APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 759-730, DIVISION
"K" HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, KAILEY KING Sherry A. King
COUNSEL FOR DEFENDANT/APPELLEE, NATIONAL GENERAL ASSURANCE
COMPANY AND ROBERT MONGRUE James L. Donovan, Jr. P. M.
composed of Judges Susan M. Chehardy, Hans J. Liljeberg, and
John J. Molaison, Jr.
J. LILJEBERG JUDGE.
personal injury case, plaintiff appeals the trial court's
award of general and special damages, arguing that both are
abusively low and should be increased. Defendants have
answered the appeal, asserting that the damages awarded were
excessive and should be reduced. For the following reasons,
AND PROCEDURAL HISTORY
case arises from a motor vehicle accident that occurred on
April 25, 2015, on westbound Interstate 10 in Kenner,
Louisiana. Plaintiff, Kailey King, was riding as a guest
passenger in a van, referred to as a "limo bus," on
the way to her senior prom when the van was struck from
behind by a vehicle driven by Robert Mongrue and insured by
National General Assurance Company ("National"). On
April 7, 2016, plaintiff filed suit against Mr. Mongrue,
National, and others, asserting that she suffered personal
injuries in the accident. In her petition, she sought damages
for physical and mental pain and suffering, disability,
medical expenses, loss of earning capacity, loss of
consortium, and any other damages allowed by law.
August 14, 2017, Ms. King filed a Motion for Partial Summary
Judgment, seeking a determination that Mr. Mongrue was solely
at fault for the accident. After a hearing on September 13, 2017,
the trial court granted the motion, finding that the sole and
legal cause of the accident sued upon was the actions of
having been determined, the matter came before the court on
October 23, 2017, for trial on the issue of the damages, if
any, caused by this accident. Ms. King acknowledged that she
was injured in a prior accident just months before this
accident, and she suffered injuries to her back which were
not resolved at the time of this accident. However, she
asserted that the second accident aggravated or exacerbated
her prior back injuries, and she claimed that she suffered
new injuries to her neck and right hand numbness.
trial, Kailey King testified that on October 17, 2014, she
was on a college tour of Louisiana State University when she
was involved in an accident on campus ("the LSU
accident"). According to Ms. King, she and her mother
were in a golf cart during the tour when the driver hit a
parked car. Ms. King testified that she was ejected from the
golf cart and her body hit an "SUV," causing her to
suffer injuries to her back and shoulder, broken ribs, and a
scalp laceration. Ms. King was treated at a hospital and
to Ms. King, she went to Children's Hospital a few days
later, where it was determined that she had compression
fractures in her thoracic spine. She was provided with a back
brace that was molded to fit her body and told to wear it at
all times for four weeks. She also attended ten weeks of
physical therapy and was prescribed Lortab for pain. Ms. King
testified that she had trouble focusing and concentrating
after the LSU accident, and she could not regularly attend
school. According to Ms. King, in April of 2015, she
completed her physical therapy, started to feel better, and
returned to school three days per week. However, she was not
completely well and continued to take Lortab.
April 25, 2015, the second accident occurred, which is the
accident at issue in this litigation. Ms. King's mother
arranged for a "limo bus" to take Ms. King and her
friends to their senior prom that night. According to Ms.
King, she took Lortab in order to feel well enough to go that
night, because she was still in pain from the LSU accident.
They went in the bus to a restaurant in Metairie, and then
proceeded to go to the prom in Pontchatoula. While they were
in Kenner on Interstate 10 westbound, they were struck from
behind by Mr. Mongrue's vehicle. After this accident, Ms.
King did not go to a hospital. She went to the prom and her
mother brought her more Lortab.
King testified that her neck began hurting after this
accident, her back pain increased, and she began experiencing
numbness in her right hand. She acknowledged telling the
police officer at the scene that she was not injured, but she
believes she was unaware of her injuries due to the Lortab
she had taken that night. Ms. King subsequently went back to
Children's Hospital and was provided with a new back
brace. Although she admitted that she was diagnosed with
depression and anxiety prior to the second accident, Ms. King
stated that she began taking medication for depression and
anxiety after the second accident. Ms. King stated that she
felt "horrible" about having to wear another back
brace, her senior prom was ruined, and she had to miss senior
activities due to the pain caused by the second accident.
King testified that she would like to have physical therapy
again and "trigger point injections" in her back,
but she cannot afford these treatments, as they are not
covered by her health insurance. She also testified that she
would like to have a job, but she cannot work due to her pain
and cannot drive due to her pain medication.
cross-examination, defendants' counsel elicited testimony
about Ms. King's travels after the accidents. According
to Ms. King, in February of 2015, after the LSU accident but
before the second accident, she was in constant pain.
However, she admitted that she was able to ride in a car to
Tampa, Florida in December of 2014, and she was able to
attend a school dance and ride to Disney World in a car in
February of 2015. She stated that she was only able to travel
because she was on Lortab. Although her physical therapy
records indicate that she had increased pain from walking at
Disney World, she testified that she used a wheelchair. She
also went to Disney World after the second accident in May of
2015 and again in July of 2015. Although the pictures from
Disney World did not show Ms. King in a wheelchair, she
testified that she did not want to take pictures in a
wheelchair because it was embarrassing. Ms. King also flew to
Chicago in the summer of 2015 for a Taylor Swift concert, to
New York during Mardi Gras vacation in 2016, and to St. Louis
during the summer of 2016.
King testified that it was her dream to participate in the
Disney college program and to pursue a career in marketing at
Disney World. She went to Disney World to audition in October
of 2016 and was accepted to the program. However, after three
days "on the job," she had to quit because she
could not fulfill the job responsibilities due to her pain.
She stated that she would have been paid $10 per hour if she
had been able to participate in the Disney program.
King was deposed on August 3, 2016, in connection with
litigation pertaining to the LSU accident. In this
deposition, she stated that her ribs and back were
"instantly" hurt when the second accident occurred,
but she did not mention any neck pain. She also stated that
the anxiety and depression she suffered after the LSU
accident was not worse after the second accident. However, at
trial, she testified that her anxiety and depression had, in
fact, increased after the second accident. In her deposition,
she testified that after the second accident, she had x-rays
taken, was told that her prior injuries were
"reaggravated," and received another back brace,
which she wore for four weeks. However, at trial, she
testified that she subsequently learned that her injuries
were worse when she had an MRI in September of 2016.
days after the second accident, April 27, 2015, Ms. King saw
her pediatrician, Dr. Nicholas Danna, for pain due to the
accident and an ADHD consultation. Dr. Danna's
deposition, which was taken on September 20, 2017, was
admitted into evidence in lieu of live testimony. In his
deposition, Dr. Danna stated that he examined Ms. King's
neck at the April 27, 2015 visit, and there were no physical
findings or abnormalities. She reported neck pain, but Dr.
Danna agreed that he has to rely on a patient's
truthfulness regarding subjective complaints. He also saw Ms.
King on May 15, 2015, and she reported that she was having
anxiety and that she feared riding in cars. He also saw Ms.
King on June 10, 2015, but she did not complain of neck or
back pain, just a sore throat.
King did not have any doctor visits for neck or back pain
from May of 2015 until May 25, 2016. Ms. King explained that
she did not see a doctor during this time because her mother
had neck surgery and could not drive her, and ...