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King v. National General Assurance Co.

Court of Appeals of Louisiana, Fifth Circuit

December 12, 2018

KAILEY KING
v.
NATIONAL GENERAL ASSURANCE COMPANY, ITS INSURED, ROBERT MONGRUE, RONALD HATCHER, HIS EMPLOYER, BON TEMPS LIMO, LLC, AND THEIR INSURER, NATIONAL LIABILITY & FIRE INSURANCE COMPANY

          ON 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. Donovan

          Panel composed of Judges Susan M. Chehardy, Hans J. Liljeberg, and John J. Molaison, Jr.

          HANS J. LILJEBERG JUDGE.

         In this 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, we affirm.

         FACTS AND PROCEDURAL HISTORY

         This 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.

         On 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.[1] 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 Robert Mongrue.[2]

         Liability 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.

         At 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 released.

         According 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.

         On 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.

         Ms. 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.

         Ms. 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.

         On 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.

         Ms. 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.

         Ms. 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.

         Two 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.

         Ms. 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 ...


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