PAMELIA ELMER VILLA, ET AL.
GEICO CASUALTY INSURANCE CO., ET AL.
FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF
CALCASIEU, NO. 2014-396 HONORABLE DAVID ALEXANDER RITCHIE,
Paul Foreman William S. Joyner Raggio, Cappel, Chozen &
Berniard COUNSEL FOR DEFENDANT/APPELLANT: GEICO General
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
composed of Ulysses Gene Thibodeaux, Chief Judge, Billy
Howard Ezell, John E. Conery, D. Kent Savoie, Van H. Kyzar,
HOWARD EZELL JUDGE.
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.
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
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.
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.
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
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.
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
in this matter was signed on March 13, 2017. Ms. Villa, Ms.
Matte, and GEICO all appealed the judgment.
IMPROPER CLOSING ARGUMENT
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
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.
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.
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.
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
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.
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.
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
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 ...