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Kupke v. Shelter Insurance Co.

Court of Appeals of Louisiana, Third Circuit

July 11, 2018

WALTER KUPKE
v.
SHELTER INSURANCE COMPANY, ET AL.

          APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 2013-0833 HONORABLE EDWARD B. BROUSSARD, DISTRICT JUDGE

          David D. Benoit Justin R. Cantu Counsel for Plaintiff/Appellant: Walter Kupke

          Thomas R. Hightower, Jr. Wade Kee Thomas R. Hightower, III Law Offices of Thomas R. Hightower, Jr. Counsel for Defendant/Appellee: Shelter Mutual Insurance Company

          Court composed of Sylvia R. Cooks, Phyllis M. Keaty, and Van H. Kyzar, Judges.

          PHYLLIS M. KEATY JUDGE

         Following a jury trial, Plaintiff, Walter Kupke, was awarded $79, 455.80 in damages arising from an automobile accident, and the trial court signed a judgment awarding that amount plus legal interest and costs. Plaintiff now appeals the trial court's judgment. For the following reasons, we affirm the judgment.

         FACTS & PROCEDURAL HISTORY

         On November 30, 2012, Walter Kupke was in an automobile accident wherein he was rear-ended by a truck owned by Rader's Insulation Express, LLC, and operated by Jorge Silva. Following the initial impact, Kupke's vehicle was pushed into an intersection where it was struck by another vehicle. As a result, he sustained bodily injuries to his neck, back, shoulders, knee, and hand. Kupke filed suit against Silva, Rader's Insulation, and its insurer, Shelter Mutual Insurance Company (Shelter). He also filed suit against his uninsured/underinsured carrier, USAA Casualty Insurance Company. Thereafter, Rader's Insulation and Shelter stipulated to liability pursuant to a Stipulation and Consent Judgment. All Defendants were dismissed prior to trial except for Shelter.

         The matter proceeded to a jury trial which was held June 26-28, 2017, after which Kupke was awarded $79, 455.80 in damages as follows: $5, 000.00 for past physical pain and suffering; $12, 500.00 for future physical pain and suffering; $10, 000.00 for past mental anguish; $10, 000.00 for future mental anguish; $0.00 for loss of enjoyment of life; $16, 955.80 for past medical expenses; and $25, 000.00 for future medical expenses. On July 7, 2017, the trial court signed a judgment awarding that amount plus legal interest and costs. Kupke subsequently filed a Motion for Judgment Notwithstanding the Verdict, or In the Alternative Motion for Additur or Motion for New Trial, which the trial court denied following a hearing. Its written judgment was issued on September 15, 2017. Kupke thereafter appealed the July 7, 2017 judgment.

         On appeal, Kupke contends that the jury erred in failing to award him damages commensurate with the evidence adduced at trial.

         STANDARD OF REVIEW

         "It is well-settled that a judge or jury is given great discretion in its assessment of quantum, both general and special damages." Guillory v. Lee, 09-75, p. 14 (La. 6/2/09), 16 So.3d 1104, 1116; see also La.Civ.Code art. 2324.1. General damages are speculative in nature and incapable of being fixed with mathematical certainty. Thibeaux v. Trotter, 04-482 (La.App. 3 Cir. 9/29/04), 883 So.2d 1128, writ denied, 04-2692 (La. 2/18/05), 896 So.2d 31. "They include pain and suffering, physical impairment and disability, and loss of enjoyment of life." Id. at 1130. Although loss of enjoyment of life is a component of general damages, it is "conceptually distinct from other components of general damages, including pain and suffering." McGee v. A C & S, Inc., 05-1036, p. 5 (La. 7/10/06), 933 So.2d 770, 775. In the regard:

Pain and suffering, both physical and mental, refers to the pain, discomfort, inconvenience, anguish, and emotional trauma that accompanies an injury. Loss of enjoyment of life, in comparison, refers to detrimental alterations of the person's life or lifestyle or the person's inability to participate in the activities or pleasures of life that were formerly enjoyed prior to the injury. In contrast to pain and suffering, whether or not a plaintiff experiences a detrimental lifestyle change depends on both the nature and severity of the injury and the lifestyle of the plaintiff prior to the injury.

Id. On review of an award for general damages, an appellate court cannot decide what it considers to be an appropriate award. Guillory, 16 So.3d 1104. Rather, the appellate court reviews the trial court's exercise of its discretion. Id. An award of general damages "is reviewed pursuant to the abuse of discretion standard." Thibeaux, 883 So.2d at 1131. The plaintiff bears the burden of proving entitlement to general damages by a preponderance of the evidence. Schwartzberg v. Guillory, 16-753 (La.App. 1 Cir. 2/17/17), 213 So.3d 1266.

         On the other hand, special damages "may be determined with some degree of certainty and include past and future lost wages and past and future medical expenses." Thibeaux, 883 So.2d at 1130. A special damages' award is reviewed pursuant to the manifest error standard of review wherein an appellate court considers: 1) whether a reasonable basis exists for a trial court's conclusions and 2) whether that finding was clearly wrong. Thibeaux, 883 So.2d 1128; Guillory, 16 So.3d 1104. "The plaintiff bears the burden of proving entitlement to special damages by a preponderance of the evidence." Thibeaux, 883 So.2d at 1131.

         DISCUSSION

         In his assignment of error, Kupke contends that the jury erred in failing to award him damages commensurate with the evidence adduced at trial. He alleges that the accident caused him to sustain a minor traumatic brain injury (TBI), hearing loss, vertigo, anxiety, and depression, which will permanently impact his professional, social, physical, and mental wellbeing. Kupke opines that the jury's award is abusively low and merits an increase. According to Kupke, an award ranging from $20, 000.00 to $45, 000.00 would compensate him for the ten-month treatment of his headaches and the pain in his neck and left leg. He opines that $90, ...


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