident and initial treatment period.

On March 27, 1985, all four of the passengers of the bus filed suit against Mr. Vergamini, his employer, Lanier Express, Inc., and its insurer, Hanover Insurance Company. Plaintiff sought damages for psychological injuries, an ankle injury, bowel problems, neck and back pains, headaches, temple pains, abdominal pains, and deterioration of her eyes. She also maintained that she was entitled to loss of future wages because these injuries impaired her earning capacity. Prior to trial, all of the plaintiffs' claims were settled and their suits dismissed, except for those asserted by Mrs. Koury.

A trial on the matter was held on December 29, 1986. At the beginning of trial, the defendants stipulated to complete liability and that Hanover Insurance Company was the liability insurer for Lanier Express, Inc. and its employee, Mr. Vergamini, with liability limits up to $ 500,000.00 at the time of the accident. At trial they asserted that, with the exception of plaintiff's ankle injury, there was no causal connection between her alleged injuries and the accident.

Following trial, the matter was submitted for judgment. Reasons for judgment were assigned on January 6, 1987 and the judgment in conformity with the reasons for judgment was signed on January 23, 1987. In his written reasons for judgment, the trial judge itemized the general damage award as follows: $ 10,000.00 for plaintiff's psychological injuries and future psychiatric medical expenses; $ 12,000.00 for plaintiff's fractured ankle; no compensation was awarded for lost wages, bowel problems, abdominal pain, deterioration of the eyes and jaw and temple pain; $ 2,000.00 for plaintiff's cervical muscle strain; and $ 1,500.00 for headaches allegedly due to the accident. In addition to the general damages, the trial judge awarded $ 8,887.53 for past medical expenses., Plaintiff appeals from this judgment assigning the following errors:

(1) The trial court erred in rejecting the great weight of evidence provided by expert witness psychiatric and medical testimony, psychiatric and medical records and the testimony of Mrs. Koury and lay witnesses that Mrs. Koury had sustained a chronic disabling post traumatic stress disorder as a result of the accident;

(2) The trial court erred in rejecting the great weight of evidence provided by expert witness medical testimony, medical records, and the testimony of Mrs. Koury and Mr. Hendricks that Mrs. Koury had sustained severe, painful, disabling, and permanent injuries to her head, eyes, jaw, teeth, neck, right arm, back, abdomen, and left leg, ankle, and foot as a result of the accident.

QUANTUM

Plaintiff contends the general damage award of $ 25,500.00 constituted an abuse of discretion in light of the evidence presented at trial and should be raised to $ 150,000.00.

LSA-C.C. Art. 2324.1 provides:

"In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury."

A trial court's award may also be disturbed if it was based on a manifestly erroneous or clearly wrong finding of fact. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973). This principle is particularly applicable when it involves credibility of witnesses as does the present case. Dugas v. Mouton, 460 So.2d 739 (La.App. 3 Cir. 1984).

In addition, recent cases have held that the manifest error standard of appellate review should be applied even in cases such as the instant one in which the majority of the evidence before the court was submitted in the form of deposition and written reports. Virgil v. American Guarantee and Liability Insurance Co., 507 So.2d 825 (La.1987); Guaranty Bank & Trust Co. of Alexandria, La. v. Holiday Inn of Leesville Partnership, 525 So.2d 638 (La.App. 3rd Cir.1988). Therefore, we will refrain from disturbing the trial court's damage award absent a finding that it is manifestly erroneous or that there was a clear abuse of its discretion.

A. Damages for Post Traumatic Stress Disorder

At trial, plaintiff testified that several days after the accident she started having nightmares in which she experienced anew the trauma and events associated with the accident. She stated these reoccurred almost every night for several weeks following the accident. According to her testimony, she has continued to experience the nightmares; however, the frequency has diminished to two or three times a month. She described the nightmares as being typically the same; she dreams that she is inside the bus after the accident looking for Jessica, and finding the baby all cut up and bloody. She also reexperiences her feelings of being crushed.

In addition to the nightmares, other emotional problems have manifested themselves after the accident. Plaintiff testified that she becomes very anxious when she drives an automobile on the highway, especially when she notices an automobile following closely behind her. She further stated that she has become very withdrawn and very protective of Jessica. Plaintiff also testified that she has flashbacks, a fear of lights on the highway, and a fear of falling. A review of the deposition testimony submitted into evidence by the parties indicates that plaintiff was examined by numerous psychiatrists for these emotional and psychological problems that arose subsequent to the accident.

On April 19, 1985, plaintiff first saw Dr. Hiram G. Haynie, Jr., a psychiatrist at Slidell Mental Health and Substance Abuse Clinic. In deposition testimony, Dr. Haynie recalled that plaintiff complained of experiencing frequent nightmares wherein she experienced anew the entire accident, or at least fragments of the accident. She also told Dr. Haynie that in her dreams, she experiences a fear of discovering her daughter dead and, at that point, she would always wake up in a state of fright. She mentioned having thought at the time of the accident that her and her daughter were dying, or had died. He opined that the nightmares were, in part, a recall of these fears. Dr. Haynie also recalled plaintiff mentioning that her energy level had decreased, that she had become very irritable, was less outgoing, and had a decreased appetite. Plaintiff also indicated that she often started to cry without any reason, and did not get along with Mr. Hendricks since the accident. She described her relationship with Mr. Hendricks as unhappy because he had a serious alcohol problem, was not working regularly, and was not helpful around the house. She felt discouraged because of the lack of support from him. Dr. Haynie noted that plaintiff summarized her unhappy past life in detail up until the time she met Mr. Hendricks. The history she reported to Dr. Haynie and subsequent psychiatrists was identical to the testimony which she gave at trial.

In his review of the evidence pertaining to plaintiff's psychological injuries, the trial judge summarized the plaintiff's testimony regarding this ...


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