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Koertge v. State Farm Fire and Casualty Insurance Co.

Court of Appeals of Louisiana, Second Circuit

February 27, 2019

DONNETTE KOERTGE, INDIVIDUALLY AND ON BEHALF OF THE MINOR CHILD, LAUREN KOERTGE Plaintiff-Appellant
v.
STATE FARM FIRE AND CASUALTY INSURANCE COMPANY, THE MANE DESIGN, LLC, AND MARLAINA FREE Defendants-Appellees

          Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 148, 797 Honorable Edward Charles Jacobs, Judge

          THOMAS, SOILEAU, JACKSON, BAKER & COLE, LLP Steven E. Soileau Ann Rene Shores Counsel for Appellant

          ZELDA W. TUCKER Counsel for Appellees

          Before WILLIAMS, STONE, and STEPHENS, JJ.

          STEPHENS, J.

         Plaintiff, Donnette Koertge, individually and on behalf of her minor daughter, Lauren Koertge, appeals a judgment in the Twenty-Sixth Judicial District Court, Parish of Bossier, State of Louisiana, awarding damages in favor of Plaintiff and against State Farm Fire & Casualty Insurance Company, The Mane Design, LLC, and Marlaina Free ("Defendants"). For the following reasons, we affirm in part and amend in part the trial court's judgment.

         FACTS AND PROCEDURAL HISTORY

         This matter arises out of the injury to the minor child, Lauren Koertge, who sustained a third degree chemical burn to the back of her scalp after having her hair highlighted at a salon in Bossier City, Louisiana, on July 21, 2015. She was 14 years old at the time. Lauren's mother, Donnette Koertge, filed a petition for damages on behalf of Lauren, as well as herself, against the stylist, Marlaina Free; the salon, The Mane Design, LLC; and their insurer, State Farm Fire & Casualty Insurance Company. Subsequently, Donnette filed a motion for summary judgment. With regard to the matter of liability, the motion was uncontested by Defendants and granted by the trial court. A bench trial was held on January 8, 2018, on the sole issue of damages. The trial court issued a written opinion on April 24, 2018, and made the following award in favor of Lauren: $265, 000.00 for pain, suffering, and psychological damages; $101, 520.16 for past medical expenses; and, $10, 000.00 for future medical expenses-totaling $376, 520.16. The trial court declined to award damages to Donnette. Judgment was rendered on May 4, 2108. This appeal by Donnette, individually and on behalf of Lauren, ensued.

         DISCUSSION

         On appeal, Donnette asserts the trial court erred in failing to (1) award damages for the cost of two future hair follicle transplants instead of one; (2) award damages for future counseling expenses; (3) award bystander and loss of consortium damages to Donnette; and, (4) award adequate general damages.

         In all civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes the setting aside of a trial court's finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC, 2014-2592 (La. 12/18/15), 193 So.3d 1110; Baw v. Paulson, 50, 707 (La.App. 2 Cir. 6/29/16), 198 So.3d 186. Thus, a reviewing court may not merely decide if it would have found the facts of the case differently, but rather in reversing a trial court's factual conclusions, the appellate court must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court's conclusion, and the finding must be clearly wrong. Hayes, supra; Baw, supra. This test requires a reviewing court to do more than simply review the record for some evidence which supports or controverts the trial court's findings, but instead, the court must review the entire record to determine whether the trial court's finding was clearly wrong or manifestly erroneous. Hayes, supra; Baw, supra.

         The issue to be resolved on review is not whether the judge or jury was right or wrong, but whether the factfinder's conclusion was a reasonable one. Rosell v. ESCO, 549 So.2d 840 (La. 1989). Accordingly, an appellate court on review must be cautious not to reweigh the evidence or substitute its own factual findings just because it would have decided the case differently. Id. As stated in Rosell, supra, at 844-5:

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness's story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. (Citations omitted).

         One injured through the fault of another is entitled to full indemnification for damages caused thereby. La. C.C. art. 2315. Wainwright v. Fontenot, 2000-0492 (La. 10/17/00), 774 So.2d 70; Terry v.Simmons, 51, 200 (La.App. 2 Cir. 2/15/17), 215 So.3d 410. Much discretion is left to the judge or jury in its assessment of quantum. La. C.C. art. 2324.1. As a determination of fact, the factfinder's assessment of quantum, or the appropriate amount of damages, is one entitled to great deference on review. Guillory v. Lee, 2009-0075 (La. 06/26/09), 16 So.3d 1104; Cooper v. Patra, 51, 182 (La.App. 2 Cir. 2/15/17), 215 So.3d 889, writs denied, 2017-0476, 2017-0481 (La. 5/12/17), 219 So.3d 1104 and 1105. Thus, an award of damages ...


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