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Fecke v. Board of Supervisors of Louisiana State University & Agricultural & Mechanical College

Court of Appeals of Louisiana, First Circuit

July 7, 2015

BRANDY LYNN FECKE, STEPHEN C. FECKE, AND KARENFECKE
v.
THE BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE

On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana No. C584652

John Neale deGravelles Baton Rouge, Louisiana Attorney for Plaintiffs/ Appellees, Brandy L. Fecke, Stephen C. Fecke, and Karen Fecke

James D. "Buddy" Caldwell Attorney General Patrick E. Henry Attorneys for Defendant/ Appellant, The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College Darrell J. Saltamachia John L. Dugas Special Assistant Attorneys General Baton Rouge, Louisiana and J. Elliott Baker Special Assistant Attorney General Covington, Louisiana

BEFORE: GUIDRY, THERIOT, AND DRAKE, JJ.

DRAKE, J.

The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College ("LSU Board") appeals a judgment on a jury verdict that awarded damages to the plaintiff for injuries she sustained in an indoor rock wall climbing accident. For the following reasons, we reverse and amend portions of the judgment and affirm as amended.

FACTS AND PROCEDURAL HISTORY

It is undisputed that on the evening of December 3, 2008, Brandy Lynn Fecke sustained injuries when she fell from a bouldering wall located at the LSU Recreation Center ("LSU UREC") indoor rock climbing wall facility. Ms. Fecke, then a 23-three-year-old senior at LSU, and a fellow classmate, Chad Culotta, visited the indoor rock climbing facility to complete a required assignment for an Outdoor Living Skills Activity course. The indoor rock climbing facility at the LSU UREC is housed in a remodeled racquetball court. LSU converted the court into the rock climbing wall facility, with three rock wall climbing options: (i) a 19' climbing wall; (ii) a 13' 1" bouldering wall located on the rear wall; (iii) and a 13' 1" bouldering wall located on a side wall.

After Ms. Fecke and Mr. Culotta paid for admission to enter the indoor rock climbing wall facility and received a receipt, the LSU UREC employees working the night of the accident signed Ms. Fecke and Mr. Culotta's course forms to verify their completion of the rock wall climbing assignment for their Outdoor Living Skills Activity course. Ms. Fecke also executed a Rock Climbing Wall Participation Agreement, which was provided to her by the LSU UREC employees. The student workers inquired into their previous experience with rock climbing. Ms. Fecke testified that she climbed a rock wall twice before - once when she was eight years old and a second time when she was ten years old. Ms. Fecke also testified that she had "top lined" previously, that is, that she knew about climbing a wall wearing a harness and using safety ropes, i.e., belay ropes. The employees proceeded to go through the instructions for the rock wall climbing experience. They explained to Ms. Fecke and her classmate that they could climb the 19' climbing wall with top ropes while wearing a harness, or they could climb one of the 13' 1" bouldering walls. Ms. Fecke wanted to climb the "easiest wall" and opted to climb the rear bouldering wall, which did not require her to wear a harness or climb with belay ropes. Bouldering is when a climber, with a partner standing behind the climber to act as a spotter in case the climber needs assistance, climbs up to a certain point on the wall and then traverses the wall side-to-side, in order to develop proficiency in climbing.

After instruction and a climbing demonstration by one of the employees, Ms. Fecke's classmate climbed up and then traversed down the wall. Ms. Fecke then climbed the wall. After reaching the top of the wall, Ms. Fecke began her descent; however, she got stuck while traversing down the wall and was unable to climb down any further. She lost her footing and hung from the wall. When she lost her grip after hanging for a few seconds, she let go of the wall and pushed herself away from the wall As she fell, Ms. Fecke twirled around, facing away from the wall. Ms. Fecke landed on her left foot and sustained multiple fractures to the talus bone in her left ankle, known as a comminuted talus fracture. Due to the severity of the fractures, Ms. Fecke underwent three surgeries and will require additional surgery, including either a permanent ankle fusion or an ankle replacement.

Ms. Fecke and her parents, Stephen and Karen Fecke, brought suit against the LSU Board for damages Ms. Fecke sustained as a result of the accident. Following a three-day jury trial, the jury returned a verdict in favor of Ms. Fecke, Karen Fecke, and Stephen Fecke and against the LSU Board, and awarded damages. The jury allocated 75% of the fault to the LSU Board and 25% of the fault to Ms. Fecke and awarded damages to Ms. Fecke as follows:

Physical Pain and Suffering, Past and Future:

$ 150, 000.00

Mental Pain and Suffering, Past and Future:

$ 125, 000.00

Loss of Enjoyment of Life:

$75, 000.00

Permanent Disability and Scarring:

$165, 000.00

Past Medical Expenses:

$60, 392.72

Fecke Future Medical Expenses:

$1, 000, 000.00

Loss of Future Earnings:

$350, 000.00

TOTAL:

$1, 925, 392.72

Additionally, the jury awarded damages to Karen Fecke as follows:

Loss of Consortium and Society:

$50, 000.00

The jury awarded no damages to Stephen Fecke for loss of consortium and society.

Six months later, the trial court signed a judgment on October 3, 2014, and after adjusting the jury's damage award based on the fault allocation, awarded damages to Ms. Fecke as follows:

Physical Pain and Suffering, Past and Future:

$112, 500.00

Mental Pain and Suffering, Past and Future:

$93, 750.00

Loss of Enjoyment of Life:

$56, 250.00

Permanent Disability and Scarring:

$123, 750.00

Past Medical Expenses:

$45, 294.54

Fecke Future Medical Expenses:

$750, 000.00

Loss of Future Earnings:

$262, 500.00

TOTAL:

$1, 444, 044.54

The trial court also awarded Ms. Fecke all costs of the proceedings plus 6.0% judicial interest from the date of judicial demand until paid, pursuant to La. R.S. 13:5112(C). Furthermore, the trial court ordered that after being reduced for attorney's fees and costs, Ms. Fecke's future medical care award of $750, 000 (plus judicial interest) be placed in a reversionary trust in accordance with La. R.S. 13:5106(B)(3)(c).[1] Additionally, the trial court awarded damages to Karen Fecke as follows:

Loss of Consortium and Society:

$37, 500.00

The trial court also awarded Karen Fecke all costs of the proceedings plus 6.0% judicial interest from the date of judicial demand until paid, pursuant to La. R.S. 13:5112(C). Finally, the trial court cast the LSU Board with all costs of court, including but not limited to, the expert witness fees as follows:

Dan Pervorse:

$3, 500.00

Dr. James Lalonde:

$1, 400.00

Dr. John F. Loupe:

$900.00

Stephanie Chalfin:

$1, 500.00

Harold Asher:

$3, 000.00

The LSU Board now appeals the October 3, 2014 final judgment of the trial court, assigning three errors to the trial court's application of the law pertinent to this case.

LAW AND DISCUSSION

Standard of Review

The appellate court's review of factual findings is governed by the manifest error/clearly wrong standard. The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court; and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987). Thus, if there is no reasonable factual basis in the record for the factfinder's finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a fact-finder's factual finding only if, after reviewing the record in its entirety, it determines the finding was clearly wrong. See Stobart v. State, through Dept. of Tramp. andDev., 617 So.2d 880, 882 (La. 1993).

A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. When such a prejudicial error of law skews the trial court's finding as to issues of material fact, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So.2d 731, 735. However, the above approach need not be considered when a jury has made some factual findings favorable to each party, and when the legal error affected only one of the findings, but does not interdict the entire fact-finding process. The appellate court should proceed to evaluate each jury finding pertinent to liability in order to determine the applicability of the manifest error rule to each. If only one of the jury's factual findings is tainted by the application of incorrect principles of law that are prejudicial, the appellate court's de novo review is limited to the jury finding so affected. Rideau v. State Farm Mut. Auto. Ins. Co., 06-0894 (La.App. 1 Cir. 8/29/07), 970 So.2d 564, 571, writ denied, 07-2228 (La. 1/11/08), 972 So.2d 1168.

Assignment of Error 1:

In the first assignment of error, the LSU Board contends the trial court erred by ordering that attorney's fees and costs were payable out of Ms. Fecke's damage award for her future medical care. The LSU Board further contends that the trial court erred by awarding Ms. Fecke interest on that award. Ms. Fecke counters that she is entitled by statute to receive interest on her future medical care damage award, and she further argues that the trial court is authorized by statute to award contractual attorney fees from that award prior to establishing the terms and provisions of a reversionary trust, which is to be created for her future medical care expenses. Thus, the first issue before this court is whether any interest, attorney's fees, or costs are due and collectible by Ms, Fecke and her attorneys on and out of her damage award against LSU for future medical care. As the facts in this matter are not in dispute and the issue on this assignment of error is purely one of the statutory interpretation of La. R.S. 13:5106, a section of the Louisiana Governmental Claims Act, this court will review the matter de novo, without deference to the legal conclusion of the trial court, and determine whether the error was prejudicial to the case. Turner v. Willis Knighton Med. Ctr., 12-0703 (La. 12/4/12), 108 So.3d 60, 62; Duzon v. Stallworth, 01-1187 (La.App. 1 Cir. 12/11/02), 866 So.2d 837, 861, writ denied sub nom., Duzon ex rel. Cmty. of Acquets & Gains v. Stallworth, 03-0589 (La. 5/2/03), 842 So.2d 1101, and writ denied, 03-0605 (La. 5/2/03), 842 So.2d 1110.

Suits against the State of Louisiana, a state agency, or a political subdivision must be brought pursuant to the Louisiana Governmental Claims Act, La. R.S. 13:5101-5113 ("Act"). The Act applies to any suit in contract or for injury to person or property. La. R.S. 13:5101(B)(1). Pursuant to the Act, the Legislature appropriates certain funds to pay claims against the State, its agencies, and political subdivisions. La. R.S. 13:5106(B)(1). The Act caps a claimant's damages for personal injury at $500, 000.00, exclusive of property damage, medical care and related benefits, loss of earnings, and loss of future earnings. La. R.S. 13:5106(B)(1).

When a trial court determines that a plaintiff in a suit for personal injury against the state or a state agency is entitled to medical care and related benefits[2] incurred subsequent to judgment, i.e. future medicals, the provisions of the Future Medical Care Fund ("FMCF"), La. R.S. 39:1533.2, apply to such cases. Louisiana Revised Statutes 13:5106(B)(3)(c) is the controlling statutory authority for personal injury claims against the state or a state agency:

In any suit for personal injury against the state or a state agency wherein the court pursuant to judgment determines that the claimant is entitled to medical care and related benefits that may be incurred subsequent to judgment, the court shall order that all medical care and related benefits incurred subsequent to judgment be paid from the Future Medical Care Fund as provided in R.S. 39:1533.2. Medical care and related benefits shall be paid directly to the provider as they are incurred. Nothing in this Subparagraph shall be construed to prevent the parties from entering into a settlement or compromise at any time whereby medical care and related benefits shall be provided but with the requirement that they shall be paid in accordance with this Subparagraph. [Emphasis added.]

The FMCF is administered by the Office of Risk Management, through the Treasurer of the State of Louisiana. La. R.S. 39:1533.2(B).

In contrast, when a trial court determines that a plaintiff in a suit for personal injury against a political subdivision is entitled to medical care and related benefits incurred subsequent to judgment, a reversionary trust is established for the benefit of the plaintiff and all future medical care is paid pursuant to the reversionary trust instrument. Louisiana Revised Statutes 13:5106(B)(3)(a)[3] is the controlling statutory authority for personal injury claims against political subdivisions:

In any suit for personal injury against a political subdivision wherein the court, pursuant to judgment, determines that the claimant is entitled to medical care and related benefits that may be incurred subsequent to judgment, the court shall order that a reversionary trust be established for the benefit of the claimant and that all medical care and related benefits incurred subsequent to judgment be paid pursuant to the reversionary trust instrument. The reversionary trust instrument shall provide that such medical care and related benefits be paid directly to the provider as they are incurred. Nothing in this Paragraph shall be construed to prevent the parties from entering into a settlement or compromise at any time whereby medical care and related benefits shall be provided, but with the requirement of establishing a reversionary trust. [Emphasis added.]

The Act does not limit the rights of a claimant to contract with respect to attorney's fees and costs when the claimant's future medical care is paid from a reversionary trust established by a political subdivision for that claimant's future medical care. As provided for in Louisiana Revised Statutes 13:5106(D)(3):

"Reversionary trust" means a trust established by a political subdivision for the exclusive benefit of the claimant to pay the medical care and related benefits as they accrue, including without limitation reasonable and necessary amounts for all diagnosis, cure, mitigation, or treatment of any disease or condition from which the injured person suffers as a result of the injuries, and the sequelae thereof, sustained by the claimant on the date the injury was sustained. The trustee shall have the same fiduciary duties as imposed upon a trustee by the Louisiana Trust Code. Nothing herein shall limit the rights of claimants to contract with respect to attorney fees and costs. [Emphasis added.]

To ascertain which of the Act's provisions regarding damage awards apply to Ms. Fecke's case - either the provision applicable to an award against the state or a state agency, La. R.S. 13:5106(B)(3)(c), or the provision applicable to damage awards against a political subdivision, La. R.S. 13:5106(B)(3)(a) - this court must determine whether the LSU Board is classified as the "state or a state agency" or as a "political subdivision." The Act defines a "state agency" as "any board, commission, department, agency, special district, authority, or other entity of the state." La. R.S. 13:5102(A). The Act defines a "political subdivision" as "[a]ny parish, municipality, special district, school board, sheriff, public board, institution, department, commission, district, corporation, agency, authority, or an agency or subdivision of any of these, and other public or governmental body of any kind which is not a state agency." La. R.S. 13:5102(B)(1).

The starting point in the interpretation of any statute is the language of the statute itself. Whitley v. State ex rel. Bd. of Supervisors of Louisiana State Univ. Agr. Meek College, 11-0040 (La. 7/1/11), 66 So.3d 470, 474. When the wording of a section of the revised statutes is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit. La. C.C. art. 9; La. R.S. 1:4. "Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language." La. R.S. 1:3. Based on the clear language of La. R.S. 13:5102(A) and (B), the LSU Board is a state agency.[4] Because the LSU Board is a state agency, the Act's provision applicable to awards for future medical care against the state or a state agency -La. R.S. 13:5106(B)(3)(c) - applies to the instant case. Thus, the trial court legally erred in applying La. R.S. 13:5106(B)(3)(a) to this case. That legal error became prejudicial when the trial court rendered judgment on the jury's verdict and ordered that Ms. Fecke's damage award for her future medical care be placed in a reversionary trust, which the trial court referred to as a "Future Medical Care Trust."[5] We therefore amend the portion of the trial court's October 3, 2014 final judgment that refers to a "Future Medical Care Trust" to refer to the "Future Medical Care Fund."

In addition to its argument that the trial court legally erred in establishing a reversionary trust for Ms. Fecke's future medical care instead of ordering that those benefits be paid from the FMCF, the LSU Board further contends that the trial court legally erred when it (i) ordered that costs and judicial interest be paid out of and earned on Ms. Fecke's damage award for future medicals, and (ii) ...


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