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Villa v. Geico Casualty Insurance Co.

Court of Appeals of Louisiana, Third Circuit

February 15, 2018

PAMELIA ELMER VILLA, ET AL.
v.
GEICO CASUALTY INSURANCE CO., ET AL.

         APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2014-396 HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE

          L. Paul Foreman William S. Joyner Raggio, Cappel, Chozen & Berniard COUNSEL FOR DEFENDANT/APPELLANT: GEICO General Insurance Company

          Stephen R. Barry K.E. Libby Heinen Barry & Company, LLC COUNSEL FOR DEFENDANT/APPELLANT: Marie Matte

          Russell J. Stutes, Jr. Jody Lavergne Jeanette Dewitt-Kyle Stutes & Lavergne, L.L.C. COUNSEL FOR PLAINTIFF/APPELLANT: Pamelia Elmer Villa

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, John E. Conery, D. Kent Savoie, Van H. Kyzar, Judges.

          BILLY HOWARD EZELL JUDGE.

         Pamela Villa appeals a trial court judgment awarding her damages for injuries she sustained in an automobile accident. On appeal, she claims that the jury's award of damages was inadequate. She also claims that the trial court erred in failing to take corrective action because defense counsel violated a stipulation and argued to the jury that Defendant, Marie Matte, would have to personally pay the judgment.

         Defendants, Ms. Matte and GEICO General Insurance Company, also appealed the trial court judgment. Ms. Matte claims the trial court erred in allowing Ms. Villa to assert a lost wage claim and in allowing an optometrist to testify regarding her need for surgery.

         GEICO claims that the trial court erred in interpreting La.R.S. 22:1266 to impose a burden of proving delivery of notices of cancellation for nonpayment when proof of mailing is established and the effective date of cancellation is more than ten days after the date of mailing.

         FACTS

         On December 10, 2013, Ms. Villa was injured when her vehicle was struck by a vehicle driven by Ms. Matte, who ran a stop sign. She was transferred to Lake Charles Memorial Hospital by ambulance. Upon admission to the emergency room, Ms. Villa was treated by Dr. Thomas Axelrad. According to medical testimony and records, Ms. Villa suffered a head injury, worsening of neck pain, a displaced sternum fracture with three rib fractures, three herniated lumbar discs, a large hematoma on her right hip, a sprain of the left knee, a sprain and cartilage loss in the right knee, an avulsion fracture of her left ankle, and bruising and swelling of the right ankle. Additionally, Ms. Villa claimed that the deployment of the air bag, which hit her in the face, caused the lens implant in her right eye to shift, necessitating the need for surgery to replace the lens.

         Ms. Villa was hospitalized for four days, where she was placed on a Foley catheter and given Morphine for pain. Dr. Axelrad testified that Dilaudid was later prescribed to Ms. Villa because her pain was so intense. Upon her release from the hospital, Ms. Villa slept in a recliner at her house. Ms. Villa was dependent on others to take care of her, her house, and her yard. Three months after the accident, Ms. Villa returned to work at her family's business, Elmer's Radiator Shop.

         Ms. Villa filed suit against Ms. Matte and GEICO on February 11, 2014. A trial before a jury on the issue of damages was held on December 5-7, 2016. The jury found that Ms. Villa suffered damages as a result of the accident and awarded damages in the following amounts: 1) $32, 500.00 for past and future pain and suffering; 2) $4, 000.00 for past and future mental anguish; 3) $1, 000.00 for past and future loss of enjoyment of life; 4) $45, 740.00 for medical expenses; and 5) $6, 480.00 for lost wages.

         On December 8, 2016, a bench trial was held on the issue of whether GEICO provided coverage to Ms. Matte for the accident at issue. Following trial on the issue, the trial court ruled that that even though there was sufficient evidence that GEICO mailed notice of cancellation, GEICO failed to provide the requisite ten-day notice as required by the law. Therefore, the policy issued by GEICO provided coverage for this accident.

         Judgment in this matter was signed on March 13, 2017. Ms. Villa, Ms. Matte, and GEICO all appealed the judgment.

          IMPROPER CLOSING ARGUMENT

         In her first assignment of error, Ms. Villa argues that Ms. Matte's counsel improperly referred to a personal judgment against Ms. Matte and her inability to pay it when the parties stipulated in open court that no one was allowed to suggest to the jury that Ms. Matte would have to personally pay the judgment. Ms. Villa argues that the impact of this argument was prejudicial, which the trial court failed to correct after her counsel objected. Ms. Villa argues that this requires us to review the jury's award using a de novo standard. Ms. Villa cites Rodriguez v. Taylor, 468 So.2d 1186 (La. 1985), for the proposition that a defendant cannot argue the inability to pay as an excuse to avoid full accountability in a personal injury case.

         The trial court has great discretion in regulating and controlling the opening and closing arguments to a jury within proper bounds, and its rulings will not be reversed unless they constitute an abuse of discretion. Melancon v. Lafayette Ins. Co., 05-762 (La.App. 3 Cir. 3/29/06), 926 So.2d 693, writs denied, 06-974, 06-1006 (La. 6/16/06), 929 So.2d 1291, 1293. "[I]mproper statements by counsel must have influenced the jury and contributed to its verdict to constitute reversible error." Id. at 706.

         Prior to trial, the parties discussed some housekeeping matters. Both attorneys agreed that there would be no mention that there was or was not insurance coverage. In closing argument, Ms. Matte's counsel stated: "[W]hat was that number he put up there, $300, 000. Because they don't want you to add it all up. When you add it all up, that is an astronomical amount of money to ask Ms. Matte to pay for this." At this point, counsel for Ms. Villa objected.

         Although this remark does not specifically refer to Ms. Matte's ability to pay a judgment, it comes very close. It infers that the amount of damage requested is a lot for Ms. Matte to personally pay as opposed to being a large amount of money in damages based on the injuries Ms. Villa received in the accident. We agree with the trial court that this remark was not prejudicial enough at this point to admonish the jury. The trial court did admonish counsel to watch his statements in the future. We find no abuse of discretion in the trial court's failure to admonish the jury.

         EXPERT TESTIMONY

         We will next address Ms. Matte's argument on appeal that the trial court erred in allowing Ms. Villa's optometrist to testify regarding her need for cataract revision surgery. The lens transplant surgery was performed by Dr. Charles Thompson, an ophthalmologist. As an optometrist, Dr. Keith Menard is not qualified to perform this surgery. Therefore, Ms. Matte argues Dr. Menard should not have been allowed to testify in lieu of Dr. Thompson regarding Ms. Villa's need for lens replacement surgery as a result of the accident.

         In determining whether to allow a witness to testify as an expert, the trial court is afforded wide discretion, and its determination will not be disturbed on appeal unless clearly wrong. Marshall v. Boydston, 09-1137 (La.App. 3 Cir. 3/17/10), 33 So.3d 438, writ denied, 10-881 (La. 6/25/10), 38 So.3d 339. If "scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue", a witness "qualified as an expert by knowledge, skill, experience, training, or education may testify [thereto] in the form of an opinion or otherwise." Id., at 443 (quoting La.Code Evid. art. 702). Generally, the fact that a medical doctor is not a specialist in a medical field does not affect the admissibility of his testimony but only applies to the effect or the weight be given to such testimony. Marshall, 33 So.3d 438; See also Sattler v. Hammond, 93-1227 (La.App. 3 Cir. 5/4/94), 640 So.2d 570, writ denied, 94-1418 (La. 9/16/94), 642 So.2d 198.

         Dr. Menard testified that an optometrist's primary job is to assess the visual and health status of a patient's eye and manage and treat that visual health status in whatever way is deemed necessary, including recommending procedures and giving referrals for consults for the procedures. On cross-examination about his qualifications, the jury heard that while Dr. Menard can make a decision that a patient needs surgery, Dr. Menard agreed that he is not allowed to perform the type of surgery Ms. Villa required.

         After qualifying as an expert optometrist, Dr. Menard explained to the jury that he first started treating Ms. Villa in April 2011. Her history indicated that she had a cataract exchange intraocular lens implant in her right eye in 2009. The lens implant did not attach well and stay centered. As a result, she developed some chronic inflammation. Dr. Menard testified that he had control of the situation with eye drops so that Ms. Villa had little-to-no inflammation or problems with pressure. He last saw her in July 2013 before the December 2013 accident.

         After the accident, Dr. Menard next saw Ms. Villa in July 2014. At that time, Ms. Villa had the same problem in her right eye, just a more escalated version of it; more inflammation, more light sensitivity, and more pressure problems. Dr. Menard testified that even with very aggressive treatment, it was impossible to get the same level of control he had before. Dr. Menard also observed fresh bleeding in the eye causing him to opine that something new had happened and the lens had shifted even further. It was his opinion that Ms. Villa's new issues were caused by the facial trauma she ...


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