DARLEEN LEVY AND DARLEEN M. JACOBS, A PROFESSIONAL LAW CORPORATION
JESSICA A. LEWIS, STEAKHOUSE NEW ORLEANS L.L.C. MARYLAND CASUALTY COMPANY AND PROGRESSIVE SECURITY INSURANCE COMPANY
FROM CIVIL TRIAL COURT, ORLEANS PARISH NO. 2012-02546,
DIVISION "E" Honorable Clare Jupiter, Judge
Darleen M. Jacobs Hunter Harris Al Sarrat Rene Lovelace JACOB
SARRAT, LOVELACE & HARRIS COUNSEL FOR
E. Truitt Pamela Seeber Chehardy Amber L. Mitchell Peter M.
Gahagan THE TRUITT LAW FIRM, David A. Strauss Adam P. Massey
KING KREBS & JURGENS, PLLC, Joseph Maselli, Jr. Scott H.
Mason PLAUCHE MASELLI & PARKERSON L.L.P COUNSEL FOR
Kiefer, Jr. Megan C. Kiefer KIEFER & KIEFER COUNSEL FOR
composed of Judge Terri F. Love, Judge Roland L. Belsome,
Judge Madeleine M. Landrieu, Judge Rosemary Ledet, Judge
Levy and Darleen M. Jacobs, A Professional Law Corporation
(collectively, "Plaintiffs"), appeal the judgment
of the Orleans Parish Civil District Court dated January 29,
2016, rendering judgment in her favor against Jessica A.
Lewis, Steakhouse New Orleans, L.L.C.
("Steakhouse"), Maryland Casualty Company
("Maryland"), and Progressive Security Insurance
Company ("Progressive") (collectively, sometimes
referred to as, "Defendants").
reasons that follow, we reverse the judgment of the trial
court and remand this matter for a new trial.
AND PROCEDURAL HISTORY
16, 2011, at approximately 10:30 a.m., Darleen Levy was
operating her 2011 Lexus GS350 Sedan. While traveling in an
easterly direction on St. Charles Avenue, in the City of New
Orleans, Louisiana, her vehicle was struck from behind by a
2005 Chevrolet 1500 pick-up truck. The truck was owned by
Steakhouse New Orleans, LLC and being operated by its
employee, Jessica Lewis.
initial petition for damages was filed in Orleans Parish
Civil District Court on March 13, 2012. Plaintiffs
subsequently filed a first supplemental and amending
petition, naming Ms. Lewis, Steakhouse, Steakhouse's
insurance carrier, Maryland, and Ms. Levy's
Uninsured/Underinsured (UM/UIM) insurance carrier,
Progressive, as Defendants. Maryland and Progressive are both
16, 2013, Plaintiffs filed a second supplemental and amending
petition asserting a bad faith claim against Progressive as
Ms. Levy's UM/UIM carrier. On August 22, 2014,
Progressive filed a motion for partial summary judgment
seeking dismissal of Plaintiffs' bad faith claim, without
prejudice. On October 8, 2015, Progressive filed a supplement
to its request for relief seeking dismissal of
Plaintiffs' bad faith claim, with prejudice.
claimed multi-million dollar economic losses as supported by
Ms. Levy's federal income tax returns. Also included
within Ms. Levy's tax returns were references to her
income from other sources, referred to as "passive"
or "unearned" income. Plaintiffs filed a motion in
limine and supporting memorandum seeking to prohibit
Defendants from directly or indirectly presenting any
testimony, making any statements or argument, or introducing
any evidence concerning her passive income, specifically, her
real estate holdings, stock holdings or wealth. Defendants
October 16, 2015, the trial court held a hearing on the
various pre-trial motions filed by both Plaintiffs and
Defendants. In a Judgment dated November 9, 2015, the trial
court denied, in relevant part, Plaintiffs' motion in
limine to preclude references to her passive income. The
trial court also granted Progressive's motion for partial
summary judgment on Plaintiffs' bad faith claim, with
prejudice. Finally, the trial court denied the
Defendants' Daubert motion to strike
Plaintiffs' economic expert. It further ordered
Plaintiffs to provide to Defendants a calendar showing Ms.
Levy's trials for the two-year period prior to and all
years after the accident, as well as all settlements
Plaintiffs reached during the same time period.
application for supervisory writ, this Court reversed that
portion of the ruling dismissing the bad faith claim asserted
against Progressive, with prejudice. Levy, et al v.
Lewis, et al, 15-1303 (La.App. 4. Cir. 1/15/16).
trial on the merits proceeded on January 19, 2016. On January
29, 2016, the jury rendered its verdict, finding the
negligence of defendant, Jessica Lewis, to be the proximate
cause of Plaintiffs' injuries and damages. The jury
awarded Ms. Levy $30, 000 for physical pain and suffering,
past, present, and future; $10, 000 for mental anguish and
suffering, past, present, and future; $7, 500 for loss of
life's enjoyment, past, present, and future; and $14, 000
for past medical expenses, for a total of $61, 500. The jury
awarded no damages for permanent injuries and disability or
loss of income. The final judgment was signed February 25,
now appeal, alleging five assignments of error. In light of
our ultimate ruling, we address only a portion of assignment
of error number one, assignment of error number four, and a
portion of assignment of error number five. Progressive also
appeals, seeking amendment of the judgment insofar as it
failed to include judgment in its favor for $5, 000 made to
Ms. Levy in medical payments under her policy, despite her
failure to prove that her damages exceeded the limits of the
liability policy. Again, in light of our ruling, the latter
matter will need to be addressed on remand.
OF ERROR NO. 1
their first assignment of error, Plaintiffs argue that the
trial court erred in refusing to exclude certain evidence. In
part, Plaintiffs argue Ms. Levy did not allege nor was she
claiming a loss of passive, or "unearned, " income
as a result of the accident, and therefore, evidence of her
personal wealth and passive income was irrelevant to her
claim of loss of income from her work as an attorney.
challenging evidentiary rulings, Plaintiffs bear the burden
of showing that a "substantial right" was affected.
La. C.E. art. 103(A). Plaintiffs rely on Rodriguez v.
Traylor, 468 So.2d 1186, 1188 (La.1985), which held
"that the wealth or poverty of a party to a lawsuit is
not a proper consideration in the determination of
compensatory damages. Each litigant should stand equal in the
eyes of the law regardless of his financial standing."
Ms. Levy contends that all claims are for wages lost through
her inability to earn wages through her labor as an attorney,
and her passive income was irrelevant in light of
Rodriguez. Ms. Levy further argues that passive
income from investments is not considered "wages"
or "earned income" as a matter of law, noting that
this Court, in Iles v. Ogden, 09-0820, p. 3 (La.App.
4 Cir. 2/26/10), 37 So.3d 427, 432 n. 4, found passive income
to be "unearned" income.
respond that this issue is settled by the "law of the
case" doctrine as a result of this Court's previous
denial of Plaintiffs' supervisory writ raising the same
error. Levy, et al v. Lewis, et al, 15-1303 (La.App.
4. Cir. 1/15/16). However, this Court is not persuaded by
such an argument. "A denial of supervisory review is
merely a decision not to exercise the extraordinary powers of
supervisory jurisdiction, and it does not bar consideration
on the merits of the issue denied supervisory review, when
appeal is taken from final judgment." State v.
Fontenot, 550 So.2d 179, 179 (La.1989). "Thus, the
ruling denying supervisory writs does not bar reconsideration
of the issue on appeal and there reaching a different
conclusion as to it." Id.
additionally argue the evidence was admitted for permissible
purposes. Specifically, Defendants assert such evidence was
submitted to show that Ms. Levy continued to work as
vigorously after the accident as before, to include even work
unrelated to her law practice. Furthermore, Defendants submit
that there was never any mention of her specific wealth from
these sources, and that Plaintiffs failed to cite to any
portion of the transcript in which Defendants discussed her
passive income. Finally, Defendants assert that Ms. Levy
opened the door to the introduction of her passive income.
agree that evidence of an individual's passive income
which is not relevant to a claim of lost wages should not be
introduced to a jury. We find that the trial court's
reasoning in denying the motion in limine regarding passive
income unpersuasive; the trial court reasoned that "Ms.
Levy's ability to earn income from other businesses may
be probative of the extent to which the accident sued upon
affected her loss of earning capacity." In reaching this
conclusion, the trial court ignored the fact that Plaintiffs
were not alleging any loss other than as it pertains to her
ability or inability to practice law. Thus, any other passive
income was irrelevant and injected prejudicial error against
Defendants' assertions, the inclusion and/or the
introduction of passive income was first determined when the
trial court erroneously denied Plaintiffs' motion in
limine wherein they sought to exclude any and all
references/evidence of Plaintiffs' passive income.
Plaintiffs never made a loss of wage claim due to Ms.
Levy's passive income. Plaintiffs' loss of wage claim
arose exclusively from Ms. Levy's ability to earn wages
as an attorney. While Plaintiffs did indeed introduce Ms.
Levy's tax returns evincing her passive income, the trial
court's pre-trial ruling necessarily prevented Plaintiffs
from redacting the prejudicial information contained therein.
Thus, the trial court committed error in allowing references
and evidence of Plaintiffs' passive income to be
introduced to the jury.
Defendants made references to the introduction of
Plaintiffs' tax returns and W-2s during opening
statements. Such references required Plaintiffs' counsel
to address the issue on direct examination of Ms. Levy. The
jury would surely observe her passive income in her returns
and W-2s. Thus, it cannot be said that Plaintiffs opened the
door to this issue, when Defendants indicated their intent to
address Ms. Levy's passive income through pre-trial
motion practice and during opening statements.
on cross-examination, Defendants indeed inquired into the
passive income issue in the context of a post-accident
magazine article profiling Ms. Levy as a "Super
Lawyer." Counsel for Steakhouse asked whether she had
stated in the article that she had little spare time because
of her busy work schedule, due in part to her work as a real
estate broker and property manager and operator. Counsel
asked whether she still had a substantial interest in those
management companies, which she acknowledged. Counsel also
asked her whether she was involved in the development of a
"multimillion dollar" gas station project, which
she acknowledged, though disputing that it was indeed a
"multimillion dollar" project. Counsel for Ms. Levy
did not object at the time of the questioning, though Ms.
Levy did raise an objection on her own later in the
for Progressive also inquired as to Ms. Levy's non-legal
enterprises. She was asked whether she kept busy running
three business, to which she responded "I have people
that run [two of] them[, ]" meaning her non-legal
endeavors. Counsel pointed her to her deposition, in which
she stated "Isn't it enough businesses to run? Do
you want me to run another one?" Counsel then referred
to the tax returns Plaintiffs submitted into evidence, which
indicated her ownership of numerous rental properties.
Counsel also questioned Ms. Levy about losses on the
properties prior to the accident compared to gains after the
accident reflected in the tax returns, while, in
counsel's words, Ms. Levy was "overseeing or
running" those properties. Ms. Levy explained that many
of the properties had to be repaired after Hurricane Katrina,
which is why the gains were reflected in later years.
earning capacity and lost wages are distinguishable claims.
In Finnie v. Vallee, 620 So.2d 897, 900-01 (La.App.
4 Cir. 1993) (footnote omitted) this court stated:
Loss of earning capacity is not the same as lost wages.
Rather, earning capacity refers to a person's potential.
Earning capacity is not necessarily determined by actual
loss. While the plaintiff's earnings at the time of the
accident may be relevant, such figures are not necessarily
indicative of his past or future lost earning capacity. The
plaintiff need not be working or even in a certain profession
to recover this type of award. What is being compensated is
the plaintiff's lost ability to earn a certain amount,
and he may recover such damages even though he may never have
seen fit to take advantage of that capacity. Hobgood v.
Aucoin, 574 So.2d 344, 346 (La.1990). The trial court
should consider whether and how much the plaintiff's
current condition disadvantages him in the work force. The
trial court should thus ask itself what the plaintiff might
be able to have earned but for his injuries and what he may
now earn given his resulting condition.
trial court considered Ms. Levy's ability, or capacity,
to earn income generally as a basis to challenge her specific
claim of lost income as an attorney. Because Plaintiffs
sought only lost future income for Ms. Levy as an attorney,
the trial court erred in allowing Defendants to inquire as to
her passive income.
OF ERROR NO. 4
fourth assignment of error argues that the trial court erred
in granting Defendants' motion for a directed verdict
regarding future medical expenses. In support of this
argument, Plaintiffs cite Youn v. Mar. Overseas
Corp., 623 So.2d 1257, 1262 (La. 1993), which held:
In Stiles v. K-Mart Corp., 597 So.2d 1012 (La.1992),
plaintiff proved that he would require future medical
treatment, but did not present expert testimony as to the
cost of the treatment. The court of appeal deleted the trial
court's award for this item of damages, but this court
reinstated the award, noting:
When the record establishes that future medical expenses will
be necessary and inevitable, the court should not reject an
award of future medical expenses on the basis that the record
does not provide the exact value of the necessary expenses,
if the court can examine the record and determine from
evidence of past medical expenses and other evidence a
minimum amount that reasonable minds could not disagree will
be required. La.Code of Civ.Proc. art. 2164.
597 So.2d at 1013.
Levy testified that at the time of trial, she was seventy-one
years old. She explained that she was born with Von
Willebrand disease, a bleeding disorder that could render
surgery fatal. She acknowledged that she was rear-ended in a
prior motor vehicle accident in 1988, injuring her neck and
back. She unsuccessfully treated her injuries for months,
ultimately opting for surgery in 1990. She testified that as
a result of her Von Willebrand disease, she hemorrhaged,
blacked out, and was "out of it" for three days.
Ms. Levy claimed that after her surgery in 1990, she was in
good health and that her work was unaffected. Between 1990
and the 2011 accident, she claimed her only health issues
were kidney stones for a period, having her gall bladder
removed, and a 2001 knee surgery due to an exercising injury.
date of the accident, May 16, 2011, Ms. Levy stated she was
sitting in traffic when she was struck from behind. She said
her head hit the visor and her chest hit the steering wheel.
She also testified that her seat back collapsed and twisted
to such an extent that it had to be replaced. She said she
blacked out and thought she was having a heart attack. She
ultimately went to the emergency room for treatment.
testified that she began subsequent treatment a few days
after the accident with Dr. George Murphy, an experienced
physician board certified in orthopedic surgery, with whom
she treated up to trial. She complained of a "severe
headache, " and claimed her head was still red from
hitting her visor. She also claimed to be experiencing neck,
chest, and back pain. Dr. Murphy gave her medication and
referred her to other professionals for more specific
treatments and to explore other options, since he no longer
performed surgical procedures.
time of trial, Ms. Levy stated she experienced pain like a
"hot poker" going down her spine, and also felt
pain in both her legs and arms. She also testified to her
difficulty in making fists with her hands. She explained that
she takes a Medrol Dosepak every two months as well as
Celebrex to treat her pain. Her neurosurgeon, Dr. Rand
Voorhies, referred her to a Dr. Martinez, who gave her one
steroid injection. She also saw Dr. Daniel Lundgren, who
raised the option of a morphine pump to manage her pain.
However, Ms. Levy stated that she is allergic to morphine.
Levy did indeed testify that she wanted to get better and
wanted surgery for that purpose. However, she acknowledged
that Dr. Voorhies did not recommend any surgery due to her
Von Willebrand disease, as it would be too dangerous because
if she were to hemorrhage it could be fatal. She described