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Levy v. Lewis

Court of Appeals of Louisiana, Fourth Circuit

May 17, 2017


         APPEAL FROM CIVIL TRIAL COURT, ORLEANS PARISH NO. 2012-02546, DIVISION "E" Honorable Clare Jupiter, Judge


          Jack 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 DEFENDANTS-APPELLEES


          (Court composed of Judge Terri F. Love, Judge Roland L. Belsome, Judge Madeleine M. Landrieu, Judge Rosemary Ledet, Judge Regina Bartholomew-Woods)

          Regina Bartholomew-Woods Judge

         Darleen 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").

         For the reasons that follow, we reverse the judgment of the trial court and remand this matter for a new trial.


         On May 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.

         Plaintiffs' 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 foreign corporations.

         On May 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.

         Plaintiffs 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 opposed.

         On 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.

         On 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).

         A jury 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, 2016.

         Plaintiffs 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.



         In 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.

         In 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.

         Defendants 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.

         Defendants 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.

         We 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 the Plaintiffs.

         Despite 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.

         Furthermore, 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.

         Moreover, 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 proceedings.

         Counsel 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.

         Loss of 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.

         The 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.


         Plaintiffs' 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.

         Ms. 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.

         On the 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.

         She 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.

         At the 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.

         Ms. 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 the ...

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