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Enriquez v. Safeway Insurance Company of Louisiana

Court of Appeals of Louisiana, Second Circuit

January 16, 2019


          Appealed from the Fifth Judicial District Court for the Parish of Richland, Louisiana Trial Court No. 45, 426-C Honorable Stephen G. Dean, Judge.

          W. BRETT CAIN Counsel for Appellant

          ANTHONY J. BRUSCATO Counsel for Appellees

          Before WILLIAMS, GARRETT, and STONE, JJ.

          GARRETT, J.

         The defendant, Safeway Insurance Company of Louisiana ("Safeway"), appeals from a trial court judgment awarding damages for loss of use, inconvenience, and mental anguish to the plaintiffs, Jose R. Enriquez and Irma Enriquez, caused by a car crashing into their house. For the following reasons, we affirm in part, amend in part, and reverse in part the trial court judgment.


         The plaintiffs, residents of Delhi, Louisiana, were in the master bedroom in the back of their home at approximately 7:40 a.m. on the morning of June 4, 2016. Suddenly, a 2000 Lincoln Town Car driven by DuJuan Johnson ("DuJuan") crashed into the two front bedrooms of the house. DuJuan stated the brakes failed while he was backing up. The back of the car impacted the front of the house, crashing into the interior, causing extensive damage.

         The car was owned by Demonte Johnson and insured by Safeway. Although initially disputed, it was eventually determined that DuJuan was using the vehicle with permission and the accident was covered under the Safeway policy.

         The plaintiffs had a homeowners' insurance policy with State Farm Insurance Company ("State Farm"), which paid $10, 201.24 for repairs to the house, minus a deductible of $1, 000. Insurance property damage assessments took several months to complete. The repairs began in September and were finished in October 2016.

         In December 2016, the plaintiffs filed a petition for damages naming DuJuan and Safeway as defendants. A bench trial was held in January 2018. Along with pictures of the damage and the completed repairs, the declaration page of the Safeway policy was introduced into evidence. The policy provided a $25, 000 limit for property damage liability, and a $15, 000 limit for each instance of bodily injury liability. The parties stipulated that Safeway was liable and would be responsible for the $1, 000 deductible the plaintiffs were required to pay under their homeowners' insurance policy. The plaintiffs' counsel stated that the recovery sought did not exceed the policy limits. The only issue in dispute was the amount of damages. The elements of damages sought by the plaintiffs were the deductible, loss of use of the house, inconvenience, and mental anguish, which was referred to as "the trauma of what happened when the car ran into the house."

         Officer Derrick Whitney with the Delhi Police Department investigated the accident. He testified that, when he responded to the accident, DuJuan was present and did not seem to be impaired. The plaintiffs and one of the neighbors were also present on the scene. According to Whitney, the plaintiffs were surprised and upset, but were coherent.

         Mrs. Enriquez testified that she and Dr. Enriquez had been married for 35 years. They had lived in their house since 1990, and had a 30-year-old daughter and a 27-year-old son. Their son was in medical school and came home approximately once a month. Mrs. Enriquez said that, on the morning of the accident, the couple were in bed in the back of the house when they heard a squeaking noise and a boom, which shook the house. They discovered that a car hit the house and the two front bedrooms of the house were impacted. She said the driver of the car was present and was talking on a cell phone. He did not speak to them. Mrs. Enriquez said that she was shaking and could not speak. Her husband spoke to the police.

         Mrs. Enriquez said that there was a large hole in the front of the house and one of the brick columns was knocked over. One of the bedrooms was penetrated and the closet in another bedroom was damaged. The plaintiffs put wood panels over the hole, which remained for more than four months before repairs were completed. The contents of the rooms had to be moved into the living room. Bugs and insects crawled into the house and they had to put towels at the bottom of the doors to seal this off from the remainder of the house. When they had visitors, one person slept in the guest bedroom and the other had to sleep on the couch. The brick on the house could not be matched, so bricks from the columns were used and white columns replaced the brick columns. Mrs. Enriquez did not work outside the home, and was at home with the damage for the months it took to complete the repairs.

         Mrs. Enriquez did not see a doctor, health care professional, or mental health care professional about any emotional trauma she suffered because of the accident. She took over-the-counter sleeping pills once or twice to calm down the week after the accident. The couple did not rent a storage room and were able to continue living in the house until the repairs were made.

         Dr. Enriquez, a physician at the Delhi Clinic and Hospital, testified that he was shocked and surprised to see that a car had hit the house. He got someone to help him board up the hole, but the heat, dust, mosquitoes, and bugs came into the house because it was not possible to get a good seal. The couple made approximately four trips to surrounding brick yards in search of matching bricks to repair the house, but they were unsuccessful. Dr. Enriquez was able to continue working during the time it took to complete repairs to the house. He did not seek counseling from a mental health care professional or take any medication to deal with the trauma of the damage to the house.

         After reviewing post-trial briefs, the court rendered judgment in favor of the plaintiffs. In its reasons for judgment, the trial court found that the plaintiffs' claims for loss of use, inconvenience, and mental anguish were well-founded. The court noted the extreme damage to the home and the inconvenience suffered by the plaintiffs for several months before the repairs were completed. The court determined that the plaintiffs established that they suffered psychic trauma as a result of the accident and were entitled to damages for mental anguish, even though they did not seek outside medical help. The court observed that, because Dr. Enriquez is a physician, he could have attended to any of their medical needs.

         The court awarded the plaintiffs the $1, 000 property damage deductible, classified as a property damage award; $6, 750 to each plaintiff for loss of use, classified as a property damage award; $13, 500 to each plaintiff for inconvenience, classified as general damages; and $3, 500 to each plaintiff for mental anguish, classified as general damages. The total award was $48, 500. The plaintiffs were also awarded legal interest on the judgment from the date of judicial demand. Safeway appealed suspensively.

         On appeal, Safeway asserts that the trial court erred in making excessive damage awards to the plaintiffs for loss of use and inconvenience, in making any award for mental anguish, and in determining that the damages for inconvenience and mental anguish are to be classified as general damages.


         Safeway contends that the awards for loss of use and inconvenience in this case were excessive and represented an abuse of discretion. We find that the award for loss of use was not excessive. However, the trial court abused its discretion in making an excessively high award for inconvenience.

         Legal Principles

         One injured through the fault of another is entitled to full indemnification for damages caused thereby. Wainwright v. Fontenot, 00-0492 (La. 10/17/00), 774 So.2d 70; Antley v. Rodgers, 52, 168 (La.App. 2 Cir. 6/27/18), 251 So.3d 607. See also La. C.C. art. 2315. Special damages are those that can be determined with some degree of certainty. The plaintiff bears the burden of proving special damages by a preponderance of the evidence. An award of special damages is reviewed pursuant to the manifest error standard of review. Baw v. Paulson, 50, 707 (La.App. 2 Cir. 6/29/16), 198 So.3d 186; Antley v. Rodgers, supra.

         Damages for loss of use are special damages. They are recoverable whether the property is used for business or personal purposes. The normal measure of damages for loss of use is the rental value of similar property and perhaps necessary incidental expenses. It is not necessary, however, that a plaintiff actually rent substitute property in order to recover damages due for loss of use. Rental (which accomplishes the substitution of the use of similar property for that of the injured property) does not determine entitlement to damages, but only provides a fair measure of damages in appropriate cases. The period of compensatory loss of use is the time required to secure the repair of the property in the exercise of proper diligence. See FIE, LLC v. New Jax Condo Ass'n, Inc., 2016-0843 (La.App. 4 Cir. 2/21/18), 241 So.3d 372, writ denied, 18-449 (La. 5/25/18), 243 So.3d 544, and writ denied, 18-446 (La. 5/25/18), 243 So.3d 545; Chriss v. Manchester Ins. & Indem. Co., 308 So.2d 803 (La.App. 4 Cir. 1975).

         General damages are those which may not be fixed with pecuniary exactitude; instead, they involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or lifestyle which cannot be definitely measured in monetary terms. Thomas v. Morris, 51, 112 (La.App. 2 Cir. 1/11/17), 211 So.3d 647, writ denied, 17-0442 (La. 4/24/17), 219 So.3d 1099; Antley v. Rodgers, supra. An appellate court may disturb a general damage award only when the record clearly reveals that the trial court abused its discretion in making the award, based on the facts and circumstances peculiar to the case and the individual under consideration. See Baw v. Paulson, supra. The discretion vested in the trier of fact is "great," and even vast, so that an appellate court should rarely disturb an award of general ...

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