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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 ...


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