Christina L. Danos VS William H. St. Martin, Sr., Individually and On Behalf of His Minor Son, William H. St. Martin, Jr. and Allstate Insurance Company
Annotate this Case
Download PDF
NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 1536 CHRISTINA L DANOS VERSUS WILLIAM H ST MARTIN SR INDIVIDUALLY AND ON BEHALF OF HIS MINOR SON WILLIAM H ST MARTIN JR AND n ALLSTATE INSURANCE COMPANY On Appeal from the 32nd Judicial District Court Parish of Terrebonne Louisiana Docket No 152 Division B 045 Honorable John R Walker Judge Presiding Joseph J Weigand Jr Attorney for Houma LA Plaintiff Appellee Christina L Danos Christopher P Lawler Attorney for Donovan Defendants Appellants Lawler Metairie LA William H St Martin Sr Individually and on behalf of his minor son William H St Martin Jr and Allstate Insurance Company BEFORE CARTER C PARRO KUHN McDONALD AND KLINE J J Judgment rendered SEP 1 4 2010 1 Judge William F Kline Jr retired is serving as judge pro tempo re by special appointment of the Louisiana Supreme Court PARRO J In this appeal arising out of a motor vehicle accident William H St Martin Sr individually and on behalf of his minor son William H St Martin Jr and Allstate Insurance Company Allstate appeal the award to Christina L Danos of 2000 for diminution in value of her car and of 30 in general damages 000 This court has examined the record and concludes that the testimony of Mr Lester Bimah an employee of Barker Honda as well as a letter written by him certifying such damages both of which were admitted without objection at trial provide evidentiary support that despite being repaired Ms Danos vehicle was diminished in s value as a result of the accident There is no countervailing evidence and the record as a whole does not demonstrate that the award of 2000 was manifestly erroneous With reference to the general damage award the record shows that Ms Danos incurred neck shoulder and back pain as a direct result of the accident and continued to suffer from stiffness and intermittent spasms at the time of trial two years after the accident She was treated for her injuries in the emergency room of Terrebonne General Medical Center by her family doctor Dr Kirk Dantin by Terrebonne Physical Therapy and by Dr Todd Arcement a chiropractor She was still seeing the chiropractor occasionally for back and neck pain and stiffness related to the accident Based on the evidence in the record we find the trial court did not abuse its discretion in awarding Ms Danos 30 in general damages 3 000 Z Louisiana law provides that diminution in value of a vehicle involved in an accident is an element of recoverable damages if sufficiently established In a case involving damages to an automobile where the measure of damages is the cost of repair additional damages for depreciation may be recovered for the diminution of value due to the vehicle involvement in an accident However there must be proof of s such diminished value Davies v Automotive Cas Ins 26 La App 2nd Cir 12 647 So 112 94 7 2d 419 422 Defraites v State Farm Mut Auto Ins Co 031081 La App 5th Cir 1 864 So 04 27 2d 254 260 3 General damages involve mental or physical pain and suffering inconvenience or other losses of lifestyle that cannot be measured definitively in terms of money Boudreaux v Farmer 604 So 641 2d 654 La App 1st Cir writs denied 605 So 1373 and 1374 La 1992 The factors to be considered 2d in assessing quantum of damages for pain and suffering are severity and duration Jenkins v State ex rel Dept of TransD and Dev 061804 La App 1st Cir 8 993 So 749 767 writ denied 08 08 19 2d 2471 La 12 996 So 1133 Much discretion is left to the judge in the assessment of general 08 19 2d damages LSAC art 2324 In reviewing a general damage award a court does not review a C 1 particular item in isolation rather the entire damage award is reviewed for an abuse of discretion Smith v Goetzman 97 0968 La App Ist Cir 9 720 So 39 48 98 25 2d 2 After a thorough review of the record and relevant law and jurisprudence we conclude that the trial court oral reasons for judgment adequately explain its decision s As the issues in this case involve no more than an application of well settled rules to a recurring fact situation we affirm the judgment in accordance with Rule 2 16 A 2 4 5 6 and 8 of the Uniform Rules of Louisiana Courts of Appeal All costs of this appeal are assessed against Allstate AFFIRMED 3 CHRISTINA L DANOS FIRST CIRCUIT VERSUS COURT OF APPEAL WTLLIAM H 5T MARTTN SR iNDIVIDUALLY AND ON BEHALF OF STATE OF LOUISIANA HIS MINOR SON WiLLIAM ST MARTIN JR AND ALLSTATE INSURANCE COMPANY ppq 3 g131 NO HN J dissenting I disagree with the majority affirmance of the trial court awards for s s diminution in the value of the Danos vehicle and for general damages The record acks the requisite evidentiary basis to support the diminution award and the trial court abused its discretion in th neral damages award The record shows that one witness Lester Bimah testified as to the value of the Danos vehicle after the accident A letter signed by Bimah on Barker Honda stationary addressed To Who Ct May Concern stat that the Danos vehicle n rng had depreciated in value approximately 2000 due to moderate damage reported to Carfax letter was admitted into evidence At trial no foundation was laid for the Bimah stated that he could not show the court how he determined the vehicle had devalued by 2 OU0 documentation demonstrating other evidence addressing such the record lacks the He also said that he did not have any 000 2 devaluation The record contains no the diminution in the value of the Danos vehicle an evidentiary basis to support the As 000 2 award Accordangly I would reverse the trial court 2 award s 000 While it is axiomatic that the trial court has vast discr in fashioning a tion general damages award the record must nevertheless contain suffici ntevidence to allow a trier of fact to assess the effects of the particular injury to the particular plaintiff under the particular circumstances 1 See Youn v Maritime Overseas Corp 623 So 1257 1261 La cert denied 510 U 1114 114 S 2d 1993 S Ct 1059 127 L 379 1994 A plaintiff must prove what damage by kind and 2d Ed seriousness was caused by defendant fault before the court can render an s appropriate award Hall v Brookshire Bros Ltd 2002 2404 pp 11 12 La 03 27 6 848 So 559 567 And when the award rendered is beyond that which 2d a reasonable trier of fact could so assess the appellate court should reduce the award See Youn 623 So at 1261 Because this record fails to establish the 2d particular injury Ms Danos suffered I believe the trial court abused its discretion in awarding 30 in general damages 000 Initially I note that the trial court made findings based on information that was not admitted into evidence It determined that a s is not a subjective pasm finding but an objective finding and imputed that to Dr Arcement testimony s that plaintiff had pain and suffered an injury valued at 30 The trial court also 000 determined without any evidence offered to support the findings that general practitioners usually feel that a sprain ought to resolve itself within 90 days strain to six months Then we have the other medical experts that give different opinions when they examine Plaintiffs Lastly in its reasons for judgment the trial court stated that it had Doctors Gervais and Arcement testify on previous occasions The Court has no reason to disbelieve their testimony in these particular cases This statement is clearly a reference to matters outside the record and curiously I note that Dr Gravais did not testify in this case Compounding the trial court reliance on evidence outside the four s corners of this record was its note that there has been no independent medical examinations that have been performed since Dr Dantin stopped treating the Plaintiff in this case But the burden of proofwas with Danos to demonstrate the particular injury from which she suffered 2 Although the trial court found Danos to be very believable very credible neither the medical records nor her testimony supports the general damages award of 30 Danos testified that immediately after the accident she had pain in her 000 upper back neck and shoulders She acknowledged that since the accident the pain had lessened When asked to describe the pain in her neck she stated Sitting in a chair for a long period of time it uncomfortable I feel like I get s stiff Trying to sleep I can tget comfortable I toss and turn I get pains in my back and neck like uncomfortable Danos stated that s in a chair for a itting long period of time or trying to sleep caused her back pain When asked about the effects of the back or neck injuries on her daily living Danos stated It just s uncomfortable as far as sleeping or doing things like I normally would J ust anything as simple as going to a football game and sitting on the bleachers or sleeping At work sitting in a chair Explaining the pain Danos said It like a s stiff pain Like I get stiff I have to always move around According to the medical records Danos was in this accident on August 2 2006 She was treated at Terrebonne General where she complained of neck and left shoulder pain She had normal results from xrays and was told she could return to work on August 7 2006 She continued to receive occasional treatment from Dr Kirk Dantin through December 2006 In May 2007 Danos began treating with chiropractor Dr Arcement In addition to unresolved neck pain her complaints to Dr Arcement now included low back pain Nothing in Danos testimony or elsewhere in the record explains the gap in treatment or how the manifestation of complaints of lowback pain related to the either the injuries she initially sustained or to the accident Essentially Danos has proven at best a four month soft tissue injury A general damages award of 000 30 for the four month soft tissue injury this record establishes is an abuse of 3 discretion As such I would lower it to the highest point within its discretion see Coco v Winston Indus Inc 341 So 332 335 La 1976 which I believe 2d would not be more than 12 000 For these reasons I would reverse the trial court award of 2 for s 000 diminution of the value of the Danos vehicle and reduce to 12 the general 000 damages award Accordingly I dissent 4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
