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Wendel v. Travelers Ins. Co.

Court of Appeals of Louisiana, Fourth Circuit

October 8, 2014

KEVIN WENDEL AND HIS WIFE, VICKIE WENDEL, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF THEIR MINOR CHILDREN LAINE AND CHLOE WENDEL
v.
TRAVELERS INSURANCE COMPANY, TERRELL GILBERT AND ALLSTATE INSURANCE COMPANY

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[Copyrighted Material Omitted]

Page 830

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2009-09743, DIVISION " A" . Honorable Tiffany G. Chase, Judge.

ROBERT L. MANARD, III, WENDY E. MANARD, ROBERT L. MANARD, PLC, New Orleans, LA, COUNSEL FOR PLAINTIFF/APPELLEE.

MINDY BRICKMAN, CARA E. HALL, MCGLINCHEY STAFFORD, PLLC, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLANT.

(Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins). DYSART, J., CONCURS IN PART AND DISSENTS IN PART.

OPINION

SANDRA CABRINA JENKINS JUDGE.

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[2014-0002 La.App. 4 Cir. 1] This is a 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 Wingfoot 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 [2014-0002 La.App. 4 Cir. 2] injuries, which required epidural injections. Plaintiff's surgical 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 Wingfoot 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 plaintiff's wife's and children's claims for loss of consortium. The trial judge granted the motion on behalf of plaintiff's 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:

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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.

[2014-0002 La.App. 4 Cir. 3] DISCUSSION

On appeal, defendants assign two errors: (1) the trial court erred in denying defendants' motion for directed verdict on plaintiff's daughters' claims for loss of consortium; and (2) the trial court's awards for past lost wages and 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.[1] However, plaintiff answered the appeal and only assigned two errors: (1) the trial court's awards for general and special damages are inadequate and must be increased; and (2) the trial court erred in granting defendants' ...


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