JOSE R. ENRIQUEZ AND IRMA ENRIQUEZ Plaintiffs-Appellees
SAFEWAY INSURANCE COMPANY OF LOUISIANA, ET AL. Defendant-Appellant
Appealed from the Fifth Judicial District Court for the
Parish of Richland, Louisiana Trial Court No. 45, 426-C
Honorable Stephen G. Dean, Judge.
BRETT CAIN Counsel for Appellant
ANTHONY J. BRUSCATO Counsel for Appellees
WILLIAMS, GARRETT, and STONE, JJ.
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.
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.
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.
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.
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
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.
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
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.
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.
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.
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
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.
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.
OF USE AND INCONVENIENCE
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.
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,
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.
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 ...