Glenn Thibodaux and Angela Thibodaux VS St. Mary Parish Sewer District No. 7 and CNA Insurance Company
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2009 CA 1466 GLENN THIBODAUX AND ANGELA THIBODAUX VERSUS ST MARY PARISH SEWER DISTRICT 07 AND CNA INSURANCE COMPANY Judgment rendered February 12 2010 Appealed from the 16th Judicial District Court in and for the Parish of St Mary Louisiana Trial Court No 108 152 Honorable William D Hunter J LOUIS GIBBENS Judge ATTORNEYS FOR DENNIS STEVENS PLAINTIFFS APPELLANTS NEW IBERIA LA GLENN AND ANGELA THIBODAUX SKYLER JAMES THIBODAUX AND DANIELLE RENEE THIBODAUX WARD GREGORY W RONIGER METAIRIE ATTORNEY FOR LA DEFENDANTS APPELLEES ST MARY PARISH SEWER DISTRICT 07 AND VALLEY FORGE INSURANCE COMPANY KURT A OFFNER ATTORNEY FOR KENNER THIRD PARTY DEFENDANT APPELLEE LA KUHLMAN BECNEL HARDWARE ELECTRIC COMPANY INC BEFORE CARTER C J GUIDRY AND PETTIGREW JJ PETTIGREW J In this plaintiffs Glenn and Angela Thibodaux filed case against defendants St Mary Parish Sewer District 07 Valley Forge Insurance Company Mary filed St up a third for damages to their home caused that alleging Kuhlman Becnel had damages and its insurer Mary by sewage back a party demand against Kuhlman Becnel Hardware Kuhlman Becnel Inc 1 St action for an assumed Electric complete responsibility for the inspection maintenance repair and upkeep of the equipment that was the subject of plaintiffs complaint and seeking indemnity for any judgment that may be assessed against it in these proceedings March 2007 and for written an amended reasons assigned judgment2 on January 23 IT IS ORDERED 2009 on Following a trial on the merits in May 23 2007 the trial court rendered finding as follows ADJUDGED AND DECREED that there be judgment herein in favor of Angela Thibodaux against Defendants St Mary Parish Sewer District 07 and its insurer CNA Insurance Company in the sum of 5 000 00 IT IS FURTHER ORDERED ADJUDGED AND DECREED that there be against St Mary Parish Sewer District 07 and CNA Insurance Company with prejudice judgment herein dismissing the suit of Glenn Thibodaux IT IS FURTHER ORDERED judgment herein dismissing ADJUDGED AND DECREED that there be the suit of Skyler Thibodaux against St Mary Company with prejudice Parish Sewer District 07 and CNA Insurance IT IS FURTHER ORDERED ADJUDGED AND DECREED that there be judgment herein dismissing the suit of Danielle Renee Thibodaux Ward against St Mary Parish Sewer District 07 and CNA Insurance Company with prejudice IT IS FURTHER ORDERED ADJUDGED AND DECREED that there be judgment herein in favor of St Mary Parish Sewer District 07 and CNA Insurance Company and against Kuhlman Becnel for the sum of 5 000 IT IS Defendants St FURTHER Mary ORDERED ADJUDGED AND Sewer District and CNA Insurance DECREED Company that are cast for all costs 1 Valley Forge petition 2 for Insurance Company was erroneously designated as CNA Insurance Company in the damages 200S action by this court another panel determined that the trial court s original dated July lS 2007 did not constitute a valid final written judgment from which an appeal judgment could be taken and thus dismissed plaintiffs appeal of said judgment In an October 2S 2 IT IS FURTHER ORDERED ADJUDGED AND DECREED that there be judgment favor of in Insurance Company Plaintiffs have Failing A Defendants and St Mary Sewer District and CNA Kuhlman Becnel for all costs against appealed arguing the trial court committed manifest error general damages to Angela Thibodaux and mental humiliation inconvenience anguish to award Thibodaux for embarrassment and also for the destruction of and loss of in Glenn and of their use property B Failing to award damages to Glenn Thibodaux Skyler James Thibodaux and Danielle Renee Thibodaux Ward for complete destruction of the value of the home which they co owned C Failing to award With interest the to respect legal initial acknowledged Angela Thibodaux raw Angela as her furniture and other testified that she was the bathroom the toilet with a on the sink and bathtub plunger an and see raw and onto the floor so a m assistance seen She sewage spewing up and by her neighbors in that condition or the attempted to stop the overflow her feet and the lower 4 4 08 plunger she part of her legs Once she realized she ran to a neighbor s house for Angela also testified about her to bacteria in the water and raw sewage recurrence of standard 459 v An concerns over and the possibility of infection condition that she had suffered from years earlier applicable Bouquet 979 So 2d 456 a Hepatitis The standard of review discretion a out of Angela recalled the humiliation and embarrassment she experienced being being exposed and stop the overflow with She backup As she walked toward the became covered with human feces urine and used toilet paper would be unable to property that Angela stated that when she got to gurgling doing court personal items which caused her anguish light and could in the process of trial personally exposed to the to the residence and other odor around 7 30 she heard the toilet she turned was the home alone at the time of the sewage indicated that she first detected master bathroom damage plaintiffs by testimony that she s sewage and also witnessed the she owned such assigned error to a general damages award Wal Mart Stores Inc appellate court may disturb 3 is the abuse of 2008 0309 a p 4 La damages award only after an articulated Allstate Ins Corp analysis Co 625 So 2d 1337 623 So 2d 1257 127 L Ed 2d 379 Based on our La La 1993 cert 1993 denied Youn Maritime Overseas v 510 U S v 1114 114 S Ct 1059 review of the record we find it was an whole as a and considering the facts and abuse of discretion by the trial court not to Angela damages for mental anguish humiliation and inconvenience associated with the sewage backup and her personal contact with the human feces urine and used toilet paper 2 500 00 to Under the circumstances of this Angela is appropriate herein The second award 1261 1340 Theriot abuse of discretion an 1994 circumstances herein award of the facts reveals error assigned by the case we We amend the plaintiffs conclude that for reasons concerns the trial court damages failure to by the trial in the amount of the fair market value of the house before the incident occurred which 81 500 As noted s judgment Plaintiffs asked the Court for be award of judgment accordingly damages for the complete loss of the value of the house court in its an The Court rejects plaintiffs request to prove that defendants caused all the backed into plaintiffs residence and was determined to plaintiffs damages alleged was as cleaned by a were unable The sewage professional cleaning agency the very next day Three days later the house was flooded It is difficult to distinguish the damages caused by the two incidences The Court agrees with defendants in that after reviewing the adjuster s report damage to the rooms affected by the sewage backup is approximately 9 000 However as defendant Becnel argued at trial plaintiffs have previously received compensation for the damage caused by the sewage backup as plaintiffs insurance company paid out 38 000 for damage to the home caused by Tropical Storm Allison and the At trial testimony elicited from David Jones flood sewage backup appraiser for NFPS and Mike Hardy flood appraiser for GAB revealed that the damage to the rooms affected by the sewage backup was also included in the 38 000 payout received by plaintiffs insurance From the facts in the record failing home 3 The to award This we cannot conclude the trial court abused its discretion in plaintiffs damages for the complete destruction of the value of their assignment of error is without merit record is void of any evidence that Glenn suffered any such damages for mental anguish and inconvenience associated with the sewage backup Unlike with Angela s situation who was offshore working at the time of this incident did not have any personal contact with the humiliation Glenn human feces urine or used toilet paper not to award Glenn any Thus we find damages 4 no abuse of discretion in the trial court s decision In their final assignment plaintiffs allege legal interest in its judgment interest in the court shall award Moreover as set judicial demand not to award forth in La on all 5 R in the trial court legal interest Thus judgment in part as s failure to award Pursuant to La Code Civ P prayed for art 1921 the provided by law judgment as 13 4203 Legal interest shall attach from date of judgments sounding in damages For the above and 2009 We agree error we foregoing amend the reasons It or as was error for the trial court judgment accordingly we amend the trial court s January 23 follows IT IS ORDERED ADJUDGED AND DECREED that there be judgment Angela Thibodaux against Defendants St Mary Parish Sewer District 07 and its insurer CNA Insurance Company in the sum of 7 500 00 together with legal interest thereon from the date of judicial demand until paid herein in favor of IT IS FURTHER ORDERED ADJUDGED AND DECREED that there be judgment herein in favor of St Mary Parish Sewer District 07 and CNA Insurance Company and against Kuhlman Becnel for the sum of 7 500 00 together with legal interest thereon from the date of judicial demand until paid In all other respects the judgment is affirmed accordance with Uniform Rules with this appeal are assessed Courts of We issue this memorandum Appeal Rule 2 16 1B equally between the parties AMENDED IN PART AND AS AMENDED AFFIRMED 5 opinion in All costs associated
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