Janet Sue Muller VS Colony Insurance Company and William H. Muller
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 CA 0688 JANET SUE MULLER VERSUS COLONY INSURANCE COMPANY AND WILLIAM H MULLER Judgment Rendered DEC q 2010 Appealed from the Nineteenth Judicial District Court and for the Parish of East Baton Rouge Louisiana Docket Number 545 576 Honorable R Michael Caldwell Judge Presiding William T Lowrey Jr Baton Rouge LA Counsel for PlaintiffAppellee Janet Sue Muller and Keith L Richardson Baton Rouge LA Rodney J Lacoste Jr New Orleans LA Counsel for DefendantAppellant Colony Insurance Company and Paul D Palermo John M Herke Metairie LA BEFORE CARTER WHIPPLE GAIDRY McDONALD AND McCLENDON JJ Crm C04 AZ mac WHIPPLE J In this appeal an insurance company challenges the trial court s ruling which found that the commercial general liability policy at issue provided coverage for the plaintiff injuries s Plaintiff has answered the appeal challenging issues of allocation of fault and quantum For the following reasons we amend and affirm FACTS AND PROCEDURAL HISTORY Janet Sue Muller is a sole proprietor doing business as SnoMobile of Louisiana a snowparty business Conducting a snow party entails creating snow from shaved ice spreading the snow on a tarp with a rake or squeegee and coordinating snow games Normally conducting a snow party is a two person job and Janet her son and his wife her daughter and her daughter s husband and her daughterinlaw mother and brother all assisted in s conducting snow parties for Janet business s s Janet husband William Muller periodically performed minor maintenance work on the ice shaving machines but he rarely assisted in actually conducting snow parties On December 24 2005 Janet son and his wife were scheduled to s conduct a snow party at an apartment complex in Baton Rouge However when her son informed Janet that he and his wife could not conduct the party Janet asked her husband William to assist her with the party s William responsibilities at the party included positioning the truck and trailer with the ice shaving equipment and shaving the ice into snow while Janet was responsible for spreading the snow on the tarp Janet was also trying to keep the children off the tarp until they had finished creating and spreading the snow While the business name is listed as Snomobile of Louisiana in the petition a check from an account bearing the name of the business lists the name as Sno Mobile ofLouisiana 2 When William began shaving the ice he encountered a problem with the ice shaving machine Specifically the belt connected to the top and bottom pulleys was squealing thus requiring William to remove the protective guard or cover from the machine to tighten the belt After tightening the belt William started the machine again to test it and when he was satisfied that the machine was again working properly he resumed shaving the block ice into snow However after adjusting the belt William failed to replace the protective cover over the pulley mechanism of the ice shaving machine Meanwhile Janet who had not seen William remove the protective cover from the machine and who was unaware that he had removed it began walking toward the location where William was shaving ice in order to spread the snow he had shaved toward the middle of the tarp However as she approached the back of the truck where William was working Janet slipped on the tarp and reached out to grab onto the truck to steady herself Instead of grabbing onto the truck Janet apparently reached beyond the side panel of the truck and her right hand became entangled in the pulley or belt which was no longer shielded by the guard or cover As a result of the accident Janet right small finger and ring or long finger were seriously s injured with the small finger being traumatically amputated at the base of the finger Janet subsequently underwent numerous surgeries and now has permanent disability of her right hand On July 25 2006 Janet filed suit against William alleging that he was negligent in causing the accident and Colony Insurance Company Colony alleging that it had issued an insurance policy insuring William from liability for his negligence herein Thereafter Colony and Janet filed cross motions for partial summary judgment on the issue of insurance C coverage with Colony contending that the policy did not provide coverage to William for Janet injuries which were incurred within the course of s operating Janet business and with Janet contending the Colony policy did s provide coverage for William salleged negligent acts Following a hearing on the motions the trial court rendered judgment granting Janet motion for summary judgment and denying Colony s s motion Although Colony filed a writ application with this court seeking review of the trial court finding of coverage this court denied the writ s application on the basis that an adequate remedy existed on appeal after the rendition of final judgment on the merits Also William filed an exception of no right of action in response to s Janet suit against him averring that because he is Janet husband he was s statutorily exempt from S 921 liability pursuant to LSAR 9 which provides that a wife cannot sue her husband in tort for negligent injury while married Thereafter on joint motion of Janet and William the trial court rendered judgment dismissing without prejudice Janet claims against s William while reserving her right to proceed against Colony Accordingly the matter ultimately proceeded to trial against Colony only Following a bench trial the trial court found that William and Janet were both negligent in causing the accident and assessed 40 fault to William and 60 fault to Janet The court further found that Janet had suffered 140 in general damages in addition to past medical 00 000 expenses all of which it found to be related to the accident with those amounts to be reduced by Janet comparative fault s However the court found that Janet had failed to prove her entitlement to any future medical expenses Accordingly the trial court entered judgment in favor of Janet and against Colony in the amounts of 56 representing general 00 000 damages of 140 reduced by Janet percentage of fault and 00 000 s 41 889 18 representing 47 in medical expenses reduced by Janet 53 223 s percentage of fault Janet then filed a motion for new trial contending that the trial court s finding that she was 60 at fault in causing the accident was not supported by the evidence presented at trial Following a hearing on the motion the trial court rendered judgment granting the motion for new trial and reapportioning fault 50 to Janet and 50 to William Accordingly the judgment granting the motion for new trial awarded Janet 70 in 00 000 general damages representing a 50 percent reduction for her comparative fault and 23 in past medical expenses also representing a 50 77 611 percent reduction for her comparative fault From these judgments Colony appeals assigning as error the trial s court finding that Colony policy provided coverage to William for his s negligence in causing the injuries sustained by Janet a named insured Janet answered the appeal contending that 1 the trial court erred in casting her with any fault for the injuries she suffered 2 the trial court erred in failing to award an adequate amount of general damages considering the nature and extent of her injuries and 3 the trial court erred in failing to award Janet any sum for future medical expenses DISCUSSION Coverage under the Colony s Colony Assignment of Error In its sole assignment of error Colony challenges the trial court s finding that the commercial general liability CGL policy issued by Colony provided coverage to William for his negligence in causing the injuries sustained by Janet its named insured An insurance contract or policy is a M conventional obligation that constitutes the law between the parties to the contract the insured and the insurer Grace v Cres o 20070397 La App 1s Cir 9 970 So 2d 1007 1012 writ denied 20072010 La 07 19 s 07 7 12 969 So 2d 636 The goal of judicial interpretation of a policy wording is to determine the intent of the contracting parties See LSAC C art 2045 Grace 970 So 2d at 101 If the 2 language in an insurance contract is clear and unambiguous the agreement must be enforced as written Sanders v Ashland Oil Inc 941469 La App 1 Cir 5 st 95 656 So 2d 643 647 writ denied 95 1797 La 11 661 So 2d 1389 95 3 However any ambiguous provisions in an insurance contract must be construed in favor of coverage to the insured and against the insurer who issued the policy Moreover exclusionary clauses in insurance contracts are strictly construed against the insurer Sanders 656 So 2d at 647 Thus in determining whether the Colony policy affords coverage to William for Janet injuries we must examine the applicable policy s provisions Regarding coverage provided by the policy Section I of the policy entitled Coverages provides in pertinent part as follows COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY 1 Insuring Agreement a We will pay those sums that the insured becomes legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies With regard to who is considered an insured under the policy the Declarations page of the Colony commercial general liability policy designates the insured as Sue Muller da Snomobile of Louisiana b Additionally section II of the Colony policy entitled Who is an Insured defines insured in pertinent part as follows 1 If you are designated in the Declarations as Cc a An individual you and your spouse are insureds but only with respect to the conduct of a business of which you are the sole owner Emphasis added With regard to whether William comes within the definition of an insured under subsection La of Section II of the Colony policy we first note that Janet is designated as the insured on the Declarations page and it also is undisputed that William is Janet spouse and was her spouse at the s time of the accident in question Moreover the evidence presented at trial clearly establishes that the incident at issue arose out of the conduct of s Janet business Sno Mobile of Louisiana William was acting in the conduct of Janet business when he removed the guard or cover from the s pulley mechanism of the ice shaving machine in an effort to adjust the machine so he could create snow for the party Accordingly under subsection La of Section II of the Colony policy William qualifies as an insured Nonetheless Colony argues that isolating this portion of the insurance contract to find that the Colony policy insured William for the losses suffered by Janet ignores not only the remainder of the provision defining an insured but also the intent of the policy as a whole Specifically Colony asserts that William should not be afforded coverage because 1 the true intent of the policy was to protect an insured from damages caused to third parties and 2 he was a volunteer worker as defined by the policy Regarding the intent of the policy Colony first asserts that CGL policies are designed to protect the insured from losses caused to third parties and are not designed to cover damages sustained by an insured as the result of negligence of another insured Thus Colony contends a finding of coverage herein would pervert the true intent of the policy In support of its 11 argument that CGL policies are not designed to cover an insured for his negligence in causing damages to another insured Colony relies upon the Fourth Circuit case of First Mercury Syndicate Inc v New Orleans Private Patrol Service Inc 600 So 2d 898 La App 4 Cir writ denied 608 So 2d 169 La 1992 In First Mercury Syndicate an insurer which issued a CGL policy to a closely held family corporation filed suit seeking a declaratory judgment that its CGL policy did not provide coverage in a separate suit filed by one of the minority shareholders In that separate suit a minority shareholder of the corporation sued the corporation and the other shareholders alleging that he was wrongfully discharged as president and subsequently removed as director and that as a result he suffered a loss of wages and benefits First Mercug Syndicate Inc 600 So 2d at 899 900 In appealing the trial court finding that the CGL policy provided s coverage the CGL insurer argued 1 that the discharge of the minority shareholder was an intentional act and thus not considered an accident pursuant to the policy definition of an occurrence s and 2 that the Employers Liability Exclusion endorsement which excluded coverage for employment related claims also applied to preclude coverage in the suit by the former corporate president First Mercury Syndicate Inc 600 So 2d at 011I11 In reversing the trial court finding of coverage the Fourth Circuit s did not specifically adopt either of the arguments of the CGL insurer but rather determined that its reading of the insurance policy in its entirety led to the conclusion that the CGL policy did not provide coverage First Mercury Syndicate Inc 600 So 2d at 900 While not citing any specific provision of the policy the court held that tclear intent of the policy he was to protect the owners and shareholders N from losses caused to third parties related to the conduct of their security guard Mercury Syndicate Inc 600 So 2d at 900 acts allegedly committed by the other business First The court concluded that the officers and shareholders in terminating the president employment and removing him from the board s were not acts directly related to the conduct of the corporation security s guard business but rather were acts related to the control of the corporation First Mercury Syndicate Inc 600 So 2d at 901 However the Fourth Circuit then went further in its analysis and additionally concluded that the insurer was not required to provide coverage where all the parties to the litigation were insured under the same policy holding that a a matter of law and policy coinsured parties to a policy s are barred from recovering under such policies First Mercury Syndicate Inc 600 So 2d at 901 Thus the appellate court concluded that the CGL policy did not provide coverage in the separate suit by one shareholder and former officer against the corporation and other shareholders and officers First Mercury Syndicate Inc 600 So 2d at 901 902 With regard to the Fourth Circuit conclusion in First Mercury s Syndicate that the allegedly wrongful acts therein were not directly related to the conduct of the corporation business we note that the facts of the s instant case are readily distinguishable As stated above William was clearly acting in the conduct of Janet business when he removed the guard s or cover from the pulley mechanism of the ice shaving machine Thus First Mercury Syndicate is factually distinguishable from the instant case Moreover to the extent that the Fourth Circuit opinion sets forth a s blanket statement therein that a a matter of law and policy coinsured s parties to a policy are barred from recovering under such policies we disagree with and decline to follow this holding 6 Indeed as succinctly noted by Professors McKenzie and Johnson in analyzing the First Mer cer Syndicate case and the above quoted statement therein This statement is clearly wrong There is no statutory or jurisprudential bar that prevents an injured party solely because he is also an insured from recovering under a liability policy based upon the fault of another insured McKenzie William Shelby H Alston Johnson III Insurance Law and Practice 15 La Civ Law Treatise 182 pp 492 493 3d ed 2006 Professors McKenzie and Johnson further noted Numerous intrafamily claims under automobile and personal liability coverages involve liability claims by an insured Instead of barring such claims Louisiana law actually fosters them by depriving the insurer of the right to assert interspousal and intrafamily immunity and exempting such suits from the requirement that the insured be named as a party in a direct action William Shelby McKenzie H Alston Johnson III Insurance Law and Practice 15 La Civ Law Treatise 182 at p 493 n See e Doughty v 19 g Insured Lloyds Insurance Co 576 So 2d 461 La 1991 wherein a wife recovered damages for the death of her son from the CGL insurer which insured her husband business even though the wife was also insured under s the CGL policy as the spouse of the named insured While Colony acknowledges that the First Mercury case may have over stated the law in holding that coinsured parties to a policy are barred from recovering under such policies Colony nonetheless argues that First Mercury was correct in its statement that the clear intent of the CGL policy was to protect the insureds from damages caused to third parties rather than to other insureds However the intent of the parties to an insurance policy as to the extent of coverage is determined from the particular language of the policy itself Highlands Underwriters Insurance Company v Fole La App I Cir 3 691 So 2d 1336 97 27 10 1340 The 96 1018 clear and unambiguous language of the CGL policy at issue herein provides coverage for the negligence of William as the spouse of Janet the named insured for the conduct of Janet business SnoMobile of Louisiana There is nothing s in the language of subsection 1 of Section II of the Colony policy the a subsection granting coverage to the spouse of the named insured that limits such coverage where the damages are sustained by another insured under the policy Moreover we note that Section IV of the policy addresses the commercial general liability conditions of the policy and makes it clear that subject to the limits of the policy each insured has separate coverage as if each were separately insured with a distinct policy of insurance Sanders 656 So 2d at 648 See Specifically section IV subpart 7 entitled Separation of Insureds provides that ewith respect to the Limits xcept of Insurance and any rights or duties specifically assigned in this Coverage Part to the first Named Insurance this insurance applies Named Insured were the only Named Insured and Separately to each insured against whom claim is made or suit is brought added as if each Emphasis Therefore under the clear wording of the Colony insurance contract subject to the limits of liability each insured including William as s Janet spouse with respect to the conduct of the snow party business is entitled to coverage under the policy See Sanders 656 So 2d at 648 Thus this provision further negates Colony argument that it was not the s intent of the policy provide coverage to an insured for losses suffered by another insured Accordingly we find no merit to Colony argument that CGL s policies are designed only to protect the insured from losses caused to third parties and are not designed to cover damages sustained by an insured as the 11 result of negligence of another insured and accordingly that a finding of coverage herein would pervert the true intent of the policy The clear wording ofthe CGL policy at issue dictates a different result Turning to Colony second argument in support of its contention that s coverage should not be afforded for William negligence Colony asserts s that because William was a volunteer worker as defined in the policy coverage for his negligence in injuring the named insured is precluded under the policy The language upon which Colony relies for this contention is contained in subsection 2 of Section II Who is an Insured which 1 a provides as follows 2 Each of the following is also an insured a Your volunteer workers only while performing duties related to the employees conduct of your business or your other than either your executive officers if you are an organization other than a partnership joint venture or limited liability company but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business However none of these employees or volunteer workers are insureds for 1 Bodily injury or personal and advertising injury a To you to your partners or members if you are a partnership or joint venture to your members if you are a limited liability company to a co employee while in the course of his or her employment or performing duties related to the conduct of your business volunteer workers while or to your performing other duties related to the conduct of your business Pursuant to this policy language the Colony policy also insures volunteer workers but that coverage is restricted or limited in that it does not extend to bodily injury to the named insured Colony asserts that this language of subsection 2 of Section It excludes coverage herein because a Janet the named insured was injured by William when he was acting as a 12 volunteer worker in the conduct of Janet business However we note at s the outset that subsection 2 of Section II provides that e of the ach following is also an insured under the policy It provides coverage in addition to that coverage already provided in subsection La of Section II to certain individuals including volunteers albeit more restricted or limited than the coverage afforded in subsection La of Section II In the instant case coverage for William negligence derives from s subsection La of Section II as the spouse of the named insured in the conduct of the named s insured business The coverage afforded in subsection La of Section II is not restricted or limited to exclude coverage for injury to the named insured as is the coverage provided in subsection a 2 Because coverage for William snegligence is derived from his status as s Janet spouse it derives independently from his role as a volunteer worker Consequently coverage is afforded for William negligence pursuant to s subsection La and it is thus unnecessary to determine if William would also be an insured under subsection 2 which provides more limited a coverage Accordingly we likewise find no merit to Colony sargument that the CGL policy does not provide coverage for William snegligence because he was acting as a volunteer worker The trial court correctly determined that the CGL policy issued by Colony herein provides coverage for Janet s injuries caused by William negligence in the conduct of the business of s SnoMobile of Louisiana Fault of Janet Assignment of Error No 1 in Answer to Appeal In her answer to the appeal Janet challenges several findings by the trial court including the trial court apportionment of fault Specifically s she avers that the trial court erred in finding that she was comparatively 13 negligent in causing her own injuries and alternatively in assigning her 50 fault To prove that a plaintiff is comparatively negligent the defendant must prove that the plaintiff was contributorily negligent and that such negligence was a proximate cause of the resulting injury Mallard Bay Drilling LLC 2000 1268 La App l 2d 694 704 st Derouen v Cir 6 808 So 01 22 Thus in determining whether Janet was comparatively negligent in causing her own injuries the trial court had to determine whether she failed to act as a reasonably prudent person under the circumstances whether her conduct was a cause in fact of her injuries and whether the risk of the injury she sustained was within the scope of protection afforded by the duty she breached See Moory v Allstate Insurance Company 20040319 La App 1 Cir 2 906 So 2d 474 st 05 11 478 writ denied 20050668 La 4 901 So 2d 1076 05 29 In finding that Janet was comparatively negligent in causing her own injuries the trial court found that Janet as the owner of SnoMobile of Louisiana had assigned her husband William to operate the ice shaving machine and that Janet was trying to do everything else and was somewhat in a hurry when the accident happened Ultimately the trial court concluded that although William was actively at fault in causing the accident Janet as the owner of the business was the person responsible for ensuring that the ice shaving machine was being operated safely which it was not at the time of the accident Accordingly the trial court on motion for new trial assigned Janet 50 fault for her passive fault in failing to f ensure that the iceshaving equipment was operated safely We find no manifest error in the trial court finding that Janet was s also at fault in causing her own injuries The record demonstrates that Janet was the sole proprietor of SnoMobile of Louisiana and that William was not involved in conducting coordinating or supervising the snow parties for s Janet business Indeed except on rare occasions William did not even attend the snow parties to assist Janet and on the few occasions that he did attend the only job he performed was shaving ice Janet on the other hand was involved in every aspect of her snow party business Although she did not personally conduct every snow party for the business when she did conduct a party she took responsibility for coordinating with the customer regarding the placement of the tarp on which the ice is shaved spreading the shaved ice over the tarp supervising the children at the parties to ensure that they stay away from the truck trailer and ice shaving machine and conducting snow games with the children It is clear from the record before us that Janet was responsible for conducting the party in a safe manner and while she acknowledged that the ice shaving machine can be dangerous and that operating the machine without the guard was unsafe she further acknowledged that she did not oversee or supervise the operation of the machine at all Janet further admitted that although she had approached the truck with the iceshaving machine a number of times before the accident she failed to observe that the guard had been removed because she was distracted and completely absorbed in other things going on with the party Considering the foregoing we are unable to find manifest 2 A stated above the trial court initially assigned Janet 60 fault following trial on the basis that Janet as the owner of the business had a duty to see that the party was conducted safely and that while Janet was acting in haste she acted in haste due to circumstances created somewhat by her making 15 error in the trial court determination that Janet was also negligent in s causing her own injuries Moreover with regard to the trial court apportionment of 50 fault s to Janet in considering the factors set forth in Watson v State Farm Fire and Casualty Insurance Co 469 So 2d 967 974 La 1985 we cannot conclude that the trial court was manifestly erroneous in assessing 50 fault to Janet See Duzon v Stallworth 2001 1187 La App 1st Cir 12 866 So 2d 02 11 837 862 writs denied 2003 0589 20030605 La 5 842 So 2d 03 2 1101 1110 Clearly Janet conduct in slipping and attempting to grab onto s the side of the truck resulted from mere inadvertence However while she was aware that the operation of the ice shaving machine was dangerous she made no attempt to monitor or oversee its operation during the party to ensure that it was being operated safely While William actions in s operating the ice shaving machine without replacing the guard were perhaps more directly related to the accident Janet failure to monitor the operation s of the ice shaving machine for safety created a substantial risk that someone could be seriously harmed by the exposed mechanisms of the machine Moreover despite William experience with mechanical equipment Janet s was the person responsible for the overall safety of the event and the party with experience in conducting the snow parties Thus she was the party in a superior position to monitor the operations and demand that safety precautions be observed Moreover from the record before us it does not appear that there were any extenuating circumstances that required Janet to proceed in haste in retrieving a squeegee or rake to move the snow to the center of the tarp Accordingly we cannot conclude that the trial court s assessment of 50 fault to Janet was manifestly erroneous i General Damages Assignment of Error No 2 in Answer to Appeal In this assignment of error Janet contends that the trial court abused its discretion in awarding her only 140 in general damages for her 00 000 injuries A plaintiff is entitled to recover for all damages necessary to compensate for the physical injuries suffered Hymel HMO of Louisiana v Inc 20060042 La App I Cir 11 951 So 2d 187 204 writ 06 15 denied 20062938 La 2 949 So 2d 425 General damages are 07 16 those which may not be fixed with any degree of pecuniary exactitude but which instead involve mental or physical pain or suffering inconvenience the loss of gratification or intellectual or physical enjoyment or other losses of life or of lifestyle which cannot really be measured definitively in terms of money Hemel 951 So 2d at 204 205 The discretion vested in the trier of fact in awarding general damages is great and even vast such that an appellate court should rarely disturb such an award Youn v Maritime Overseas Corp 623 So 2d 1257 1261 La 1993 cert denied 510 U 1114 114 S Ct 1059 127 L Ed 2d 379 S 1994 The initial inquiry on appeal is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the much discretion of the trier of fact Youn 623 So 2d at 1260 Reasonable persons frequently disagree about the measure of damages in a particular case Thus it is only when the award is in either direction beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award Youn 623 So 2d at 1261 17 In the instant case Janet suffered a traumatic amputation of the right small finger at the base of the finger as well as injury to the right ring finger She underwent surgery on the day of the accident during which 15 procedures were performed on the two fingers These procedures included debridement of the wounds reattachment of the implantation of fixation devices in both fingers small finger and Janet initially remained hospitalized from December 24 2005 until December 29 2005 Despite efforts to reattach the right small finger the tip of that finger did not survive Thus Janet had to undergo a second surgery on January 27 2006 to amputate the tip of the right small finger On March 6 2006 Janet underwent a third surgery to remove pins previously placed in the two fingers to facilitate healing of fractures and for debridement and a skin graft on the small finger Thereafter Janet who is righthand dominant began developing problems with her left hand such as numbness and tingling of the thumb and index finger Her treating orthopedic surgeon diagnosed her condition as compression of the median nerve of the wrist ithe nerve inside the carpal tunnel otherwise known e as carpal tunnel syndrome Notably he attributed this diagnosis to overuse of the left hand due to the injury to Janet right hand Janet also developed s contractures of the tendons in the right hand which resulted from the flexor tendon retracting into the palm with the amputation of the small finger Because of these problems Janet was forced to undergo a fourth surgery on August 28 2006 to release the contractures in the right hand and for carpal tunnel release on the left hand Since her accident Janet has suffered from pain in the right hand and because of the nerve damage caused by the accident and surgeries Janet has also developed hypersensitivity in the right hand W During her medical treatment Janet underwent extensive physical therapy which she described as very painful to combat the contractures and the hypersensitivity Nonetheless she still suffers from limited range of motion and hypersensitivity in the right hand Additionally Janet has limited strength in her hand As a result of Janet permanent loss and disability her treating s orthopedic surgeon assigned Janet a 15 whole person impairment rating Because of the pain and hypersensitivity in the right pain Janet constantly guards that hand and has difficulty using the hand Operating any type of machinery that vibrates such as an automobile or vacuum cleaner causes Janet pain and she is no longer able to play the piano which she did for her church Considering the foregoing and the record as a whole as well as the vast discretion accorded the trier of fact in awarding general damages we cannot say that the trial court abused its discretion in awarding Janet 00 000 140 in general damages While Janet injuries are clearly serious s and her pain is ongoing and while the award is seemingly on the low side for such injuries we are unable to say the award was abusively low given the trial court svast discretion However because we conclude for the reasons set forth below that the trial court erred in failing to award Janet the cost of future surgery for trigger finger release we find merit to her claim that she is entitled to damages for future pain and suffering that she will experience in conjunction with that surgery Considering the condition of Janet s hand especially her hypersensitivity issues the pain she has experienced in recovering from past surgeries and the record as a whole we amend the general damages award on appeal to award an additional sum of 15 for future pain and 00 000 suffering related to the future trigger finger release surgery 19 Future Medical Expenses Assignment of Error No 3 in Answer to Appeal Janet further contends that the trial court erred in failing to award her any sum for future medical expenses She avers that she should have been awarded sums for future treatment for possible recurrence of a trigger finger and for any increase in post traumatic arthritis in her right hand Although future medical expenses are by nature speculative like any other element of damage they must be established to some degree of certainty Daigle v United States Fidelity and Guaranty Insurance Company 94 0304 La App I Cir 5 655 So 2d 431 440 95 An award for future medical expenses is justified if there is medical testimony that they are indicated and setting out their probable cost Hymel 951 So 2d at 206 In such a case the court should award all future medical expenses which the medical evidence establishes that the plaintiff more probable than not will be required to incur An appellate court should not set aside an award for future medical expenses absent an abuse of the trier of fact s discretion Hymel 951 So 2d at 206 In the instant case the trial court did not award Janet future medical expenses finding that there was not enough certainty in her treating s physician testimony about future treatment to support such an award Based upon our review of the record while we conclude that the trial court erred in failing to award Janet the cost of future surgery for trigger finger release we cannot conclude that the trial court was manifestly erroneous in refusing to award any other sums for future medical expenses With regard to Janet need for future trigger finger release her s treating orthopedic surgeon testified that Janet had been subjected to injections in the thumb for trigger finger and that 70 of patients who have W11 a trigger finger injected will experience a recurrence of the problem When the problem recurs surgery is recommended and her orthopedic surgeon testified that the cost of this surgery is approximately 8 Given the 00 500 testimony clearly establishing more probably than not that she will suffer a recurrence of this problem we conclude that the trial court erred in failing to find that Janet had proved future medical expenses for this surgery in the amount of 8 Thus we will amend the judgment accordingly 00 500 However with regard to future treatment for any increase in post traumatic arthritis in the right hand we note that Janet orthopedic surgeon s testified that the risk is about 3 per year for the rest of Janet life and that s it was possible that Janet who was 64 years old at the time of his testimony would need arthritis related surgery Given this testimony we find no error in the trial court refusal to award any sums for this possible s future treatment CONCLUSION For the above and foregoing reasons the January 11 2010 judgment of the trial court is amended to award Janet the additional sum of 4 representing 8 in future medical expenses reduced by Janet 50 00 500 s fault and the additional sum of 15 in general damages for future 00 000 pain and suffering related to the future trigger finger release surgery also reduced by Janet 50 fault In all other respects the judgment is affirmed s Costs of this appeal are assessed against Colony Insurance Company AMENDED AND AS AMENDED AFFIRMED 21 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 0688 JANET SUE MULLER VERSUS COLONY INSURANCE COMPANY AND WILLIAM H MULLER McCLENDON J concurs in part dissents in part and assigns reasons The policy in question is a Commercial General Liability Policy Clearly the purpose of this type of policy is to cover damages incurred by third parties to whom a named insured or their spouse may be liable as opposed to damages incurred by a named insured However there is no statutory or jurisprudential bar that prevents an injured party solely because he or she is also an insured from recovering under a liability policy based upon the fault of another insured See William Shelby McKenzie H Alston Johnson III Insurance Law and Practice 15 La Civ Law Treatise 182 p 493 3d ed 2006 Under the specific language of the Colony policy at issue an argument may be made that although Mr Muller was not an insured in his capacity as a volunteer worker he was an insured under the language of said policy as Mrs s Muller spouse While I believe the Colony policy was not intended to provide coverage in this instance especially given the general nature of a CGL policy I am unable to find the majority interpretation in favor of coverage in this s instance so strained as to be unreasonable See Gibbens v Whiteside 04 1222 p La 1 Cir 5 915 So 866 870 writ denied 05 1525 La 6 App 05 6 2d 05 16 12 917 So 1116 citing Cadwallader v Allstate Ins Co 02 1637 2d P 4 La 848 So 577 580 Further given that ambiguous policy 03 27 6 2d 1 Significantly the volunteer worker exception was not included under the EXCLUSIONS section of the policy but rather that portion of the policy defining WHO IS AN INSURED provisions must be construed against the insurer and in favor of coverage I am constrained to conclude that the Colony policy provided coverage under these limited circumstances Id However I dissent to the extent that the majority awards additional damages Although Dr Peterson testified that 70 percent of patients who have a trigger finger injection will experience a recurrence of the problem the trial court s could reasonably have found that Mrs Muller chance of recurrence was significantly reduced given the passage of time from the date of injury to the date of trial accorded the Moreover with regard to general damages vast discretion is trier of fact in fixing such awards Hollenbeck v Oceaneering Int Inc 96 0377 96 8 11 685 So 163 172 2d LSA GC p art 1 2324 12 La 1 Cir App This vast discretion is such that an appellate court should rarely disturb an award of general damages Youn v Maritime Overseas Corp 623 So 1257 1261 La cert denied 510 U 1114 2d 1993 S 114 S 1059 127 L 379 1994 Ct 2d Ed In reviewing the general damage award I am unable to conclude that the trier of fact abused its vast discretion in assessing the amount of general damages and would affirm the trial court s award See Bellard v American Cent Ins Co 07 1335 pp 2930 La 08 18 4 980 So 654 674 2d z The trial court noted that three years had passed between the date of the accident and the date of trial 2
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