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Neal v. Wascom

Court of Appeals of Louisiana, First Circuit

April 12, 2017


         On Appeal from the Twenty-First Judicial District Court In and for the Parish of Livingston State of Louisiana Trial Court No. 146, 878, Div. F The Honorable Elizabeth Wolfe, Judge Presiding

          James M. Dill Lafayette, Louisiana Attorney for Appellants Defendants -Justin Wascom, Jr. and Hallmark Specialty Insurance Company

          Mark D. Plaisance Thibodaux, Louisiana Attorney for Appellee Plaintiff -Evette Neal


          CALLOWAY, J.

         In this personal injury case, the defendants challenge the general damages awarded by the trial court to the plaintiff following a bench trial.


         This case involves a traffic accident that occurred on December 9, 2013, when the Ford F-250, operated by the defendant, Justin Wascom, Jr., owned by his employer, Clean Water Opportunities, Inc. ("Clean Water"), [2] and insured by Hallmark Specialty Insurance Company ("Hallmark Insurance"), rear-ended the Jeep Liberty owned and operated by the plaintiff, Evette Neal.[3] Mr. Wascom was driving the Ford F-250 eastbound on Interstate 12 in Livingston Parish when he rear-ended Ms. Neal's Jeep, causing her vehicle to hit the side concrete wall, leave the roadway, flip over, hit a tree, and come to rest in a canal.

         Ms. Neal filed the instant suit against Mr. Wascom, Clean Water, and Hallmark Insurance, seeking damages for injuries to her neck, back, head, shoulders, legs, chest, sternoclavicular ("SC") joint, collarbone, hands, and fingers allegedly sustained as a result of the automobile accident. A bench trial was conducted on March 15, 2016, on the issue of damages.[4] At trial, the parties stipulated to liability and insurance coverage, that Ms. Neal's medical expenses totaled $27, 834.00, and that her lost wages totaled $4, 576.00. Following trial, the trial court signed a final judgment on April 1, 2016, in favor of Ms. Neal and against Mr. Wascom and Hallmark Insurance in solido, awarding Ms. Neal: $700, 000.00 in general damages; $27, 800.34 in past medical expenses; $21, 000.00 in future medicals for S.C. injections; $5, 600.00 in future medicals for acromioclavicular ("AC")[5] injections; $426.79 for certified medical records and bills; $4, 576.00 in lost wages; legal interest from the date of judicial demand until paid; all costs of the proceedings; a $5, 000.00 expert witness fee; and dismissed all of Ms. Neal's claims against Clean Water, with prejudice.

         Mr. Wascom and Hallmark Insurance now appeal, assigning error to the amount of general damages awarded to the plaintiff.


         The defendants argue the trial court abused its discretion in awarding Ms. Neal $700, 000.00 for a partially dislocated S.C. joint, a strained shoulder, a strained neck, and a strained back. The defendants assert the accident merely aggravated Ms. Neal's preexisting neck and shoulder injuries, that she only missed one month of work, and that she now has full range of motion in her shoulder and arm.

         "General damages" involve mental or physical pain or suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle that cannot be measured definitively in terms of money. Boudreaux v. Farmer, 604 So.2d 641, 654 (La.App. 1 Cir.), writs denied, 605 So.2d 1373, 1374 (La. 1992). The primary objective of general damages is to restore the party in as near a fashion as possible to the state he was in at the time immediately preceding injury. Daigle v. U.S. Fidelity and Guar. Ins. Co., 94-0304 (La.App. 1 Cir. 5/5/95), 655 So.2d 431, 437.

         Vast discretion is accorded the trier of fact in fixing general damage awards. La. C.C. art. 2324.1; Hollenbeck v. Oceaneering Int., Inc., 96-0377 (La.App. 1 Cir. 11/8/96), 685 So.2d 163, 172, writ denied, 97-0493 (La. 4/4/97), 692 So.2d 421. The discretion vested in the trier of fact is "great, " even vast, so that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La. 1993), cert, denied,510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). The role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award but, rather, to review the exercise of discretion by the trier of fact. Wainwright v. Fontenot, 2000-0492 (La. 10/17/00), 774 So.2d 70, 74. Before an appellate court can disturb the quantum of an award, the record must clearly reveal that the trier of fact abused its discretion. In order to make this determination, the reviewing court looks first to the individual circumstances of the injured plaintiff. Theriot v. Allstate Ins. Co.,625 So.2d 1337, 1340 (La. 1993). Reasonable persons frequently disagree about the measure of general damages in a particular case. Youn, 623 So.2d ...

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